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Petitioner: SHAHIDULLAH KAZI VS Respondent: THE ADDITIONAL DEPUTY COMMISSIONER (DEVELOPMENT) AND ELECTION TRIBUNAL, DISTRICT` FARIDPUR
1969 P L D Dacca 868
1969 P L D Dacca 868
Bore Salahuddin Ahmed, Abu Md. Abdulla and A. H. Khan, JJ
Petition No. 281 of 1965
SHAHIDULLAH KAZI‑Petitioner
Versus
(1) THE ADDITIONAL DEPUTY COMMISSIONER (DEVELOPMENT) AND ELECTION TRIBUNAL, DISTRICT` FARIDPUR,
(2) ABDUL HALIM‑SIKDAR,
(3) THE CHAIRMAN, PROVINCIAL ELECTION AUTHORITY, EAST PAKISTAN AND
(4) THE RETURNING OFFICER CIRCLE OFFICER (DEVELOPMENT), DISTRICT FARIDPUR‑‑ Respondents
Petition No. 377 of 1965
MD. LUTFAR RAHMAN‑Petitioner
Versus
(1) THE ELECTION TRIBUNAL AND ADDITIONAL COMMISSIONER, RAJSHAHI DIVISION,
(2) DR. RASHID AHMED,
(3) ABU BAKKER RABBANI AND
(4) THE PROVINCIAL ELECTION AUTHORITY--Respondents.
AND
Petition No. 578 of 1955
ABDUL HALIK SIKDAR‑Petitioner
Versus
(1) THE 'ELECTION TRIBUNAL AND ADDITIONAL DEPUTY COMMISSIONER, DEVELOPMENT, FARIDPUR AND
(2) SHAHIDULLAH KAZI‑Respondents
Petitions Nos. 281, 377 and 578 of 1965, decided on 14th July 1967.
(a) Electoral College Act (IV of 1964), Ss. 21 & 53 read with Constitution of Pakistan (1962), Art. 158 and Electoral College Rules, 1964, r. 36(1‑A)‑Election petition‑Election Tribunal‑Jurisdiction‑Requirement of Art. 15s, Constitution of Pakistan (1962), regarding qualifications of electors‑Must be read into Electoral College. Act, 1964‑Failure to comply with such provision attracts operation of r. 36(1‑A), Electoral College Rules, 1961‑Election Tribunal competent to consider and decide whether returned candidate was qualified to be elected as Elector (objection being as to his age)‑[Per Salahuddin Ahmed and A. H. Khan, JJ., Abu Md. Abdulla, J. contra].
Per Salahuddin Ahmed, J.‑‑
The language of Article 158 of the Constitution, 1962, unmistakably shows that its provisions are inviolable, and it is necessary to bear this aspect in mind. It follows that the re4uirement of Article 158 of the Constitu tion, namely the qualification of the Elector must be read into the Electoral College Act even though the Act itself seems to be silent on the point and does not specify .such qualification. Section 21 of the Act supports this vi‑.w when it says that any person may propose or second the name of any person who is duly qualified to be elected as such person. The result, therefore, is that the provisions of Article 158 of the Constitution must be deemed to be part of the Act itself, and consequently any failure to comply with such provisions :or their contravention attracts the operation of rule 36(1‑A), and thus authorises the Tribunal to consider and decide an election dispute on the ground that the returned candidate never possessed the qualification of the elector so as to enable him to contest the election. The omission to mention in the Act the grounds for challenging an election, and clothing the Tribunal With such wide powers as it shall "make such orders as it may think fit," and the not too limited grounds 'of Tribunal's decision as prescribed in rule 36(1‑A), all point to the extensive jurisdiction of the Tribunal so‑as to authorise it to consider the question whether the returned candidate was qualified to lie elected as the elector.
Khurshed Ali v. S. M. Hussain, Additional Deputy Commissioner (General), Sylhet 17 D L R 355; Gazi Neasaruddin v. A. R. Khan, Election Tribunal and Additional Deputy Commissioner(D), Khulna and others P L D 1966 Dacca 617; Ahsan Ali Mandal v. Z. A. Choudhury, Election Tribunal, Additional Deputy Commissioner, Jessore and others P L D 1965 Dacca 41; Muhammad Tufail v: Muhammad Salim P L D 1967 Kar. 104, Khanfraz v. Mahmud Iqbal, Election Tribunal, Peshawar Division P L D 1967 Pesh. 41 ;. Abdur Rashid v. Khawaja Mahmood Sadiq. Additional Commissioner (Revenue) and Election Tribunal, Sargodha Division P L D 1966 Lah. 216 ; Ahmed v. Mir Muhammad Khan P L D 1966 Lah: 927 and Allah Ditta v. Muhammad Munir P . L D 1966 Lah. 770 rel.
Ahsan Ali Mandal v. Z. A. Chowdhury, Election Tribunal, Additional Deputy Commissioner 17 D L R 424 ; Manzoor Aleem Qureshi v. Zahur Hussain and another P L D 1965 Lab. 262 ; Ghula n Abbas v. The Additional Commissioner and Election Tribunal, ‑Khairpur Mirs and 3 others P L D 1965 Kar. 625 ; Ghulam Rasool v. Deputy Commissioner and Election Tribunal, Nawabshah and another P L D 1966 Kar. 151 and Ghulam Qadir v. Ahmad Shah and another P L D 1967 Lab. 68 not fol.
Mst. Hamida Bano v. Ashiq Hussain P L D 1963 S C 109 and Quinm v. Leathern 190 I L R A C 496 ref.
Per A. H. Khan, J.‑
On a careful perusal of the Electoral College Act and Rules made thereunder it appears to be clear that a person who is enrolled as above 21 years of age but below 25 years cannot get the opportunity of making any objection as to the entry in the draft electoral roll regarding his age. This is clear from the provi sions of rule 12 or 13 of the Act, which provides for making claims for inclusion and raising objections for the inclusion of a person enrolled as a voter, and not regarding age.
It is true that in sub‑rule (2) of rule 22 there is a provision for correction of an existing eatry in the electoral roll for the time being in force. But no correction as regards age is autho rised by the Act itself as there is no such provision in sub section (5) of section 8, or elsewhere in the Act. It is also to be noticed that there is no provision of any appeal or revision from any order for correction under subsection (2) or rule 22. It may be further mentioned that under certain circumstances an aggrieved party may not get an opportunity for correction of an error in respect of an entry regarding a voter in the electoral roll brought on the roll under suction 13‑A of the Act. Under the proviso (iii) to section 23(3) of the Act, the Returning Officer is debarred from enquiring into the correctness or validity of an entry in the electoral roll. If this also includes an enquiry as to the age of the candidate then the appellate officer would also` be debarred from looking into the question of age. In the circumstances, the only remedy of an aggrieved party should be with, the Election Tribunal, otherwise he is left with no remedy at all.
There is no provision anywhere as to the particulars to be given in an election petition, and the specific grounds on which an election may be set aside, or when the Tribunal may declare another candidate elected on the election of the returned candidate being declared void, and when an election as a whole may be set aside. The Returning Officer while performing his function of scrutiny under section 23 of the Act may seek light from the provisions of section 12(2) of the National and Provin cial Assemblies (Elections) Act, 1964, for the qualification of candidate, and the Tribunal may also look for enlightenment into the provisions of sections 71 and 72 of the Assemblies Act in deciding an election dispute, although such provisions are not binding on him.
Per Abdulla, J. (contra).‑
The contention that there cannot be any guarantee that the age recorded by Registering Authority is correct is open to five objections. First it would lead to a presumption that enume ration and registration is done haphazardly and would be contrary to the presumption of correctness of official records as laid down in section 114 of the Evidence Act. Secondly, it will lead to a conclusion that the voters are prone to give different ages for different purposes which I am not prepared to hold. Thirdly, it must be observed that the Electoral Rolls are not disconnected with the other acts leading to the election to the Provincial Assemblies, the National Assembly and to the Election of the President.
Fourthly, it will be seen that an election petition under the Electoral College Act can be filed to challenge the election only.
The word "held" as occurring in the definition of "election" given under the Act clearly signifies the holding of an election, that is, all the procedure laid down in Chapter V of the Act. In an election petition under section 58 only those questions can be agitated which ‑ relate to the election itself that is all the procedure mentioned in Chapter V. Election can have no reference to the qualification of a candidate.
Rule 36 states that on receipt of an election petition the Tribunal shall give notice of it and after holding a summary enquiry record its finding. If the Tribunal is confined to holding a summary enquiry, then the disputed question of fact regard ing the qualification of a candidate cannot be properly adjudi cated.
The National and Provincial Assemblies Elections Act must therefore, be deemed to incorporate in it the provisions of the Electoral College Act, so far as the preparation of the Electoral Rolls are concerned. Therefore, the provisions of these two Acts must be read together to ascertain the legisla tive intention. The elections to the representative institutions prescribed by the Constitution have all the same foundation, namely, the Electoral Roll. Therefore, it is permissible to interpret the provisions of the two Acts to arrive at a true construction of the legislative intent.
Fifthly, the Electoral rolls prepared under Chapter IV of the Electoral College Act attained a finality which cannot be undone except by express provisions of law.
Section 8(2) read with rules 10 and 11 and Form V are sufficient for the purpose of lodging any objection as to age which a person may have against the entry as to age of a voter.
Held, that the Election Tribunal constituted under Article 59 of the Electoral College Act, 1964, is not competent to question the entries in an Electoral Roll in an election petition filed before him.
(b) Electoral College Act (IV of 1964), Ss. 21 & 23(3), proviso (iii)‑Proviso (iiii) prohibiting Inquiry into correctness, of entries In electoral roll‑Applies to Returning Officer only‑Such disability cannot extend to Election Tribunal.
(c) Evidence Act (I of 1872), S. 114, illus. (e) Presumption as to regular performance of official acts‑Rebuttable‑Not available in favour of correctness of entries In electoral roll [Per Salahuddin Ahmed and A. H. Khan, JJ. Abu Md. Abdulla, J. contra].
(d) Electoral College Act (IV of 1964), S. S--3 Word "disqualification" has a different concept from expression "absence or want of qualification"‑Candidate below requisite age‑Case of "absence of qualification" and not of "disqualification".
(e) Electoral College Act (IV of 1964), Ss. 21, 38 & Chap. V‑Election dispute‑Dispute as to requisite age of candidate‑An election dispute.
Section 21 of the Act dealing with the nomination of a person duty qualified falls under Chapter V which deals with conduct of election, and, therefore, a dispute as to the requisite age of a candidate is an election dispute under section 58 of the Act
(f) Constitution of Pakistan (1962), Art. 98‑Writ‑-not a normal remedy‑Cannot, in context of statute omitting to provide remedy be considered as remedy‑[Per Salahuddin Ahmed and A. H. Khan, JJ., Abu Md. Abdulla, J., contra].
(g) Electoral College Rules, 1964, r. 36(1‑A)‑Election Tribunal‑Discretion‑Election Tribunal declaring election void but not declaring elected the only candidate left Infield nor assigning reasons for such preference‑No guidance in regard given under Electoral College Act, 1964, or Electoral College Rul3s, 1964‑Omission to give such reasons, held, would not make Tribunal's order without lawful authority‑[Per Salahuddin Ahmed and A. H. Khan, JJ., Abu Md. Abdulla, J., contra ]
Petition No. 281 of 1965
M. M. Gholam Hafez and S. A. Latif for Petitioner.
Khondker Mahbubuddin Ahmed for Respondent No. 2.
T. H. Khan, Advocate‑General‑in‑Charge and Anwarul Haque Chowdhury for Respondents Nos. 3 and 4.
Petition No. 377 of 1965
M. M. Gholam Hafez and M. M. Haque for Petitioner.
T. H. Khan, Advocate‑General‑in‑Charge and Anwarul Haque Chowdhury for Respondents Nos. 1 and 4.
Dr. F. K. M. A. Munim and Md. M. R. Khan for Respon dent No. 2.
Petition No. 578 of 1965
Khondker Mahbubuddin Ahmed for Petitioner.
T. H. Khan, Advocate‑General‑in‑Charge and Anwarul Haque Chowdhury for Respondent No. 1.
M. M. Gholam Hafez and S. A. Latif for Respondent No. 2.
Dates of hearing : 29th, 30th June, 3rd, 4th and 5th July 1967.
JUDGMENT
SALAHUDDIN AHMED, J.‑This reference arises out of a difference of opinion between two different Division Benches of this Court in the two cases of Ahsan Ali Mandal v. Z. A. Choudhury, Election Tribunal, Additional Deputy Com missioner, Jessore and others (P L D 1966 Dacca 617) and Gazi Nesaruddin v. A. R. Khan, Election Tribunal and Additional Deputy Commissioner (D), Khulna and others (P L D 1966 Dacca 41) respectively.
The two questions that are referred to the Full Bench are as follows: ‑
(1) Is an Election Tribunal constituted under Article 59 of the Electoral College Act, 1964 competent to consider the question whether a candidate at the election was qualified under the Constitution to stand as a candidate ?
(2) If the answer to question No. 1 is in the negative whether any other forum can consider and decide the question ?
The facts leading to the reference of the two questions are based on three Petitions Nos. 281, 578 and 377 of 1965 which, too have been sent to this Bench for disposal. These three Petitions have been heard together as common questions of fact and law are involved in them and they are now being disposed of under one judgment.
Petitions Nos. 281 of 1965 and 587.of 1965 arise out of the same order. Petitioner in Petition No. 281 was declared elected from a particular Unit as a member of the Electoral College with a majority of eleven votes over his only rival, respondent No. 2 herein. The petitioner's election was challenged by respondent No. 2, inter alia, on the ground that he was less than twenty‑five years of age on the qualifying date, that is, on 1‑5‑64, and as such he is. as ineligible for election as the elector under Article 158 of the Constitution read with section 53 of the Electoral College Act, and his election was consequently illegal and void. Petitioner's age as recorded in the electoral roll of the particular Unit is thirty years. On a consideration of the evidence the Tribunal found that all the allegations except the one relating to age was without any substance. The Tribunal, however, on a consideration, inter alia, of the Dacca Gazette dated 6‑11‑56 (Exh. 1/1) found that the age of the petitioner on the qualifying date was much below twenty‑five years, and he was, therefore, debarred from being elected as a member of the Electoral College and accordingly it declared the petitioner's election illegal and void ab. initio, and ordered a bye‑election in the Unit concerned. While deciding the case the Tribunal expressed the view that it was free to go into the question of age afresh as this was a question of violation of the constitutional provision fixing a definite age limit for the eligibility of a candidate for election as a member of the Electoral College and that the rule of finality contemp lated under section 23 (ill) of the Electoral College Act applied to the Returning Officer for the purpose of scrutiny and not to the Tribunal.
Petitioner in Petition No. 578 is respondent No. 2 in Petition No. 281, and he has challenged the validity of the said order of the Tribunal ordering a fresh election instead of declaring the former as elected, on the ground that he was the only other candidate left in the field after the election of the petitioner in Petition No. 281 had been set aside.
In Petition No. 377 of 1965 the petitioner and respondents Nos. 2 and 3 having contested the election, the petitioner was declared elected as a member of the Electoral College having secured the highest number of votes. Respondent No. 2 who had secured the next highest number of votes disputed the petitioner's election before the Tribunal on the ground that the petitioner was below the requisite age of twenty‑five years on the qualifying date and as such his election was illegal. Respondent No. 2 also claimed that he having secured the highest number of votes should be declared elected The Tribunal on a consideration, inter alia, of the Dacca Gazette, Extraordinary, dated 31‑12‑60 wherein the result of the petitioner's Matriculation Examination and his age were recorded found that the petitioner was about twenty‑two years of age on the' 10‑11‑64, namely, the date preceding the date of election, and as such, he was not qualified to be a member of the Electoral College. The Tribunal accordingly set aside the petitioner's election and declared respon dent No. 2 as duly elected.
Our field of enquiry as suggested by question No. 1 appears to be to find out the jurisdiction and powers of an Election Tribunal constituted under the Electoral College Act, 1964 and as to whether there is any bar placed in its way to enquire into the question of the qualification of a returned candidate as to his candidature.
Chapter VIII of the Electoral College Act, 1964 hereinafter called the Act which deals with election disputes contains only three sections, namely, sections 58 to 60. Section 58 provides that no election shall be called in question except by an Election Petition under subsection (2). Subsection (2) says that any candidate may make such petition challenging the election at which be was a candidate. Section 59 provides for the appoint ment of an Election Tribunal by the Chief Election Commissioner. Section 60 deals with the trial of Election Petition and subsec tion (2) thereof provides as follows: ‑
"(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."
Subsection (3) makes the decision of the Tribunal final.
Rule 35 of the Rules framed under the Act prescribes the manner of filing an election petition and sub‑rule (5) says that an election petition shall set forth clearly the grounds on which the petition is filed and the relief sought. Sub- rule (6) mentions the reliefs available to the petitioner. Rule 36 deals with trial of election petition. Sub‑rule (t‑A) of rule 36 inserted on the 16‑12‑64 and sub‑rules (2) and (4) of rule 36 are as follows: ‑
"(l‑A) The Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of; any provision of the Act or these rules.
(2) The order of the Tribunal. shall specify the costs, if any awarded, which shall be paid out of the security deposit made by the Petitioner.
(4) At any stage of the trial if there is no respondent left the proceedings shall decided ex parte."
Two things appear evident from the provisions of the Act and the ‑Rules referred to above. Firstly no ban is put on the Election Tribunal to consider the question whether the returned candidate was legally qualified to stand as a candidate and secondly the Tribunal has been empowered to "make such orders as it may think fit" subject of course to rules 35 (6) and 36 (t‑A) (2) and (4).
It is necessary to mention at this stage that the Act itself does not prescribe the qualification of a candidate for the office of the Elector (Member, Electoral College) although section 21 of the Act speaks about the nomination of a person "duly qualified to be elected as such member ;" nor does it contain the grounds on which an election can b‑. challenged as provided for in the National and provincial Assemblies (Elections) Act, 1964 (vide sections 12 and 72 of this Act).
Article 158 of the Constitution prescribes the qualification of the elector in these terms: ‑
"158.‑(1) The persons enrolled on the electoral roll for an electoral unit shall, in accordance with law, from time to time elect from amongst themselves a person who is not less than twenty‑five years of age, who shall be known as the Elector for that unit.
(2) The Electors for all electoral units in both Provinces shall together constitute the Electoral College of Pakistan and shall be known as the members of the Electoral College.
(2‑A) Every Electoral College shall continue for five years from the date on which it is, or is deemed by law to be, constituted and shall, on the expiration of the said period, stand dissolved.
(3) Provision may be made by law for prescribing the terms and conditions subject to which, Electors shall remain members of the Electoral College.
(4) The members of the Electoral College shall, in addition to their functions under this Constitution, have such other functions as may be conferred on them by law and, in particu lar, provision may be made by law for conferring on members of the Electoral College functions in relation to matters of local Government.
(5) Where functions in relation to matters of local government have been conferred by law on the members of the Electoral College under clause (4), such members shall, notwithstanding ;the dissolution of the Electoral College under clause (2‑A), continue to perform such functions until such date as may be provided by such law."
It is, therefore, apparent that the Constitution has laid down that the elector must not only be enrolled as a voter on the electoral roll of a particular Unit as constituted in accordance with Article 157 of the Constitution but also must be a person who is not less than twenty‑five years of age. I need hardly emphasised what seems obvious from Article 158 of the Constitution itself that the author of the Constitution clearly intended that the qualification of the Elector as laid down in the Constitution must be strictly adhered to. The other relevant provisions of the Constitution are Articles 155 to 157. Article 156 provides that an electoral roll shall in accordance with law be established and maintained for each electoral unit as constituted under Article 155 of the Constitution. Article 157 of the Constitution which provides for the qualification of the voter is as follows: ‑
"157. Except as provided by law, any citizen.‑(a) who is not less than twenty‑one years of age ;
(b) who is not of unsound mind'; and
(c) who is a resident of, or who is deemed by law to be a resident of, an electoral unit,
shall be entitled to be enrolled on the electoral roll for that electoral unit." The underlining* is mine.
The language of Article 158 unmistakably shows that its provisions are inviolable, it is necessary to bear this aspect in mind. From the foregoing it follows that the requirement of Article 158 of the Constitution, namely, the qualification of the Elector must be read into the Electoral College Act even though the Act itself seems to be silent on the point and does not specify such qualification. Section 21 of the Act supports this view when it says that any person may propose or second the name of any person who is duly qualified to be elected as such person. This position has not been disputed before us. The result, therefore, is that the provisions of Article 158 of the Constitution must be deemed to be part of the Act itself, and consequently any failure to comply with such provisions or their contravention attracts the operation of rule 36 (i‑A), and thus authorises the Tribunal to consider and decide an election dispute on the ground that the returned candidate never possessed the qualification of the Elector so as to enable him to contest the election. The omission to mention in the Act the grounds for challenging, an election, and clothing the Tribunal with such vide powers as it shall "make such orders as it may think fit" and the not too limited grounds of Tribunal's decision as prescribed in rule 36 (1‑A), all point to the extensive jurisdiction of the Tribunal so as to authorise it to consider the question whether the returned candidate was qualified to be elected as the Elector. This view has been contended for by Mr. Mahbubuddin Ahmed, learned Advocate appearing for respondent in Petition No. 281, and Mr. Munim, learned Advocate appearing for respondent in Petition No. 377 and finds support from the following decisions of the High Courts of East and West Pakistan.
The earliest case of this High Court is that of Khurshed Ali v. S. M. Hussain, Additional Deputy Commissioner (General), Sylhet (17 D L R 355). In this case the election of the returned candidate had been set aside by the Election Tribunal on the ground that he was not a citizen of Pakistan. It was contended that the Tribunal was not competent to decide whether the candidate was a citizen of Pakistan or not. The High Court held : "Being a citizen of Pakistan is one of the essential qualifications of a voter on the Electoral Roll as well as a member of the Electoral College of Pakistan both under the Constitution and the Electoral College Act, and therefore if the elected candidate's citizenship is…
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