Decided on November 14,1989

Laizu Begum Appellant


SHAHABUDDIN AHMED, J. - (1.) In these three appeals by special leave a common question is involved. It is whether Rule 6 of the Union Parishad (Election) Rules, 1983, as to fixing polling stations and change thereof shall apply to a re-poll and if so, whether a re-poll, held in violation of this Rule, will be necessarily vitiated. The High Court Division, without specifically expressing its view on this question, disposed of the matters observing that the question being connected with disputed questions of fact as to whether the result of the election has been materially affected by the change of polling stations should better be determined by election-petitions instead of by writ petitions.
(2.) These appeals have arisen from Writ Petitions No. 8 of 1989 and 26 and 27 of 1988. Elections for the Offices of Chairmen of three Union Parishads, namely Pandal, Bajra and Daldalia, in the district of Kurigram, were first held on 10 February 1988. There were three to four polling stations in each of these Unions, but due to disturbances the election was stopped by the Presiding Officers in three polling stations, one in each Union. The Returning Officer, by an order dated 5 April 1988, fixed the date for adjourned polls in those three polling stations on 14 April 1988. On 13 April, 1988, that is, one day before the election, he changed the polling stations; from Apurkhata Government Primary School to Tanuram Apurkhata Government Primary School in Pandal Union, from Khamar Magura Government Primary School to Shahaberkuti Aftadia Madrassa in Daldalia Union and from Bajra Paschimpara Dakhil Madrassa to Bojra Paschimpara Maktab in Bazra Union. Polls were taken accordingly on the following day in spite of objection raised by some of the contesting candidates; particularly the respondents. The result of the election was announced and it was going to be published in the official Gazette by the election Commission. At this stage the election in each of these three Unions was challenged by the three separate writ petitions, as mentioned above, taking the ground that the mandatory provision in Rule 6 which requires publication of the list of polling stations at least fifteen days before the polling day was wilfully disregarded by the Returning Officer, that the Election Commission's order not to change the polling stations at the eleventh hour was disregarded by him and further that the sudden change of the polling stations created difficulties for the voters who could not cast their votes in consequence thereof.
(3.) Each of these writ-petitions was contested by the respective successful candidatesthe respondentson a common ground that there was no malafide on the part of the Returning Officer in changing the polling stations, that the Returning Officer did not alone take the decision to change the polling stations but he acted on the advice of the local administration including the Deputy Commissioner, the Superintendent of Police and the Nirbahi Officer, who thought it expedient to change the polling stations for safety of the ballot papers and security of the Presiding and Polling Officers, that the Election Commission was consulted and its approval was obtained for the change of the polling stations and that it being an adjourned poll in each case and not a new election, no voters or candidates were misled by the change of place. The High Court Division after hearing the parties discharged the Rules. We granted leave on the same grounds as were agitated in those petitions and, in addition, a ground for malice in law was included, that is, whether the Returning Officer acted in wilful disobedience of the Election Commission's order.;

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