P L D 1967 Dacca 771 (PLP)

SALAHUDDIN AHMED, J.‑In this rule the petitioner has challenged an order of the Election Tribunal constituted under the Electoral College Act, 1964, declaring the election of the elector for Unit No. VI of Nashashan Union Council within police station Naria in the District of Faridpur held on 18‑11‑64 as void and directing a fresh election for the said Unit. The petitioner and respondent No. 3 were the only two contesting candidates at the aforesaid election. On the conclusion of the poll when the Presiding Officer counted the votes he found that the petitioner had secured 177 votes as against 176 votes secured by respondent No.

3. The petitioner was, therefore, declared elected as the elector for the said Unit. Having been dissatisfied with this result respondent No. 3 filed an Election Petition before the Election Tribunal and by agreement between the parties the only issue that was submitted for its consideration was whether the Presiding Officer counted some invalid ballot papers in favour of the petitioner (respondent No. 1 in the Election Petition). Accordingly the sealed packets containing the ballot papers of both the candidates were opened by the Tribunal and on examination and recounting in presence of both the parties and their lawyers, it was found that each party had obtained 177 votes. In other words respondent No. 3 had also secured 177 votes instead of 176 as originally counted by the Presiding Officer. Out of 177 ballot papers cast in favour of the petitioner, four baliot papers were found to bear cross marks (X) on them. On a consideration of the materials before it, the Tribunal found that the aforesaid cross marks did not fall within the mischief of section 45(1)(b) of the Electoral College Act, 1964 inasmuch the marks being similar were not such as to identify any one of the four voters individually. It was held that there were no invalid ballot papers cast in favour of the petitioner. The Tribunal therefore, disposed of the case in the following terms:‑ "As there is no provision in the Act and Rules for me to draw a lot in respect of the petitioner and Respondent No. 1, I declare the whole election as void and order that a fresh election for the unit in question be held in accordance with the provisions of law." It has been contended on behalf of the petitioner that the Tribunal exceeded its jurisdiction by recounting the votes and finding that respondent No. 3 had secured 177 votes instead of 176 as originally found by the Presiding Officer. It has been argued that as both the parties before the Election Tribunal had unanimously agreed to the determination by the Tribunal of only one point, namely, whether any invalid ballot paper had been cast in favour of the petitioner, the Tribunal could not of its own motion recount the votes of Respondent No. 3 as the accuracy of his votes was not in dispute between the parties. We do not think there is any substance in this contention. The agreed issues ' between the parties necessarily involved the opening of the packets containing the ballot papers cast in favour of the two candidates. The packets having thus been opened it was discovered that respondent No. 3, too, had secured the same number of votes, namely, 177 as the petitioner. It would have been a traveresty of justice if the Tribunal had s but its eyes to the actual fact before it and had ignored to give effect to it. The Tribunal was perfectly right in not only finding that both the candidates had secured equal number of votes but also in giving effect to such a finding. While declaring the whole election void and ordering a fresh election for the Unit in question, the Tribunal has observed that there is no provision in the aforesaid Act and the Rules framed thereunder empowering it to draw a lot in respect of the two contesting candidates. Having regard to the very wide powers given to the Election Tribunal under section 60(2) of the said Act we asked the learned Advocate‑General to place before us his point of view on the validity of the aforesaid observation made by the Tribunal, and he has been good enough to do so. Section 60(2) from which flows the powers of the Tribunal is as follows:‑ "Subject to any rules made in this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit." Rules 35(5)(6) and 36(1‑A) which are relevant for our purpose are as follows:‑ "35(5) An election petition shall set forth clearly the grounds on which the petition is filed and the relief sought. (6) The petitioner may claim any of the following declarations‑ (a) that the election of the returned candidate is void; or (6) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (c) that the election as a whole is void." "36(1‑A) The Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules." Reading the Act and the Rules together it appears to us that the Tribunal has been given very wide discretion in the matter of passing orders in an election case. The Rules clearly indicate that the Tribunal not only can declare the election of the returned candidate as void but also can declare the petitioner in the election case or some other person as duly elected. Rule 36(1‑A) merely provides under what circumstances the election as a whole may be declared void by the Tribunal. It does not in any way limit or circumscribe the very wide powers given to the Tribunal under section 60(2) of the Electoral College Act. In this view of the matter it seems to us that the Tribunal is empowered in a suitable case to draw a lot itself and to declare the candidate in whose favour the lot falls as elected, although there is no such specific provision either in the Act or in the Rules framed thereunder. The Tribunal having been authorised to declare the petitioner or some other person as duly elected as a necessary concomitant has also been empowered to do such ancillary acts as are necessary to make the declaration. Having regard to the fact, however, that the order of the Election Tribunal declaring the election as a whole void and ordering a fresh election does not suffer from any illegality, we do not think it necessary to interfere with the order. We accordingly discharge the rule, but having regard to the facts and circumstances of this case we make no order as to costs. ABDUL HAKIM KHAN, J.‑I agree. K. B. A. Rule discharged.