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Petitioner: MAHBUBUL HUQ VS Respondent: THE CHIEF ELECTION COMMISSIONER OF PAKISTAN
P L D 1969 Dacca 741
P L D 1969 Dacca 741
Before B. A. Siddiky and Salahuddin Ahmed, JJ
MAHBUBUL HUQ‑Petitioner
Versus
THE CHIEF ELECTION COMMISSIONER OF PAKISTAN AND OTHERS‑Respondents
Writ Petitions Nos. 101 and 106 of 1964, decided on 27th August 1964.
(a) Bias---Judge or Tribunal having pecuniary interest (however negligible) in subject‑matter of litigation‑Disqualified from adjudi cating matter irrespective of proof of bias from any quarter‑Bias alleged, however, on basis of relationship‑Party alleging relation ship to prove same to be such as to afford reasonable basis for holding likelihood of bias‑Failure of party to raise objection at proper stage‑Allegation of bias loses much of its force in such circumstance.
Where a Judge or a Member of a Tribunal has pecuniary interest however negligible in the subject‑matter of the liti gation which is pending adjudication before him, he is, disqualified from hearing the matter without any further proof of bias in him from any quarters. But where the allegation of bias is based on kinship or relationship, the party alleging relationship between the contesting party and the Judge or a Member of the Tribunal, has to prove that the nature of relationship is such as to afford a reasonable basis for holding that there is a real likelihood of bias. This, however, does not mean that the Courts approve of the conduct of a Judge or a Member of a Tribunal who appears to have some interest in the case due to his relationship with any of the contesting parties before him and yet hears the matter even though the parties have consented to his doing so. Justice should not only be done but it should appear to have been done so that people may have confidence in the administration of justice.
Dimes v. Grand Junction Canal (1852) 3 H L C 759; Fromre United Breweries Company Limited and another v. Keepers of the Peace and Justices for County Borough of Bath 1926 A C 586; P. D. Shamdasani v. Central Bank of India Ltd. A I R 1938 Born. 431; Vassiliades v. Vassiliades and another A I R 1945 P C 38; Sunil Chandra Ray and another v. The State 57 C W N 962; Judicial Review of Administrative Action by S. A. D. Smith 1959 Edn.; R. V. Camborne Justices (1964) 2 A E L R 850; R. V. Barnsley County Borough Licensing Justices (1959) A E L R 635; Anwar and another v. The Crown P L D 1955 F C 185; Gurudeva Narayan Srivastava v. State of Bihar and another A I R 1955 Pat. 131; Ramnath Prasad v. The Collector of Darbhanga and others A I R 1955 Pat. 395; Venkatachalam lyer v. State of Madras A I R 1957 Mad. 623 and Manak Lal v. Dr. Prem Chand Singhvi and others A I R 1957 S ,C 425 ref.
(b) Settlement of Disputes (First Elections) Order (13 of 1962), Art. 21 read with Settlement of Disputes (First Elections) (Amend ment) Order (1 of 1963)‑Amendment of election petition allowed prior to amendment of Art. 21 and by virtue of petition as amended no new material sought to be brought on record ‑ Petition, in circumstance, held, could not be said to be non‑maintainable in terms of Art. 21 as amended by Order No. 1 of ,1963.
In re : K. Vasudevan A I R 1944 Mad. 238 ref.
(c) National and Provincial Assemblies (First Elections) Order (4 of 1962), Arts. 52 & 54 and Settlement of Disputes :(First Elections) Order (13 of 1962), Art. 27‑No evidence before Election Tribunal that expenses were incurred by candidate for publication of an item in newspaper advocating his election-- Tribunal, in circumstances, held, wholly wrong in holding candidate guilty of illegal practice under Art. 54.
(d) Settlement of Disputes (First Elections) Order (13 of 1962), Art. 27 and National and Provincial Assemblies (First Elections) Order (4 of 1962), Art. 54‑Corrupt or Illegal practice‑Party not challenging election specifically on point of ;illegal and/or corrupt practice‑Tribunal acting under Order No. 13 of 1962 not justified in taking into consideration suo motu such a point even if it comes to its notice in course of proceeding.
Article 12 of President's Order No. 13 of 1962 which deals with the contents of election petition, makes it obligatory on the part of the person who files the election petition to "set forth ‑full particulars of any corrupt or illegal practice or other illegal act alleged by the petitioner, including as full a statement as possible of the names of the persons who are alleged to have committed such practices or acts and the date and place of the commission of every such practice or act. From a reading of the ‑provisions under Chapter III of President's Order No. 13 of 1962, no provision appears to have been made for the Tribunal to declare an election void on the ground of an illegal or corrupt practice adopted by the successful candidate of which no mention ‑has been made in terms of Article 12 of the Order in the election petition. The language of Article 12 (1) (b), leaves no scope for doubt that the election petition must contain full particulars of all details of such illegal practices.
Shri Krishna v. Rajeshwar Singh and others 12 E L R 1 ref.
Petition No. 101 of 1964
Hamidul Huq Chowdhury, D. C. Bhattacherjee, A. H. Mirza and Humayun Kabir Chowdhury for Petitioner.
Maksumul Hakim, Advocate‑General, Md. Huda, Deputy Attorney‑General and Abdul Wadud Malik for Respondent No. 1.
Ahmad Sobhan, Shafiqur Rahman, Qazi Shafiuddin and Abu Taher Chowdhury for Respondent No. 3.
M. M. Hoque and Aminul Huq for Respondent No. 4.
Petition No. 106 of 1964
Ahmad Sobhan, Shafiquri Rahman, Qazi Shafiuddin and Abu Taher Chowdhury for Petitioner.
Hamidul Huq Chowdhury, D. C. Bhattacherjee, A. H. Mirza .and Humayun Kabir Chowdhury for Respondent No. 3.
M. M. Hoque and Aminul Huq for Respondent No. 4.
Dates of hearing: 14th, 15th, 18th, 19th, 20th and 21st May 1964.
JUDGMENT
SIDDIKY, J.‑This judgment will dispose of the above two petitions under Article 98 of the Constitution of the Islamic Republic of Pakistan.
Petition No. 101 of 1964 was filed by Mr. Mahbubul Huq a member of the National Assembly of Pakistan representing Constituency No. NE 67 Comilla‑cum‑Noakhali, asking for n declaration that the order of the Election Tribunal, East Pakistan, dated the 6th day of February 1964, passed in Election Petition No. 8 of 1962, declaring the election of the petitioner void, is made without any lawful authority and is no legal effect. The petitioner further prayed for a direction upon respondent No. 1 to certify and transmit to this Court the records of Election Petition No. 8 of 1962 and for staying the operation of the impugned order pending the hearing of this petition. Further it was prayed that respondent No. 1 be restrained by an order of this Court from holding the by‑election in the Constituency No. NE 67 Comilla‑cum‑Noakhali pending the hearing of this petition and for such other or further order or orders as may be deemed fit and proper by this Court as well as for costs of and incidental to this petition.
Upon the said application, the petitioner obtained a Rule nisi on the 2nd of March 1964, on his prayers Nos. (a) and (c) and another Rule nisi on his prayer No. (d) made therein.
The Court ordered that these two petitions, namely, Petition No. 101 of 1964 and Petition No. 106 of 1964, be heard together.
The short facts necessary for disposal of these two petitions are as follows:‑Under the Constitution of the Islamic Republic of Pakistan promulgated on the 1st day of March 1962, election to the National Assembly of Pakistan from different consti tuencies were held sometime in April 1962. Election to the National Assembly from Constituency 1\o. NE 67 Comilla‑cum- Noakhali was held on 28‑a‑62 and result thereof was announced on 2‑5‑62 and the petitioner in Petition No. 101 of 1964 Mr. Mahbubul Huq, who secured the highest number of votes (145 votes) was declared elected to the National Assembly of Pakistan from the aforesaid Constituency No. NE 67 Comilla -cum‑Noakhali. There were five other contestants beside Mr. Mahbubul Huq for the said seat, of whom respondent No. 3 Mr. Aminul Islam Chowdhury secured the next highest votes, viz. 130. On 9‑5‑62 result of the election was published in the official Gazette. On 17‑5‑62 return of election expenses was filed by the petitioner Mr. Mahbubul Huq with the Returning Officer. On 31‑5‑62 respondent No. 3 Mr. Aminul Islam Chowdhury filed an election petition challenging the election of petitioner Mr. Mahbubul Huq. On 25‑9‑62 respondent No. 3 filed an amendment petition in order to add one paragraph after paragraph 4 (a) of his original election petition, dated 31‑5‑62 to be numbered as paragraph 4 (a) (1). On 27‑9‑6'' the petitioner M. Mahbubul Huq objected to the amendment sought to be made by respondent No. 3 to his election petition by filing a petition to that effect. On 6‑12‑62 the Tribunal after hearing the parties allowed amendment of the election petition as prayed for in the amendment petition of respondent. No. 3, dated 25‑9‑62.
On 16‑1‑63 the election petition was taken up for hearing by the Tribunal and Mr. Ahmed Sohan, the learned Advocate for respondent No. 3 Mr. Aminul Islam Chowdhury (petitioner in the election petition) opened the case and tendered witness Mr. Md. Nuruzzaman Chowdhury on behalf of the petitioner for examination. At this stage Mr. Mirza Gulam Hafez, the learned Advocate for the petitioner Mr. Mahbubul Huq (opposite‑party No. 1 in the election petition) raised an objection to the hearing of the case by the Tribunal as constituted on the ground that one of its members, namely, Mr. N. M. Khan, was a relation of respondent No. 3 Aminul Islam Chowdhury (petitioner in the election petition. He asked for an adjournment for filing a formal application supported by an affidavit stating the grounds of objection to the hearing of the matter by the Tribunal as constituted. The Tribunal adjourned the case for a day and the peti tioner (opposite‑party No. 1 in the election petition) filed a sworn application on the same day, i.e. 16‑1‑63, stating his grounds of objection. This objection petition along with a counter affidavit filed by Mr. Aminul Islam Chowdhury (petitioner in the election petition) was taken up by the Tribunal on 17‑1‑63 and the Tribunal passed the following order on the said objection petition :‑
"Heard the learned Advocates and perused the application for referring the matter to the Election Commission filed on 16‑1‑63 and the counter‑affidavit thereto and the application for adjournment of the matter filed in Court today. It seems, Mr. N. M. Khan, one us feels embarrassed to hear this case as the petitioner happens to be distantly related to him. Keeping in view the principle that justice should not only be done but should also appear to have been done and in view of the decision of the House of Lords in the case of Dimes v. Grand Junction Canal (1852) 3 H L C 759 as referred to at page 406 of Leading Cases in Constitutional Law by O. Head Phillips, it seems desirable to avoid any situation by which there should be any room for any apprehension in the mind of any of the litigant parties. It seems, however, on the other hand, that there are certain practical difficulties at the present moment to have the case heard by a different Tribunal other than this. In view of this possible difficulty, Mr. Mirza Golam Hafez, the learned Advocate for opposite- party No. 1, has filed a fresh petition asking for two months' time so that opposite‑party No. 1 Mr. Mahbubul Huq might take necessary steps to move the Commission under Article 18 of President's Order No. 13 of 1962 as amended by President's Order No. 35 of 1962.
Mr. Ahmad Sobhan, however, contends that such a belated prayer should not be allowed at this stage except on terms. It, however, appears on a reference to the earlier petition filed on 16‑1‑63 that opposite‑party No. 1 was not definite as to the precise nature of the relationship and that be had a vague idea about the same. Although that fact is controverted from the side of the petitioner, we feel it quite reasonable to accept the averment of the opposite‑party No. 1 in this behalf inasmuch as none of the two parties brought it to our notice about this kind of relationship at any appropriate stage earlier than today. It was only yesterday that the matter was brought open at our instance. This also does not speak very well of the petitioner. Be that as it may we feel that a chance should be given to the opposite‑party No. 1 to move the Commission in terms of Article 18 of President's Order No. 13 of 1962, as prayed for.
Let this case come up for further orders on that 4th of March 1963, regarding the fixing o f the date of hearing, if necessary.
"There will be no orders as to costs of these applications."
Mr. Mahbubul Huq thereafter moved the Chief Election Commissioner on 14‑2‑63 asking for reconstitution of the Tribunal after leaving out Mr. N. M. Khan. The Chief Election Commissioner having not passed any order on the application of Mr. Mahbubul Huq within 4‑3‑63 which was fixed for the election petition to come up before the Tribunal for further orders, Mr. Mahbubul Huq on 4‑3‑63 moved the Tribunal for further adjournment of the hearing of the election petition and the Tribunal granted an adjournment till 19‑3‑63. On the 16th of March 1963, the Chief Election Commissioner rejected the petition of Mr. Mahbubul Huq. On 18‑9‑63 Mr. Mahbubul Huq petitioner moved the Tribunal for review of its order, dated 6‑12‑62 allowing the amendment to the election petition. The application dated 18‑9‑63 filed by Mr. Mahbubul Huq before the Election Tribunal for dismissal of the election petition and also for review of Tribunal's orders dated 6‑12‑62 was directed by the Tribunal by its order, dated 25‑9‑63 to be dealt with along with the main election petition while trying the whole case. The trial of the election petition in effect was taken up on 24‑9‑63 and after completion of recording of evidence, arguments were commenced from 12‑11‑63 and continued till 22‑11‑63. On 22‑11‑63 the case was adjourned with inconclusive arguments on account of the promulgation of Ordinance IX of 1963 which was published in the Pakistan Gazette on 24‑10‑63 and in the Dacca Gazette on 16‑11‑63. On 16‑12‑63 Mr. Justice Idris took over as Chairman of the Tribunal in place of Mr. Justice M. Asir. On 21‑1‑64 the newly constituted Tribunal with Mr. Justice Idris as its Chairman heard arguments only and on 6‑2‑64 the Tribunal gave its decision in the matter declaring the entire election of the Constituency No. NE 67 Comilla‑ cum‑Noakhali held on the 28th of April 1962 to be void.
The election of the petitioner was declared void by the Tribunal on the grounds that the petitioner Mr. Mahbubul Huq was guilty of corrupt practice under Article 52 of President's Order No. 4 of 1962 in respect of publication in "Pallibarta" of the 17th April 1962 and also on the ground that the petitioner showed some items of his personal expenses covered by vouchers Nos. 30, 31 and 32 as his election expenses in the return filed by him and as such the statement of his personal expenses as well as the election return were not true as required under Article 54 of President's Order No. 4 of 1962.
The majority members of the Tribunal, namely, the Chairman and Mr. N. M. Khan found the other allegations; brought against the petitioner by respondent No. 3 to be unfounded and not proved. But Mr. Abdul Aziz, the third member of the Tribunal, found that the allegation against the petitioner that he held a meeting in the house of one Bagha Babu at Feni to have been established. He wrote a separate judgment and while agreeing with the majority opinion on the two items of illegal practices found proved against the petitioner also found him guilty on account of holding a meeting of Hindu voters in the house of Bagha Babu.
Mr. Hamidul Huq Chowdhury, the learned Advocate for the petitioner has assailed the decision of the Tribunal on the following grounds: ‑
(1) That the decision of the Tribunal of which one of the members was a relation of respondent No. 3 Mr. Aminul Islam Chowdhury (petitioner in the election petition) is not valid in law and therefore the Tribunal acted without juris diction.
(2) That in view of Presidents's Order No. 13 of 1962 (Settlement of Disputes (First Elections) Order, 1962 read with ('resident's Order No. 1 of 1963 (Settlement of Disputes (First Elections) (Amendment) Order, 196'1), the election petition was not maintainable.
(3) That the proceedings before the Tribunal was vitiated due to part of it being continued during the prohibitive period, i.e. 11th of November 1963, to 22nd of November 1963, vide Ordinance No. IX of 1963, dated 24‑10‑63.
(4) That no case was made out against the petitioner under Article 52 of President's Order No. 4 of 1962 (The National and Provincial Assemblies (First Election) Order, 1962).
(5) That Article 54 of President's Order No. 4 of 1962 has no application to a case where there has been no payment made, where there is no disputed claim and where no payment has to be made. In the present case none of the three conditions laid down in Article 54 of President's Order No. 4 of 1962 is applicable ; and
(6) That the law requires a particular manner of bringing an allegation against a particular person and to obtain a verdict on this allegation and where no such allegation has been made the Tribunal could not allow the petition on mere argument on certain matters not duly brought before the Tribunal for consideration.
In elaborating his first point, Mr. Hamidul Huq Chowdhury has contended that bias in a Judge, of any kind, totally vitiates the proceedings before it and deprives the Tribunal of its jurisdiction to hear the matter. According to Mr. Chowdhury, the question of bias, in the present case, in spite of the fact that his client has not uptill now been able to say with any amount of certainty about the nature of relationship of Mr. N. M. Khan, one of the members of the Tribunal, with the respondent No. 3 Mr. Aminul Islam Chowdhury (the petitioner in the election petition) gains importance for the reasons that no illegal or corrupt practice or any other incurable defect has been established in the election of his client. He submitted that had it been a case of established illegality or corrupt practice or of any other incurable defect then the point of bias might not have been asserted with that amount of force with which he is arguing it now. This he submitted keeping in view his points Nos. 4 and 5. Mr. Chowdhury in support of his contention on this point of bias has relied on the cases of Dimes v. Grand' Junction Canal ((1852) 3 H L C 759), `Leading Cases in Constitutional Law' by O. Hood Phillips, 2nd Edition, at page 409 ; Fromre United Breweries Company Limited and another v. Keepers of the Peace and Justices for County Borough of Bath (1926 A C 586), P. D. Shamdasani v. Central Bank of India Ltd. (A I R 1938 Bom. 431), Vassiliades v. Vassiliades and' another (A I R 1945 P C 38) and Sunil Chandra Ray and another v. The State (57 C W N 962) and a passage under the heading Family Relationship from Judicial Review of Administrative Action by S. A. D. Smith, 1959 Edition.
In the case of Dimes v. Grand Junction Canal which is the leading case on the subject, it was held by the House of Lords that a Judge having an interest in the proceeding pending before him is disqualified from hearing that matter. In the case of Fromre United Breweries Company Limited and another v. Keepers of the Peace and Justices for County Borough of Bath a similar view has been taken by Lord Chancellor Viscount Cave. In the case of P. D. Shamdasani v. Central Bank of India Ltd. Beaumont, C. J. took the view that persons who are exercising judicial function must be in an entirely impartial position and they ought not to have any interest, pecuniary or otherwise, in the subject‑matter of the litigation: and they must not be in such a position that any bias in favour of one side or other can be imputed to them. Further, the learned Chief Justices observed that actual bias need not be proved if the relationship is such that the bias may seem likely.. The learned Chief Justice relied on the case reported in 1926 A C 586 for the view that he took. Mr. Hamidul Huq Chowdhury laid emphasis on the observations made by Chief Justice Beaumont where he says that actual bias need not be proved if the relationship is such that the bias may seem likely. A similar line of thought has been expressed by Lord Wright in delivering the opinion of the Board in the case of Vassiliades v. Vassiliades and another. In the case of Sunil Chandra Ray and another v. The State a Division Bench of the Calcutta High Court presided over by Chakravartti, C. J.. although did not set aside the judgment of a Single Judge on the question of bias, observed, "that, if a Judge's relationship with one of the parties to a case has been such that he feels certain embarrassment in trying it unless the other party consents to his doing so, it is better that he does not try the case than he relieves himself of the embarrassment by asking for and obtaining consent." The passage in Judicial Review of Administrative Action by Smith at page 153, relied on by Mr. Chowdhury, of family relationship runs to the following effect :‑
(c) Family relationship.‑Kinship has always been recognised as a ground for challenging a juror; and in 1572 a Court went so far as to uphold an objection to proceedings in which the Sheriff who had summoned the jury was related in the ninth degree to one of the parties. Despite a seventeenth century decision that kinship did not operate as a disqualification for a Judge, it is now well established that it does disqualify wherever it is close enough to cause a real likelihood of Bias. Family relationship between Judge and counsel does not appear to be exceptionable, but it has been suggested that Judges are disqualified from sitting in cases where near relatives are witnesses. There is no reason for differentiating between the Courts and Administrative Tribunals in these matters."
On the other hand, the learned Advocate‑General appearing for respondent No. 1, the Chief Election Commissioner of Pakistan, relying on the cases of R. v. Canborne Justices ((1964) 2 A E L R 850), R. v. Barnsley County Borough Licensing Justices ((1959) 2 A E L R 635), Anwar and another v. The Crown (P L D 1955 F C 185), Gurudeva Narayan Srivastava v. State of Bihar and another (A I R 1955 Pat. 131), Ramnath Prasad v. The Collector of Darbhanga and others (A I R 1955 Pat. 345) Venkatachalam Iyer v. State of Madras (A I R 1957 Mad. 623) and Manak Lal v. Dr. Prem Chand Singhvi and others (AIR 1957 S C 425) submitted that where there is no allegation of pecuniary bias on the part of a Judge or a Member of a Tribunal and where the party alleging bias in the 'Judge or the Member of the Tribunal does not take proper steps at the appropriate time, i.e. during the pendency of the proceeding before the said Judge or the Tribunal and allows a judgment to be entered, he is not entitled to raise the question of bias at a later stage.
The learned Advocate‑General contended that in the present case nowhere the petitioner has shown the actual relationship existing between respondent No. 3 Mr. Aminul Islam Chowdhury and Mr. N. M. Khan, one of the Members of the Tribunal nor the petitioner moved the High Court against the order of the Chief Election Commissioner, dated 16‑3‑63 rejecting his petition for reconstitution of the Tribunal. It, therefore, does not lie in the month of the petitioner now at this stage to raise the question of bias.
Upon a consideration of the arguments of Mr. Hamidul Huq Chowdhury and the learned Advocate‑General and the cases cited by them (referred to above) on the point, we have come to the conclusion that where a Judge or a Member of a Tribunal has pecuniary interest however negligible in the subject- matter of the litigation which is pending adjudication before him, he is, in our opinion, disqualified from hearing the matter without any further proof of bias in him from any quarters. But where the allegation of bias is based on kinship or relationship, it seems to us that the party alleging relationship between the contesting party and the Judge or a Member of the Tribunal has to prove that the nature of relationship is such as to afford for reasonable basis for holding that there is a real likelihood of bias. By this, we do not mean to say that we approve of the conduct of a Judge or a Member of a Tribunal who appears to nave some interest in the case due to his relationship with any of the contesting parties before him and yet hears the matter even though the parties have consented to his doing so. Justice should not only be done but it should appear to have been done so that people may have confidence in the administration of justice.
In the present case, one…
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