ALTAF HUSSAIN Vs. ABUL KASHEM

JUDGEMENT

(1.) In all these appeals by special leave, a common question of law being involved, they have been heard together and are going to be disposed of by this judgment. In each of these appeals a dispute as to the result of election for the office of chairman of six Union Parishads has been raised. On conclusion of election, counting of votes by the Presiding Officers was completed and declaration of result by the Returning Officers was made and notification of the result in official Gazette was left to be published by the Election Commission. But the latter cancelled the result of election in one or more polling stations out of several polling stations in each Union, and directed repoll. The affected candidates challenged the orders of the Election Commission in six separate writ petitions taking the ground that when election was held peacefully and no disturbance resulting in the stoppage of poll and requiring fresh poll was reported by the concerned authorities, the Election Commission had no jurisdiction to interfere in the matter. This contention has been accepted by the High Court Division which declared invalid the orders for repoll. Leave has been granted to consider and examine the extent of the Election Commission's power to direct fresh poll within the framework of its general power of "direction, control and superintendence" over all matters relating to election for Union Parishads.

(2.) Elections of Union Parishads are held by the Election Commission under the Local Government (Union Parishads) Ordinance, 1983 and the rules framed thereunder, called Union Parishads Election Rules 1983. The Election Commission is a body constituted under Article 118 of the Constitution of Bangladesh. Article 119(1) of the Constitution describes the functions of the Election Commission relating to election to the office of the President and Members of Parliament. Article 119(2) gives the Election Commission power "to perform such other function as may be prescribed by this Constitution or by any other law". Article 119(2) thus indicates the source of authority, power and jurisdiction of the Election Commission in respect of elections other than that of the President and Members of Parliament. "Any other law", in the case of election for Union Parishads, is the Local Government (Union Parishads) Ordinance 1983 and the Rules framed thereunder, namely, Union Parishads Election Rules, 1983. Section 24 of the Ordinance as referred to above provides:

(3.) In none of the instant cases the Presiding Officer sent any report about disturbances or stoppage of poll, nor any person or candidate complained to the Presiding Officers about any disturbance. The Presiding Officers counted the ballot papers during which time no grievance was made about the counting. Similarly, no allegation was also made to the Returning Officers about any of the elections. But allegations were made after the declaration of results. The Election Commission then either enquired the matter itself, or got it enquired by some other officers, such as, Deputy Commissioner, Nirbahi Officer or District Election Officer and cancelled the election in some of the Centres and directed repoll there. The question is from where the Election Commission got power to interfere at this stage and direct repoll.