NAZEM UDDIN Vs. ELECTION TRIBUNAL

JUDGEMENT

(1.) This appeal by leave at the instance of the elected Chairman is from judgment and order dated 10-3-1999 passed by a Division Bench of the High Court Division in Writ Petition No. 519 of 1999 discharging the Rule and upholding the order dated 30-7-1998 passed by the Election Tribunal Moheshkhali, Coxs Bazar in Election Tribunal Case No. 1 of 1998 allowing an order of amendment.

(2.) Appellant and respondent Nos. 2-7 contested the election for the office of Chairman Shaplapur Union Parishad held on 22-12-1997. In that election appellant was declared elected chairman securing highest votes of 2446, respondent No. 2 secured the next highest votes of 1742 and respondent No. 3 secured third highest votes of 1686. Respondent No. 2 filed an election petition before the Election Tribunal Moheskhali alleging that his co-villager respondent No. 3 a disqualified candidate was set up by the appellant to contest the election to adversely affect the chances of election of the election petitioner respondent No. 2 in spite of objection by him. Though his nomination paper was rejected by the Returning Officer on the grounds of his being loan defaulter of Sonali Bank and tax defaulter of Shaplapur Union Parishad the same was illegally allowed by the appellate officer. As a result in the said election appellant was elected chairman securing 2446 votes. Had respondent No. 3 a disqualified candidate not been allowed to contest the election respondent No. 2 would have secured much more votes than secured by him from his own ward and contiguous wards and would have been elected chairman. So he filed election petition on 5-3-1998 after the result of the said election was published in the official gazette on 22-2-1998, Appellant has been contesting the election petition by filing a written statement denying the allegations. Appellant also filed an application under Order 7 rule 11 of the Code of Civil Procedure for rejection of the election petition. Respondent No. 2 also filed an application for amendment of the Election Petition. By order dated 30-7-1998 prayer for amendment was allowed by the Election Tribunal. Being aggrieved by the same appellant filed Writ Petition No. 2567 of 1998 in the High Court Division and obtained a Rule. Respondent No. 2 contested the Rule by filing an affidavit-in-opposition. By the impugned judgment the Rule was discharged.

(3.) High Court Division after considering the amendment with reference to the statements made in the election petition held that amendment in paragraph 8 of the election petition is nothing but reiteration of the statements already made in the election petition and amendment made in the prayer portion is superfluous and not necessary because the election petitioner has already prayed for relief that the election as a whole is void and thereby no contravention of the provision of rule 45 of the Election Rules has been committed.