P L D 1966 Dacca 608 (PLP)

SALAHUDDIN AHMED, J.‑In this application the petitioner has challenged an order of the Election Tribunal constituted under the Electoral College Act setting aside the petitioner's election. Facts leading up to the issue of the Rule may briefly be stated as follows : At an election of the Member of the Electoral College of Kushangal Union Council, Unit No. VII, Police Station Nalchity, District Bakerganj the petitioner and opposite- party No. 1 along with some other persons were the candidates. At the end of the poll as a result of the counting of the votes, it was found that petitioner and opposite‑party No. 1 had secured equal number of votes. In consequences under the provisions of section 45 (2) of the Electoral College Act, 1964 drawing a lot in respect of these two candidates became necessary. It appears that the Presiding Officer apprehended personal molestation because of the fact that the parties were notorious and influential persons, and that the result in favour of the one or the other might result in trouble. The petitioner's allegation is that with the consent of all the parties concerned, the presiding officer l0d the drawing of the lot at the Thana Headquarters in presence of all the parties concerned without any objection from any quarters. The result of the lot being in favour of the petitioner, he was duly elected as a. Member of the Electoral College. Opposite‑Party No. 1 thereafter filed an election petition before the Election Tribunal. Before the Election Tribunal both the 'parties appeared and they decided not to examine any witness but relied solely "on the exposition of legal points". The only point, therefore, that was canvassed at the trial was whether the drawing of the lot in case of a tie some hours after the close of the poll and at a place different from the polling station was legal or not. The Tribunal came to a finding that there was in fact a contravention of the provision of the Electoral College Act and that the drawing of the lot in an irregular manner vitiated the election. In that view of the matter the Election Tribunal set aside the election of the petitioner. The petitioner, therefore, approached this Court and obtained this Rule. An affidavit in opposition has been filed on behalf of opposite‑party No. 1 Moktar Ali wherein nothing has been said to show that in the drawing of the lot any unfair means was adopted or that the Presiding Officer who held the draw was in any way influenced by any circumstance. Mr. Abdul Haque appearing on behalf of the petitioner has conceded that there has been in fact a contravention of the provision of section 45(2) of the Electoral College Act which enjoins that as soon as the counting is over after the close of the poll if it be found that there is equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared to be elected, the Presiding Officer shall forthwith draw a lot in respect of such candidates, and the candidate on whom the lot‑ falls shall be deemed to have received the highest number of votes entitling him to be declared elected. It has been, however, strenuously contended that a mere finding that there has been a contravention of the provision of the Act is not enough to entitle the election tribunal to set aside an election and that in order to set aside an election, the Tribunal must come to a further finding that the result of the election has been materially affected by reason of the said contravention. He has argued that no where in the body of its order has the Election Tribunal come to any finding that this contravention has materially affected the particular election. On the other hand Mr. Akhtaruddin Ahmed who has appeared on behalf of respondent No. 1, has argued that mere contravention of such an important provision as section 45(2) of the Electoral College Act and the circumstances, viz. the drawing of the lot was held at a place different from the polling station and quite sometime after the counting had been done, are enough to satisfy the Tribunal that the result of the election has been materially affected by reason of the aforesaid contravention. Rule 36 (I‑A) of the Rules framed under the aforesaid Electoral College Act reads as follows :‑ "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." It is evident from this Rule that jurisdiction of the Tribunal to set aside an election depends upon two facts :‑(1) that there has been a contravention of a provision of the Act or the Rules or a failure to comply with any provision of the Act or the Rules; and (2) that by reason of such a contravention or failure, the result of the particular election has been materially affected. In the present case all that has been found by the Election Tribunal is, and this is not disputed by the parties, that there has been in fact' a contravention of section 45 (2) of the Electoral College Act. As to the second condition required under section 36 (1‑A), we may state that there is absolutely no evidence whatsoever to enable the Election Tribunal to hold that the result of the election has in fact been materially affected by reason of such contraven tion. As may have been noticed already both the parties refrained from examining witnesses before the Tribunal. There was even no allegation before the Election Tribunal, that in the drawing of the lot at the Thana‑Headquarter any unfair means was actually adopted or that any undue influence was brought to bear upon the Presiding Officer in the discharge of his duties, namely, the drawing of the lot as required under the law. Even in the affidavit in opposition made before this Court the opposite‑party has made no allegation that any such unfair means was adopted or that any undue influence was brought to bear upon the Presiding Officer. In such circumstances there cannot possibly be any finding that the aforesaid contravention has in fact materially affected the result of the election. We have already held elsewhere that the proceeding before the Election Tribunal constituted under the Electoral College Act, 1964, is a judicial proceeding and it must, therefore, conform to certain fundamental procedure applicable to a judicial proceeding. One such procedure applicable to a judicial proceeding is that the finding must be based upon evidence. In the present case as we have already noted there is absolutely no evidence to support a finding that the particular contravention has in fact materially affected the election. Mr. Akhtaruddin's contention that the mere fact that the lot was held at a place other than the polling station and some hours after the holding of the Count are such strong circumstances that an inference that ‑the aforesaid contravention has materially affected the election is inescapable. We are unable to accept this contention. Whether an election has been materially affected by a certain contravention of the provision of the Act or the Rules is a question of fact which has to be determined upon evidence. In the present case as we have stated more than once, no evidence was at all led to the effect that the said contravention materially affected the election, and therefore, the Election Tribunal could not have come to any finding that the " said contravention had in fact materially affected the election. The order of the Tribunal setting aside the election of the petitioner is, therefore, illegal and cannot be supported. For the reasons given above, we make the Rule absolute and declare that the order of the Election Tribunal dated the 10th April 1965, in E. T. Case No. 46‑5/538 has been passed without any lawful authority and is, therefore, of no legal effect. Having regard to the facts and circumstances of the case we make no order as to costs. A. M. SAYEM, J.‑I agree. K. B. A Rule made obsolete.