Act/Law wise: Judgment of Supreme Court of Bangladesh


Representation of the People Order, 1972
Section/Order/Article/Rule/Regulation Head Note
Articles 3 and 4

The Election Commission is constituted under Article 118(1) of the Constitution and it consists of a Chief Election Commissioner and such other Election Commissioners as may be appointed by the President and they, in fact, constitute the Election Commission for Bangladesh. In that sense, Election Commission is a composite body, an individual member can only act under section 4 of the Order when he is authorised by the Commission itself.
In the instant case, there is no delegation/authorization by the Commission itself. The Chief Election Commissioner being unwell he went on leave for treatment abroad and he verbally nominated a member to act as Acting Chief Election Commissioner. This may at best be said to be a direction of the Chief Election Commissioner to perform functions of the office in his absence as Acting Chief Election Commissioner, but for exercising and performing any powers or functions under this Order he must get authorisation from the Commission itself, otherwise his action under the Order will be coram non judice and without jurisdiction. The functions that the Acting Chief Election Commissioner was performing in the instant case, was a function vested in him under this Order.
The Acting Chief Election Commissioner had acted coram non judice in exercising his power in this particular case.
Jatiya Party Vs Election Commission for Bangladesh and others, 21 BLD (AD) 11. ....View Full Judgment

Article 12(1) [Explanation-V]

read with
Bank Companies Act, (XIV of 1991)
Section 27 ka ka
Sonali Bank had the legal authority to send the letter dated 30.11.2010 to the Returning Officer, Tangail, in connection with the election process under RPO particularly for making decision on the validity of nomination paper of the appellant in view of clause (m) of proviso to Article 12(1) and Explanation V thereof read with section 27 Ka Ka of Bank Companies Act, 1991. In the light of the finding made in the judgment it is abundantly proved that the appellant was a bank loan defaulter on the date of submission of his nomination paper.
Md. Abul Kashem. -Vs- Mahmudul Hasan @ Major General Mahmudul Hasan (Rtd.) and others 1 ALR (AD)108 ....View Full Judgment

Articles 14(5) and 51(l)(a)

Respondent No. 2 having raised the question of petitioner's being defaulter at the time of election should be decided by the Election Tribunal after recording evidence as has been correctly found by the High Court Division and it has not acted arbitrarily or fancifully in awarding the cost of Taka 10,000.00 as the writ-petitioner has suppressed the fact. Mahbubur Rahman vs Divisional Election Tribunal and others 6 BLC(AD) 45. ....View Full Judgment

Article 16(4)

Allocation of protected election symbols in by-election-Election dispute at the intermediate stage of the election process does not fall within the jurisdiction of High Court Division under article 102 of the Constitution. Party Joint Secretary General has the locus stand! to contest the dispute over allocation of election symbol Withdrawal of candidature does not give a walkover to the candidate of the rival parly with regard to Hie allocation of symbol of other parly Jatiya. Party. Joint Secretary General Vs. Molussim Btilah and ofhers. 5 MLR (2001) (AD). ....View Full Judgment

Articles 19(b) and 20(1)

The power of the Election Commission can only be exercised by it, and not by any of its members alone.
The Appellate Division held that the controversy was with regard to allocation of symbol which the Returning Officer was authorised to do under article 20(1) of the Order and that order was challenged before the Election Commission and the Election Commission of Bangladesh has got the power of review under article 91(b) of the Order. Thus the Election Commission has got the authority to decide the matter. Without entering into the question as to whether the authority exercised by the Acting Chief Election Commission is a quasi judicial order or an order in its administrative capacity, it can be safely said that there was no delegation by the Election Commission itself to perform such function under the Order.
Jatiya Party -Vs.- Election Commission for Bangladesh and others (Civil) 12 ALR (AD) 54-57 ....View Full Judgment

Article 20(1)(a)

Article 20(1)(a) of the Order provides that if there are more contesting candidates than one in respect of any constituency, the Returning Officer shall allocate, subject to any direction of the Commission one of the prescribed symbols to each contesting candidate and in so doing shall, so far as possible, have regard for any preference indicated by the candidate. Jatiya Party represented by Md. Moidul Islam, Joint Secretary General Vs Motassim Billah and others, 20 BLD (AD) 69. ....View Full Judgment

Article 25(2)

Whether the polls in 7 Centres of Munshiganj-4 Constituency were at all interrupted or not and whether the same was for the reasons beyond the control of the Presiding Officers and that it could not resume during the polling hours could only be decided taking evidence before the Tribunal in the event of any application before the Election Tribunal by any party to the election. On being reported about the obstruction and interruption and that the poll has been stopped the Election Commission ordered for re-election in those centres as the entire election process has to be completed by the Election Commission in order to promote the cause of democracy. The disputed questions of fact that emerged in this leave petition is also beyond the scope and cannot be decided in this jurisdiction. There is no illegality in the impugned order or any arbitrary exercise of power which is malafide or that the memo was issued to circumvent the provision of law resulting in malice in law or want of jurisdiction resulting in coram non-judice as alleged by the petitioner but pursuant to memo dated 1-10-01, fresh poll was ordered in 7 centres including 3 centres under the provision of Article 25(2) of the Representation of the People's Order. Mohiuddin Ahmed (Md) vs Chief Election Commissioner and others 7 BLC (AD) 172. ....View Full Judgment

Article 31 (2)(d)(e)

The Tribunal was justified in not excluding the ballot papers from counting which contained a part of the official seal, because the law has not demanded in a mandatory language the presence of a full seal on the ballot paper before its exclusion from count. Moulana Delwar Hossain Saydee Vs Sudhangshu Shekhor Holder and others, 20 BLD (AD) 11. ....View Full Judgment

Article 31 and 36(4)

Exclusion of ballot papers which do not beat official marks —
The legal position is thai a ballot paper shall bear full official mark on ils back and (he counter foil on ils front. Bui during the rush hour of brisk polling it may nol be possible lo follow the rule strictly. In such ;i siuialiuii ballot papers bearing psirlial official marks are valid and should not bt excluded from the count. Only the ballot papers bearing no offieial mark either full Of partial shall be excHidpil from count. Hossaiti Suijdee vs, S. S, Haider and otlwrs. 5 MLR (2000) (AD). ....View Full Judgment

Article 31(1V)

Article 31(1V) since amended by Act 23 of 1994-Pourashava Ordinance 1977-Section 20— AdmUsibllity of news item into evidence —
The Election Commission has authority under law to regulate Us own procedure relalfn^ (o Ils ImicLions. There was no waul of jurisdiction of the Eleclion Commission lo InLrotluce identity cord for the purpose of holding election In Tongi PourasJiJiva. News published til a news paper by ilsdf is not admissible evidence unless i he person who pub) short the news is examined, Md. Malmram Ali Vs. Chief Election Commissioner and others. 1. MLR (AD). ....View Full Judgment

Article 36(4)(i)(iv)

The ballot papers that are required to be excluded from the count are fully described in Article 36(4)(i)-(iv) of the Order. Neither the Tribunal nor the High Court Division has any jurisdiction to add any other extraneous requirement other than those contained in sub- clauses (i)-(iv) of clause (4) of Article 36. These sub-clauses do not require that a ballot paper is to be excluded from the count if it does not contain the Code number or the signature or initial of the Assistant Presiding Officer. The High Court Division acted without jurisdiction in excluding the ballot papers of both the appellant and the election-petitioner containing the aforesaid omissions. Further, from the election petition it does not appear that the election-petitioner made any allegation as to the illegal counting of votes by the Presiding Officer of Char Baleswar polling centre. Moulana Delwar Hossain •Saydee Vs Sudhangshu Shekhor Halder and others, 20 BLD(AD) 11 ....View Full Judgment

Article 49(4)

Security deposit of an Election Petition is a mandatory pre­condition without which such petition is not maintainable—
An Election petition is not maintainable without security deposit. Security deposit need not be made by the petitioner himself. Such deposit may be made either by the petitioner himself or by his lawyer or authorised agent which shall be sufficient compliance with the requirement of law. Saber Hossain Chowdhury Vs. Bangladesh Election Commission and others 11 MLR (2006) (AD) 26. ....View Full Judgment

Article 49 (2)

Assistant Presiding officer performing duties in a polling centre by impersonation for sometime without any overt act for any candidate—
­An unauthorised person acting for some time in a polling centre as Assistant Presiding Officer by impersonation but without doing any partisan act or canvassing for the returned candidate or such situation having no influence on the result of the election, the election of the centre can not be declared viod and fresh poll need not be ordered. Delwar Hossain Saydee (Moulana) Vs. S. S. Haider and others. 5 MLR (2000) (AD) 150. ....View Full Judgment

Articles 49(4) and 51

The words that the petitioner shall deposit, as contained in Article 49(4) of the Representation of the People Order, 1972 do not mean that the petitioner shall, in person, have to deposit and not by anyone else on his behalf and, if so, the Election Petition shall not be registered. Thus, the presenting of the Election Petition with deposit of Taka two thousand is a must and it is mandatory but the mode of depositing the same by the petitioner alone is not mandatory, rather it is directory. Giasuddin Quader Choivdhury. vs ABM Fazle Karim Chowdhury and others 9 BLC (AD) 10. ....View Full Judgment

Articles 49 & 65

In the facts of the instant case the question which needs to be answered is whether or not the appellant had any other avenue open to him to redress his perceived grievance; more precisely, whether he could have availed the Election Tribunal forum. The Election Tribunal has jurisdiction to hear all election matters so long as the applicant qualifies under provisions of the Representation of the People Order, 1972 (R.P.O. 1972) It has been held by this Division that the election process starts from the notification issued by the competent authority declaring the election schedule and culminates in the declaration of result of the election by a gazette notification. We are of the view that the appellant has remedy under the R.P.O. 1972. which would be available to him after the election takes place. Hence, Appellate Division does not find any illegality or infirmity in the impugned judgment and order of the High Court Division, and accordingly, the appeal is dismissed, without however, any order as to costs. .....Bangobir Kader Siddiqui =VS= Chief Election Commissioner, (Civil), 2017 (2)– [3 LM (AD) 169] ....View Full Judgment

Article 49(1) with Section 2(ii)

The most significant thing is that for the purpose of filing an election petition under article 49(1) of the RPO only the phraseology “candidate” has been used. In other words, a proposed “candidate” has been given the locus standi to file an application raising an election dispute. Admittedly the candidature of the election-petitioner was rejected by the Election Commission on the ground of being a defaulter, he is surely a person who was proposed as a candidate for election as a member of the Parliament of the Constituency in question. But the High Court Division failed to comprehend the proper meaning of “candidate” given in section 2(ii) of the RPO vis-à-vis article 49(1) thereof in observing that “the petitioner being a candidate of the 10th National Parliamentary Election did not act rather he was an intending candidate and wanted to become a candidate.” And we hold that the petitioner being a proposed “candidate” for election as a Member of the Parliament for the Constituency in question, he had every locus standi to file the election petitions and those were maintainable in law. .....Major Gen. Abdus Salam (Rtd) =VS= Bangladesh Election Commission & another, (Civil), 2016-[1 LM (AD) 192] ....View Full Judgment

Article 50 and 58(a)

Article 50 of the Order mentions the parties who are to be impleaded in an election petition but it does not prohibit impleading of parties who may be considered by the election petitioner as proper parties. When all the necessary parties have been impleaded in the election petition, the joining of the Returning Officer and the Assistant Returning Officers cannot by itself be a ground for dismissal of the election petition under Article 58(a) of the Order. Advocate Mohammad Abdul Hamid Vs. Md. Fazlur Rahman, 18 BLD (AD) 96. ....View Full Judgment

Article 50

Article 50—Necessary parties to Election Petition-
Under Clause (a) of Article 50 all the contesting candidates and under clause (b) other persons against whom allegation of corruption and illegal practices are made, must be made respondents to the Electi m. Petition. An Election Petition cannot be dismissed by reasons of implevling the Returning officer and the Assistant Returning Officer. Acioocate Mohammad Abdul Hamid Vs. Md Fazlur Rahman. 3, MLR (1998) (AD) ....View Full Judgment

Article 62(3)

Appeal- Code of Civil Procedure, 1908— Order 41 Rule 14(3)— Dispensing with service of notices upon non-contesting parties in appeal— Applicability of—
Appeal is the continuation of Electicn Petition. When provisions of the Code of Civil Procedure, 1908 not inconsistent with the Order of 1972 are made applicable to the proceeding of the Election Petition, the same provisions are equally applicable to the appeal arising out of Election Petition and as such the service of notice in appeal upon the non-contesting parties can be dispensed with under Order 41 rule 14(3) of the Code of Civil Procedure. Delwar Hossain Saydee (Moulana) Vs. Sudhangsha Shekhar Haider and others 4, MLR (1999) (AD) 252. ....View Full Judgment

Article 63(1) (b), (c) & 12(1) (n)

Defaulted in paying Telephone bill–
The provisions of clause (b) of Article 63(1) attracts clause-(n) to the proviso of Article-12(1) of the RPO. Therefore, the High Court Division came to a correct finding that the appellant defaulted in paying telephone bill and that accordingly, the he was disqualified from being elected as per clause (n) of proviso to Article 12(1) of the RPO. It is important to note here that if the allegation brought by respondent No.1 was within the ambit of the provisions of clause- (c) to sub-article (1) of Article-63 then the High Court Division would be required to give a finding that because of corrupt or illegal practices committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent, the result of the election has been materially affected. But in the case in hand such a finding in not necessary because sub-clause(b) is independent of clause(c)of Article 63(1) of the RPO. We do not find any substance to interfere with the impugned judgment because the ultimate decision of the High Court Division is correct. Accordingly the appeal is dismissed without any order as to costs. .....Abul Kashem(Md.) =VS= Mahmudul Hasan, (Civil), 2018 (1) [4 LM (AD) 15] ....View Full Judgment

Article 64, 65(1) and 66(1)

Articles 64, 65(1) and 66 (I) of the RPO are to be considered independently. If Article 64 of the RPO is not given effect to for the disputes mentioned in Article 63(1) of RPO, the Article 64 becomes redundant. Abul Kashem vs Major General Mahmudul Hasan (Rtd.) 17 BLC (AD) 160. ....View Full Judgment

Article 66(1)

When there is equality of votes between two or more contesting candidates and that the addition of one vote for one such candidate would entitle him to be elected, the High Court Division shall so inform the Commission in such a case and then the Election Commission shall after expiry of the period specified for filing appeal before this Division direct a fresh poll in respect of the said candidates. Abul Kashem vs Major General MaJimtidul Hasan (Rtd.) 17 BLC (AD) 160. ....View Full Judgment

Dispute as to age of candidate—
An objection as to the age of a candidate and acceptance of his nomination by the Returning Officer is an election dispute, the remedy against such dispute lies in the Election Tribunal and not in the writ jurisdiction of the High Court Division. Md. Mahmuduf Hoque Vs. Md. Hedayetullah & otliers. 1, MLR (1996) (AD) 234. ....View Full Judgment