P L D 1966 Dacca 120 (PLP)

A .I. Akbaor Chowdhury for Petitioner. Md. Fazlul Karim for Respondent No.

3. A. SATTAR, J.‑The petitioner, the respondent No. 3 and one Delwar Hossain Akanda were candidates from Unit No. 4 of Elangi Union Council No. 7, District Bog'ra for election to the r Electoral College. The respondent No. 3 secured 255 votes as against 249 polled by the petitioner and 182 by Delwar Hossain Akanda. The respondent No. 3 was declared elected. The petitioner filed a petition under section 58 of the Electoral College Act challenging the election of the respondent No. 3 on the ground, miter alia, that 26 ballot papers which were counted in favour of respondent No. 3 did not bear the official mark as required by section 40(2)(c) of the Electoral College Act. The Tribunal has found that the allegation of the petitioner is true. It has further been found that out of the votes, secured by the petitioner, 16 ballot papers did not also bear official mark. The Tribunal, however, has refused to set aside the election of the respondent No. 3 though it was contended before it that in view of section 45 of the Electoral College Act these votes could not be taken into account simply because these ballot papers contained initials of the Presiding Officer. The Tribunal has held that as the ballot papas contained initials of the Presiding Officer they could be counted. There cannot be any 'dispute that if 26 votes of the respondent No. 3 were deducted from the total number of votes secured by him and similarly 16 votes were deducted from the account of the petitioner the respondent No. 3 could not be said to have secured the highest number of votes. Section 40 of the Electoral College Act provides that before issuing a ballot paper to a voter it has to be stamped with the official mark and initialed by the Presiding Officer. Section 45 lays down chat the Presiding Officer shall count the ballot papers contained in the ballot box of each candidate excluding the invalid ballot papers, that is to say, the ballot papers which do not bear the official mark or on which anything is marked by the voter by which he can be identified. The positive mandate of the section, therefore, on the Presiding Officer is not to count the ballot papers which do not bear the official mark. This provision, in our view, cannot by any stretch of imagination to be only directory and not mandatory as has been the contention of the learned Advocate for the respondent No.3. Regard being had to the above facts the 26 ballot papers of the respondents Nos. 3 and 16 of the petitioner could not be counted in their favour. It has been contended on behalf of the respondent No. 3, that as, there was no challenge with regard to the genuineness of the ballot papers in question and as the ballot papers contained the initials of the Presiding officer they were not liable to be rejected or declared invalid. We have already pointed out the provision of law in this regard and in that view are unable to accept the contention of the learned Advocate for the respondent No.

3. Learned Advocate has then contended that as an election can only be set aside on the finding that the result of the said election has been materially affected by reason of failure of any person to comply with, or contravention of any provision of the Act or the rules the omission complained of cannot be the ground for setting aside the election of the respondent No. 3 as it cannot be said to have materially affected the result of the said election. This contention again cannot be accepted. We have already shown that if these votes were not taken into account in view of the provisions of section 45 of the Electoral College Act then the only conclusion that would have followed was that the result of the election had been materially affected or in otherwise the petitioner would not have been declared elected to the Electoral College and the petitioner could claim to have been elected. In this view of the matter we feel that the order passed by the Tribunal cannot be sustained. In the result this rule is made absolute. The order of the Tribunal is declared to have been passed without lawful authority. The case will now go back to the Tribunal for passing an order in accordance with law and in the light of the observations made above. There will be no order as to costs. SALAHUDDIN ARMED, J.‑I agree. K. B. A. Rule made absolute.