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Petitioner: Sardar GUL E KHANDAN VS Respondent: Mian GHULAM RASOOL And 3 OTHER
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Sardar Muhammad Ashraf Khan, Qazi Abdul Ghafoor Title: Sardar GUL E KHANDAN vs Mian GHULAM RASOOL And 3 OTHER Case No.: Election Appeal No. 28 of 1985 Date of Judgment:1985-11-09 Reported As: 1986 CLC 2285 Result: Case remanded
Judgment ORDER SARDAR MUHAMMAD ASHRAF KHAN, J.--This appeal is directed against the judgment of the Election Tribunal, passed on 10-11-1985 whereby it accepting the election petition filed by the respondent No. 1, held the election of the appellant, as a Member to the Azad Jammu and Kashmir Legislative Assembly, to be void and declared the said respondent to have been duly elected in place of the appellant. 2. The brief facts giving rise to the filing of this appeal are that Sardar Gul-e-Khandan, appellant and Mian Ghulam Rasul, respondent No I (hereinafter referred to as respondent) contested the election to the Azad Jummu and Kashmir Legislative Assembly (hereinafter referred to Legislative Assembly) from the constituency LA-23 Muzaffarabad-I, held on 15- 5-1985. The appellant was declared returned from the said constituency by the responaent No. 3 on 18-5-1985 on the basis of the consolidation of the results on account of his having secured 11479 votes as against 11481 votes by the respondent. 3. Feeling aggrieved by the above election of the appellant as a Member of the Legislative Assembly, the respondent filed an election petition against the same under section 49 of the Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 (hereinafter referred to as Ordinance) as amended from time to time before the Election Commissioner wherein the prayer was made to declare the said election of the appellant to be void and the respondent to have been duly elected as Member of the said Assembly. The above election petition was made over for hearing and disposal to the Election Tribunal appointed for the purpose. The respondent had challenged the validity of the election of the appellant on the grounds mentioned in clauses (a) to (g) of para. 2 of his aforesaid election petition which read as under:-
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"(a) That according to results announced on 15th May, 1985, the petitioner had polled 11465 valid votes. Under law, the petitioner's valid votes could not be rejected at the time of consolidation. But the record is apparently clear that the valid votes cast in favour of the petitioner have been rejected. The valid votes of the petitioner on 15th were 11465 and the valid postal ballots cast in favour of petitioner according to respondent's record are 82. Thus, the total votes of the petitioner should have been 11457. But the consolidation record shows that by rejecting the valid votes of the petitioner the number of votes has been reduced to 11379 + 82 = 11461. Even otherwise, it is proved from record that valid and accepted votes of the petitioner have been rejected, which is illegal. (b) That non-petitioner No. 1 with mala fide intention recounted the total votes cast at the election. The Returning Officer had no power to recount the votes. He could recount the votes of any polling station at the consolidation stage provided application by any contesting candidate had been made or the Chief Election Commissioner had directed him to do so. None of the situations was available in the instant case. (c) That 26 postal ballots have wrongly been rejected and excluded from the count. There is ample proof that these ballots were sent through post. Documents B/1 and B/2 are annexed. These 26 postal ballots could not even be rejected on the ground that the envelops containing those votes did not bear the seal of the Post Office. The postal ballots under law can only be rejected if the declaration by the voter is not attested or the postal cover reaches the Returning Officer after the poll. Except this mandatory provision all other instructions were directory. The votes could not be rejected on this ground. The action of the non-petitioner No. 1 is mala fide and illegal. (d) That 14 votes of the petitioner sent through post have been, rejected on the ground that they do not bear the specific mark These 14 votes bear the form of tick mark ( ,/) and not cross mark (x). The intention of the voter is very clear that these voters have polled their votes, for the petitioner. Even in this case these 14 votes could not be rejected on this ground (e) That 8 postal ballots cast in favour of petitioner have been rejected on the ground that the declaration forms bear any date of April, 1985 whereas the ballots bear the date of 10th of May, 1985. The factual position in this regard, as per record, is that declaration forms were given in the last week of April but as the postal ballots were not available at that time they were provided on 10th of May. Evidence from record shall be submitted later on. Even otherwise, under law, this is not a mandatory provision and these 8 votes could not be rejected on this ground. The action of respondents Nos. 1 and 2 in this respect is illegal and against the relevant election laws anei rules. (f) That the official list prepared at the time of consolidation is incorrect as per facts and record. The Honourable Tribunal will find that the packages contain more votes cast in favour of the petitioner as against those shown in official list. (g) That rigging and illegal acts have prevailed in the election to the extent that about more than 100 votes of the dead and absent persons have been polled. List of the presons is marked as C/1 to C/5." 4. The election petition was contested by the appellant who int his written statement did not admit any of the above grounds on which the legality of the election of the appellant was challenged to be correct and defended all the actions of the respondent No. 3 alleged to be illegal by the appellant as lawful having been taken in accordance with the election law and rules. The learned Election Tribunal framed the following issues on 4-9-1985: (1) Whether the action taken by respondent No. 1 at the stage of consolidating the result is illegal? O.P.P. (2) Whether respondent No. 3 got his success through rigging, undue influence and malpractice? O . P . P . (3) If issue No. 1 is in the affirmative, whether the result of the election has been materially affected? O.P.P.
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(4) Relief. 5. The learned Election Tribunal after only hearing the arguments of the learned counsel for the parties on issue No. 1, decided the election petition, vide its judgment, dated 10-11-1985 whereby it accepted the same and declared the respondent to have been elected as Member of the Legislative Assembly in place of the appellant on the grounds that the respondent No. 3 was not competent to recount the votes and that according to the result of counts furnished by the Presiding Officer, and which held the field, the respondent had secured highest number of votes in the election. Being dissatisfied with the above decision of the Election Tribunal, the appellant has filed the present appeal under section 63(3) of the Ordinance. 6. We have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the appellant has contended that the learned Election Tribunal has erred in holding that the respondent No. 3 lacked the authority to recount the ballet papers found valid by the Presiding Officers as neither any request in writing to do so was made to him by a contesting candidate or his election agent nor any such direction was given to him by the Chief Election Commissioner. In this connection, it is contended by the learned counsel for the appellant that the Chief Election Commissioner had given direction to the respondent No. 3 to recount the said ballot-papers while the respondent had also made similar request to him and that it was in pursuance of the said direction and request of the respondent that respondent No. 3 had recounted the valid ballot-papers in respect of only four polling stations in presence of the respondent and thus the act of recounting of the ballot-papers by the respondent No. 3 was perfectly lawful. It is also contended by the learned counsel for the appellant that the learned Election Tribunal has wrongly declared the respondent to have been elected to the membership of the Legislative Assembly on the basis of some unofficial results allegedly announced by the information media on 15-5-1985 because the said results could not be made the ground of such declaration and the announcement of the same had no legal sanction behind it and it was only the respondent No. 3 who was competent to declare the result of an election under section 38 of the Ordinance which in the present case was done on 18-5-1986 by declaring the appellant as returned from the said constituency on account of having received the highest number of votes. It is further contended by the learned counsel for the appellant that assuming for the sake of arguments, that the respondent No. 3 was not empowered to recount the valid ballot-papers and that the count of the same received by him from the Presiding Officers 'remains in the field' as held by the Election Tribunal even then the appellant had won the election as according to the statements of count furnished by the Presiding Officers he had obtained more votes than the respondent. He has also contended that some of the postal ballot-papers were rightly rejected by the respondent No. 3 because either they did not bear the prescribed mark or the covers containing them did not bear the stamp of the post office or the declaration forms attached with them were found signed and attested on the dates prior to that on which the postal ballot-papers and the declaration forms were issued by the respondent No. 3 to the electors. His further contention is that the learned Election Tribunal has not specifically held that 14 postal ballot- papers cast in favour of the respondent were valid but wrongly rejected by the respondent No. 3 and that if it is assumed to have been held so even then such a finding is unlawful as under clause 8 of sub-rule 10 of Rule 25 of the Azad Jammu and Kashmir Legislative Assembly (Election) Rules, 1970 (hereinafter referred to as Election Rules) they were liable to be rejected and excluded from count by reason of not bearing cross-mark as required under Rule 12(1) of the said Rules. 7. On the other hand, the learned counsel for the respondent has contended that the impugned judgment of the Election Tribunal is perfectly lawful and legal as the respondent No. 3 had recounted the valid ballot-papers without any direction to that effect by the Election Commissioner or any such written request by a contesting candidate or his agent to him and that in absence of
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any such direction or request, he was not competent to recount the valid ballot-papers and was bound to consolidate the result on the basis of the statements of the count furnished by the Presiding Officers to him and that the respondent had secured the highest number of votes according to the announcement of unofficial result by information media on 15-5-1985. It is further contended by him that the postal ballot-papers rejected by the respondent No. 3 were quite validly cast in favour of respondent and ought to have been added to his count and by not doing so, the respondent No. 3 has committed an error and illegality. It is also contended by the learned counsel for the respondent that even if it is conceded that the appellant had obtained more votes than the respondent according to the statements of count prepared by the Presiding Officers, still the respondent had won the election after adding 82 votes found to have been cast in his favour by post to his credit. 8. Ater taking into consideration the above arguments of the learned counsel for the parties in the light of the record of the case and the relevant law applicable to it, we have come to the conclusion that the impugned order of the learned Election Tribunals uffers from man-,, defects and infirmities and appears to have been made by it not only without applying its mind to all the factual and legal aspects of the case with a view to grasping and understanding the real questions in controversy between the parties on the determination of which the right decision of the case depended but also in disregard of rules of procedure applicable to it and by drawing presumption of fact unwarranted by and rather contrary to law. It has thus committed both the errors of law as well as procedure. 9. Under section 58 of the Ordinance, the Election petition shall be tried, as nearly as may be, in accordance with procedure for the trial of suits under the Code of Civil Procedure while section 60 of the said Ordinance confers upon the Election Tribunal all the powers of a civil Court trying a suit under the said Code and thus in view of the above provisions of law, the learned Election Tribunal was bound to try and decide the Election Petition in accordance with the provisions of the Code of Civil Procedure as were applicable to the civil suit but from the perusal of the record of the election petition, it appears that for the trial of the same the procedure prescribed for the trial of the suits has not been followed. 10. According to the provisions contained in sub-rule (1) of Rule 1 of Order XIV Code of Civil Procedure a material proposition of fact and law alleged by one party and denied by the other is required to be put in distinct issue and the Court, after reading the plaint and the written statement, is to ascretain upon what material propositions of law and facts, the parties are at variance and thereupon proceed to frame and record the issue on which the right decision of the case appears to depend. Moreover, the Court may frame issue from all or any of the material enumerated in sub-rule 3 of the said Rule namely, on allegations made on oath by the parties and in pleadings or in answers to interrogatories delivered in the suit of the contents of documents produced by the either party. Thus in view of the above provisions of Code of Civil Procedure applicable to the trial of the election petition, it was incumbent upon the Election Tribunal to have first ascertained from the pleadings of the parties, declaration made on oath by them and the contents of the documents produced by them, the material points on which the parties differed and then proceeded to frame and record the issues arising therefrom and necessary for the right decision of the case but as it would appear from the examination of the issues framed by it and reproduced in para. 2 of this judgment, it failed to frame all the necessary issues on the decision of which the resolution of the real controversy between the parties depends. The issues framed by the learned Election Tribunal do not embrace and effect all the propositions of fact and law alleged by the respondent ~n his Election petition and denied by the petitioner in the written statement in presence of which lapse it was not possible for it to give correct and right decision in the case.
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The grounds of attack set forth in clauses (a) to (g) of para. 2 of the election petition to challenge the election of the appellant to the membership of the Legislative Assembly are that according to the unofficial results of the election announced on 15th May, 1985, the appellant had obtained 11465 votes but during the process of consolidation of the results the same have been reduced to 11379 by the respondent No. 3 by unlawfully rejecting his valid votes; that respondent No. 3 had unlawfully recounted the valid ballot-papers without any power because he was empowered to do so only on the request in writing by a contesting candidate or his Election Agent for the purpose or on a direction to that effect by the Election Commissioner but none of the above conditions was fulfilled in the present case; that 26 postal ballot-papers were wrongly rejected and excluded from the count by respondent No. 3 on the ground that the envelopes containing them did not bear the stamp of the post office ignoring the fact that they were sent by post and that even otherwise the same could not be rejected on the above ground under law; that 14 postal ballot-papers cast in favour of the respondent were unlawfully rejected by respondent No. 3 on the ground that the same did not bear the prescribed mark as the elector had placed tick mark on them instead of cross-mark prescribed for the purpose; that 8 votes cast in favour of the respondent by postal ballot-papers were unlawfully rejected by respondent No. 3 on the ground that the same are, dated 10-5-1985 while the declaration forms accompanying them were signed and attested in the month of April, 1985 notwithstanding the fact that declaration forms were issued to the electors in the first week of April, while the postal ballot-papers were provided to them on 10-5-1985 and that even otherwise, the said votes could not be rejected on the above ground; that the consolidated statement of the result of the count prepared by respondent No. 3 is not correct as packets containing the valid votes contain more votes to have been cast in favour of the respondent than are shown in the said statement; and that the rigging and illegal acts prevailed during the elections as more than 100 votes of the dead and absent persons named in Annexures C/1 to C/5 to election petition were polled. 12. The appellant, as said earlier, has refuted all the above grounds of attack in his written statement and defended the impugned action of the respondent No. 3 as perfectly valid and lawful. Thus, in view of the pleadings of the parties, the learned Election Tribunal ought to have put in issue each and every allegation of the respondent made the basis of challenge to the election of the appellant to the membership of the Legislative Assembly and given decision thereon after providing the parties an opportunity of producing evidence in support and rebutthi thereof but it failed to comply with the above requirement of law. The issues were not framed on most of the real questions in controversy between the parties and even those framed do not cover all the material points of law and fact on which the parties were at variance and are ambiguous and incomprehensive not clearly indicating the matter to which they relate. In order to show that the issues framed by the learned Election Tribunal do not embrace and reflect the real, controversy between the parties arising out of their pleadings and other document attached thereto on the resolution of which a correct decision of the Election Petition rested, we, first of all proceed to examine the issue No. 1 which reads as follow:- "Whether the action taken by respondent No. 3 at the stage of consolidating the results of the elections is illegal? O.P.P. 13. From the reading of the issue reproduced above, one is unable to understand as to which action out of those alleged in the election petition to have been unlawfully done by the respondent No. 3 has been made the subject of issue in it. As seen above, the respondent has called in question in his election petition as many as six actions of the respondent No. 3 done by him in the process of consolidation of result and thus by putting in issue only one action and that too unspecified one was an exercise in futility and does not constitute law requiring the framing of distinct and separate issue on each allegation of fact and law alleged by one party and denied by the other on
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which the right decision of the case depends. The right and proper course to be followed by the learned Election Tribunal was that it should have first of all determined the precise nature of the pleas of the parties raised in their pleadings and ascertained the material points in dispute between them and then put each of them in issue and given decision thereon after allowing the production of evidence on such issue which required the evidence for their determination. But it omitted to do so and no distinct and separate issue was framed on each allegation of fact and law made by the respondent in support of his election petition but denied by the appellant. The learned election Tribunal probably seems to be harboring the notion that all the illegal acts alleged to have been committed by the respondent No. 3 while consolidating the result of election were fully embraced by the issue No. 1 and that no further issue in this respect was needed to be struck but the language used in framing the above issue does not justify its above impression. If the learned Election Tribunal by framing issue No. .l had intended to cover all the allegation of the respondent made against the respondent No.3 in his election petition then at least this issue should have been framed in the following manner:- "Whether the acts committed by respondent No.1 at the stage of consolidating the results of the elections and mentioned in clause (a) to (f) of para. 2 of the election petition are illegal? O.P.P. 14. The issue framed in the above phraseology could then be construed to be referring to all the acts of the Returning Officer alleged to have been committed by respondent No.3 unlawfully thereby rendering void the election of the appellant. 15. Similarly, issue No.2 also cannot be said to have been properly framed as it does not reflect the actual allegation made by the respondent in clause (g) of para. 2 of the election petition relating to the prevalence of malpractices during the polling in which it was specifically alleged that about more than 100 votes of the dead and absent persons enumerated in the list comprising Annexures C/1 to C/5 to the election petition, were cast during the election. But this issue was framed in general and vague terms in which undue influence having been exercised during the election, has also been put in issue although no such allegation was made in the election petition. We need not dwell further on the construction of this issue as no decision has been given on it by the learned Election Tribunal. 16. The sum total of the above discussion is that the learned Election Tribunal has failed to frame essential issue on the decision of which. The right disposal of the election petition depended arid even the issue framed by it are not clear and suffer from the infirmities of ambiguity and vagueness. 17 Most of the grounds on which the validity of the election of the appellant to a seat of Legislative Assembly was challenged consist of the allegations of fact on the proof of which the respondent could only be granted the relief prayed for by him. The onus of proving such allegations lay on the respondent and in the case of his leading no evidence in proof thereof, his election petition was liable to be dismissed. But the learned Election Tribunal without providing any opportunity of leading evidence even on the issues framed by it, proceeded to decide the election petition only after hearing arguments of the learned counsel for the parties on issue No. l on the ground of their having agreed to do so. 18. Even assuming for the sake of arguments that issue No.1 covered all the actions of the respondent No.3 alleged to be unlawfully done by him in the process of consolidation of results, the respondent was under legal obligation to prove the facts on the basis of which he alleged the said action of the respondent No.3 to be illegal. But the learned Election Tribunal did not think it necessary to enquire into the truthfulness or otherwise of the allegations made in support of the challenge to the election of the appellant and without giving any opportunity of producing evidence to the parties in proof or rebuttal of the said allegations, proceeded to decide the case. In
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the concluding paragraph of its judgment it has not given any specific reason for allowing the election petition and the same has been accepted by making only the following observation:- "As a result, the petition is accepted and the petitioner is held returned." But from the reading of the impuged judgment as a whole, it appears that the same had proceeded on the grounds that according to the result of the election declared on 15-5-1985 on the basis of the statements of the count of results furnished by the Presiding Officers the respondent had won the election on account of having obtained highest number of votes and that the result of the election declared by the'--- respondent No.3 is not lawful as he has recounted the valid ballot- papers either without any request in writing by a contesting candidate or his election agent or any such direction by the Election Commissioner with the result that the statements of count prepared by the Presiding Officers "remain in the field" and determined the result of the election. 19. We have formed the above view as to the grounds…
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