1. SALAHUDDIN AHMED, J.--In this Rule nisi the petitioner has challenged the legality of an order of the Election Tribunal, Comilla dismissing the petitioner's Election Petition for set--ting aside the election of respondent No. 2 as a member of the Electoral College from Unit No. 1722 Talsahar No. IV, District Comilla.
2. The election in question was held on the 14th November 1964 and it was contested by two candidates, namely the petitioner and respondent No. 2 and the latter having secured the highest number of votes, namely, 343 as against 340 votes secured by the petitioner was declared duly elected as a mem--ber of the College. The petitioner having been aggrieved by this election filed an Election Petition which came up for hearing before respondent No. 1 the Election Tribunal, Comilla. After the case had been adjourned on numerous occasions it was finally heard on the 12- 5-1966 and was disposed of by the impugned order dated the 16-5-1966. The petitioner chal-- lenged the legality of the election of respondent No. 2 mainly on four grounds, namely, (1) that the Presiding Officer had stayed with respondent No. 2 (respondent No. 1 in Election Petition) on the night previous to the election and had can--vassed for him and addressed a meeting consisting of about 150 persons in the light furnished by a petromax lamp in the house of respondent No. 2; (2) that the respondent was below the age prescribed for a candidate at the election; (3) that there have been six cases of what is popularly called double voting; and (4) there have been several cases of false per--sonation. On a consideration of the evidence and the mate--rials in the case the Election Tribunal found that there was no basis or foundation for any one of the alleged grievances of the petitioner. The Tribunal further held that the election was done in a fair, peaceful and orderly manner and that the res--pondent was declared elected on the merit of the election, and as such, it rejected the petition.
3. Mr. Farid Ahmad, learned Advocate appearing on behalf of the petitioner has contended in the first place that inasmuch as the Election Tribunal has refused to consider the question of age of the respondent, the impugned order is illegal. The allegation contained in this contention does not appear to be true as is evident from the following passage extracted from the impugned order of the Election Tribunal:- "As regards the age of the returned candidate, the voters list clearly shows that he was not below the prescribed age at the time when he was contesting the election. To this effect an affidavit was sworn by the elder brother of the returned candidate in absence of his deceased father. As against that a School Certificate specifying the age does not carry any meaning. Because in our country no body takes care of their age properly at the time of admission into the School. Moreover, this was the condition precedent to the scrutiny. The petitioner should have pointed it out at the time when a scrutiny was being conducted. S,), the petitioner's chal--lenge of age at this stage will mean that after his defeat he has been trying to create unnecessary evidence which is too feeble to rebut the recorded age of the voters list which is fully supported by the affidavit."
4. It appears from the evidence that the petitioner has had no personal knowledge about the date of birth of the respondent. On the contrary the respondent besides producing an affidavit sworn by his elder brother as to the date of birth of respondent No. 2 has categorically stated that his date of birth is Ist March 1939 and that the alleged certificate used by the petitioner is a fictitious one. Be that as it may, the Tribunal has decided the question of age on a consideration of the evidence in the case and therefore, there is no substance in this contention.
5. Mr. Farid Ahmad has next contended that having regard to the positive evidence that the Presiding Officer had stayed in the house of the respondent on the night previous to the polling and had addressed a large number of persons and asked them to vote for the respondent, the contrary finding of the Tribunal on this question was without jurisdiction. This contention is also without any substance as is evident from the following passage occurring in the order of the Election Tribunal:- "After studying the evidence on record carefully I find that the allegation regarding the Presiding Officer's interference and his staying with respondent No. 1 during the preceding night of the election was nothing but a wild story purely concocted and fabricated. I am not prepared to believe that a Presiding Officer who was to take only 15 minutes time to reach the centre would stay in anybody's house. It is also fantastic to suppose that the Presiding Officer did canvass in presence of 150 men in the light of a Petromax particularly against a person who was a sitting Chairman."
6. It may be mentioned here that the petitioner was the sitting Chairman of the Union Council at the time of the election and that the voters list of the particular Union was prepared under his care and supervision. Besides the existence of clear evidence on the record in support of the finding of the Tribunal there is this telling circumstance and that petitioner at no point of time prior to the election or even in course of the election ever complained against the conduct of the Presiding Officer.
7. Mr. Farid Ahmad has then contended with much vehe--mence that the Tribunal has failed to exercise its jurisdiction by refusing to consider the evidence on double voting and false personation and the impugned order is therefore, illegal. The following passage extracted from the order of the Tribunal will falsify the allegations contained in this contention:- "As regards double voting by certain voters and also alleged false personification we are to manner.(?) There is no evidence to prove that certain votes were either cast in favour of the petitioner or the respondent No. 1 which were otherwise irregular due to exercise of the double votes or were false personification. We are here to see whether any irregularity was committed at the instance of the respon--dent No. 1 and if any irregularity was really committed whether at materially affected the result of the election. There is nothing to show that the respondent No. 1 recorded certain false votes. There is no proof either that certain voters by exercising double franchise cast their votes in favour of the respondent No. 1. So, it will not be just and fair to offer any advantage to the petitioner for such alleged false personification or double voting. It will not be out of place to note here that the petitioner was the sitting Chairman and the voters' list was prepared under his care and supervision.'
8. It appears from the records (certified to this Court in obedience to a direction given by this Court) that the petitioner stated in his evidence before the Tribunal that six voters named by the petitioner cast their votes in the Unit in question after having cast their votes elsewhere and that they were allowed to vote in spite of protests made by the petitioner. In cross-examination the petitioner stated that he filed written objection about double voting and also deposited the objection fee of Rs. 5; but that he obtained no receipt for the objection. The petitioner also admitted that he did not have a copy of the objection petition filed by him and that he did not call for that petition. It further appears that the petitioner never produced before the Election Tribunal copies of the voters list of other Units in support of his allegation that the same voters who voted in the Unit in question were the persons enrolled as voters in other Units and had cast their votes in the other Units. It is true that the records disclose that the petitioner had called for the marked copies of the voters list of certain other Units and they had been called for by the Tribunal. But only some of them, namely, the voters list of Unit Nos. 1 and 5 of Araisida are found on record. On examination of the records with reference to Nuru Mia son of Hasan A.I Mirda (who is alleged to have voted more than once) we find there is one Nuru Mia son of Hasan A.I Mirda aged 32 years in the voters list of Talshar against serial No. 261 but there is one Nur Mia son of Hasan A.I aged 40 years against serial No. 170 in the voters list of Araisida Unit No. 1 and there is no tick mark against him to indicate that he voted in this Unit. It may be mentioned here that there are two voters' lists of Araisida Unit No. 1 on the record, one of them hav--ing no tick marks while the other contains tick marks and we have consulted the latter list to find that there is no tick mark against serial No. 170 Nur Mia son of Hasan A.I aged 40 years. Abdul Mannan who has been named in the said Election Petition is the son of Abdul Khaleque and is 45 years old and his serial number is 85 in Talsabar while there is one A.
9. Mannan son of A. Khaleque aged 52 years against serial No. 27 in the voters list of Araisida Unit No.
5. Prima facie due to difference in age and the description of the name of the vote as well as of hisfather these two Mannans do not appear to be the same person particularly when there is no evidence to connect them. In the absence of the voters' list of other Units we could not check up other names who are alleged to have voted more than once.
10. It is desirable at this stage to express our opinion about the law in regard to the production of evidence. Section 60 of the Electrol College Act provides as follows:- "60.-(1) A tribunal shall, upon receipt of an election petition, give notice thereof to all the contesting candidates at the election to which the petition relates.
(2) 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.
(3) The decision of the Tribunal on an election petition shall be final."
11. There is no provision in the said Act which empowers the Tribunal to summon a witness or to compel the production of a document as is usually found in similar legislations to wit, the National and Provincial Assemblies (Elections) Act, 1964, sections 56, 66 and 58.
12. It thus appears to us that the Act places the responsibility of producing evidence including relevant documents on the parties themselves and merely empowers the Tribunal to record such evidence.
13. Section 81 entitles a person not only to inspect documents relating to an election but also to obtain copies of them.
14. It was, therefore, entirely the responsibility of the petitioner to produce relevant evidence in support of his allegations of double voting and false personation. The petitioner has failed to adduce evidence that the said six persons were exactly the same persons who were not only recorded as voters in more than one Unit but also cast their votes more than once. The petitioner has similarly failed to prove that votes were cast by false personation. Mere production of a list of tendered votes is not enough to prove that votes were cast by false personation. Of the persons who tendered votes only on one of them namely, Kala Mia, has been examined. In cross-examination he has given his serial number as 169 while in the annexure to the petition his serial number has been given as 159. In these circumstances if the Tribunal has refused to hold that there were cases of double votings or false personation we are unable to find fault with it.
15. For the reasons stated above the Rule is discharged without any order as to costs.
16. Before we part with the case we wish to record our dis--approval of the manner in which the Election Tribunal conductedthe case. The case was filed as early as 12-12-1964 and after having been adjourned on numerous occasions was finally dis--posed of on 16-5-1966. The intention of the law is to provide for an expeditious disposal of an election case in a summary manner and the inordinate delay that has occurred in this case had the effect of defeating the intention of the Legislature.
17. A. H. KHAN, J.---I agree.