P L D 1969 Dacca 541 (PLP)

SIDDIKY, C. J.‑The petitioner in this Rule prayed for a declaration that the impugned order (Annexure 'B' to the petition) passed by the Deputy Commissioner, Noakhali in Election Appeal No. 2 of 1965 has been made without any lawful authority and is of no legal effect and also for a further declaration that the election of the Chairman of the Union Council No. 6, Charachandia held on 30‑8‑ 1966 is of no legal effect as the same was not held in accordance with law. Short facts necessary for disposal of this Rule are as follows. The election for the office of the Chairman of Union Council No. 6, Charachandia, within Police Station Sonagazi, was directed to be held on 2‑5‑1965. On that date the Circle Officer (Development), went to preside over the said meeting and all the 14 members of the Union Council attended. Names of three members were duly proposed and seconded for election to the office of the Chairman. When the name of one Ali Azam was proposed and seconded he (Ali Azam) objected to it and protested against his name being entered in the ballot papers in the column of candidates. In spite of that the Presiding Officer entered all these three names in the ballot paper and election thereafter was held by secret ballot resulting in petitioner obtaining 7 votes; respondent No. 5 obtaining 6 votes and Ali Azam obtaining 1 vote. The Presiding Officer then declared the petitioner elected as Chairman. Thereafter the respondent No. 5 filed an election case under Rule 10 of the East Pakistan Union Councils and Town and Union Committee (Election of Chairman) Rules, 1965 (hereinafter called the rules) on the allegation that the election was vitiated by the inclusion of the name of Ali Azam in the ballot paper by the Presiding Officer in spite of Ali Azam's expressing his unwillingness to be a candidate for Chairmanship. According t& respondent No. 5, the Presiding Officer could not enter the name of Ali Azam in the ballot paper without his consent to be a candidate for the election. He contended that had not Ali Azam's name been entered in the ballot paper as a candidate for the election, there would have been an equality of votes which would have necessitated a fresh election under rule 6 of the Rules. He, therefore, prayed for a direction from the Deputy Commis sioner for holding a fresh election. The Deputy Commissioner ordered for an enquiry to be made by a Magistrate into the allegations contained in the election petition of respondent No. 5, and the Magistrate, Mr. M. P. Barua, who held the enquiry, submitted his report on 25‑9‑1965. Thereafter the Deputy Commissioner in terms of Rules 11 of the Election Rules passed the impugned order contained in Annexure B' to this petition which is in the follow ing terms: ‑ "5‑2‑

66. Could not take up the case on 28‑2‑

66. In view of the latest clarification received from Govt. O. P. No. 2 could not be forced to contest in the election. The result of the election was upset because O. P. No. 2 was declared to have received one vote although he had refused nomination for election to Chairman. The prayer of the petitioner is therefore accepted and it is ordered that a fresh election be held in conformity with the rules and the latest instructions received from the Government. (Sd.) M. Rahman ." The petitioner being aggrieved by the aforesaid order passed by the Deputy Commissioner, took an appeal to the Divisional Commissioner, Chittagong Division. The appeal was heard by the Additional Commissioner Chittagong Division and he upheld the order of the Deputy Commissioner who had directed holding of fresh election. The additional Commissioner disposed of the appeal on 10‑8‑1966, and pursuant to the order of the Deputy Commissioner a fresh election was held on 25‑8‑1966. In this election meeting only 10 members were present and they unanimously elected respondent No. 5 as the Chairman of the Union Council. The petitioner then filed the present petition in this Court and obtained this Rule nisi on 5th of September 1966. He has in this petition challenged the order of the Commis sioner directing fresh election as well as the validity of the election held on 25‑8‑1966 pursuant to the said direction in which respondent No. 5 was elected as Chairman. Mr. Rab, the learned Advocate for the petitioner before us, contended that the order of the Commissioner upholding the order of the Deputy Commissioner by which the Deputy Commissioner had directed a fresh election, is bad for the following reasons: Firstly, the Deputy Commissioner has referred to certain extraneous matters in deciding the case when he said. "In view of the latest clarification received from Govt. O. P. No. 2 could not be forced to contest in the election." Elaborating this point Mr. Rab submitted that the Deputy Commissioner in dealing with the election matter under Rule 11 was acting in a quasi‑judicial character and therefore he could not take any executive direction from the Government in the disposal of an election case. He having done so, his order is bad in law. Secondly, Mr. Rab contended that there being no finding in the order of the Deputy Commissioner that the election of the petitioner held on 25‑8‑1965 was set aside, his order directing fresh election is without jurisdiction. According to Mr. Rab, there must be a clear finding by the Deputy Commissioner in an election case dealt with under rule 11 with regard to the failure of the election for whatever reason before he can direct a fresh election. He having not done so his order cannot be considered to be a legal one and within the limits of his jurisdiction as contemplated by the Rule. Next Mr. Rab contended that the short reason given by the Deputy Commissioner and also the reason given by the Additional Commissioner in coming to the finding that Ali Azam, the third candidate, having not given his consent to his election to the office of the Chairman, entering of his name in the ballot paper by the Presiding Officer was illegal and this has vitiated the election held on 25‑8‑65, cannot be sustained in law for the reasons that the election rules pertaining to the election of the Chairman do not contemplate the obtaining of consent of the candidate nor do they contemplate any withdrawal of the candidate once a name has been legally proposed and seconded for the office. With regard to the first point of Mr. Rab we have no hesita tion to say that the Deputy Commissioner who in the matter of disposal of an election petition was acting in a judicial or quasi-judicial capacity should not have under any circumstance taken any guidance from any communication made to him by way of clarification by the Government on the point. He should have acted independently according to his best judgment, knowledge, good conscience and the rules governing the matter. That the Deputy Commissioner acts at least in quasi judicial character 9 under rule 11 of the rules is also admitted by the learned Advocate‑General We do not approve of officers' acting in judicial and/or quasi judicial capacities being guided by any executive order from any quarters whatsoever. The petitioner in this rule has challenged the order of the Additional Commissioner who does not seem to have drawn inspiration from anything extreneous. Apart from that the reference made to the Govt. instruction in the order of the Deputy Commissioner cannot be said to vitally affect the case. So this point of Mr. Rab does not seem to us to be of major importance. With regard to the next point urged by Mr. Rab to toe effect that the Collector should not have ordered a new election without setting aside the election of the petitioner first, we can only observe that from the language used both by the Collector and the; Commissioner and the ultimate order made by them, it cannot be said that by implication the election of the petitioner was not set: aside. When the Collector directed a fresh election to be held it necessarily implied that he had set aside the election held on 25‑8‑1965. In spite of our so saying we would like to impress on the functionaries who are entrusted with election matters that in matters of this kind decision should he given in clear and unambiguous terms touching upon each point involved in the case without leaving anything to be guessed or conjectured. This must be so as very important rights of citizens are involved in election matters. On the face of it, the argument of Mr. Rab with regard to his third contention seems to be substantial, but if looked into a little closely it does not continue to remain so. It is true that the rules governing the election of the Chairman do not provide for obtaining of consent of the candidate, nor do they provide for the procedure for withdrawal of the candidature. But that, in our opinion, will not as suggested by Mr. Rab, mean that a person who refuses to become a candidate when his name is being proposed or has been proposed can be considered to be a candidate for the election even though his name has been duly proposed and seconded. No doubt the rules governing the election of Chairman of the Union Councils do not, as in other cases, namely, the election to the office of the President, the National Assembly, the Provincial Assembly, the Electoral College, contain any provision for giving the consent or for withdrawal of candidature, yet from the mere absence of such a provision it will be too much to say that a man can be elected to an office even when he refuses to be so elected and/or that he cannot withdraw from the contest before the poll is held. We are not thereby referring to a case of a candidate who having been proposed and seconded for an elective office, where the law does not require any consent to be given by him in writing,' remains silent. We are here dealing with a case whereupon the evidence it has been found by the two Courts below that the third candidate, namely, Ali Azam, no sooner his name was proposed and seconded, objected to his candidature and/or expressed his unwillingness to be a candidate. Therefore, even though in a case where the candidate did not express his unwillingness when proposed for an elective office, we would be reluctant to hold that express consent is essential; we cannot do so in the present case as we not only find a lot of difference between the two but also that the candidate refused to contest, which amounts to his withdrawal from it. In the absence of any particular mode of withdrawal provided for by the rules, the refusal of the candidate to contest, in the facts and circumstances of the case, amounted to a valid withdrawal. In the present case Ali Azam, the third candidate as has been found on evidence by the two Courts below, did not only object to his name being proposed and protested against his own candidature, but also wanted to file a petition to the Presiding Officer objecting to his name being entered in the ballot paper, against his will, and later came up with an affidavit before the Commissioner at the appeal stage, wherein he stated that, he expressed his unwilling ness to the Presiding Officer in presence of all other members to become a candidate for the office of the Chairman and protested against his name being entered in the ballot paper. The appellate Court has further found that the statement of Ali Azam that he protested as stated above, is further corroborated from the fact that Ali Azam proposed the name of respondent No. 5 in the same meeting for the office of the Chairman. Mr. Rab's contention that when the law did not provide for giving of consent there was no question of giving the consent by Ali Azam or withholding the same when his name was validly proposed and seconded. 1 he right to contest an election and to withdraw from it is inherent in a person. The effect of it can only be controlled by law. Where law does not provide for the time and mode of giving consent and withdrawal, the normal mode of giving it by express words or by silence and refusing consent verbally before the poll is held, in our opinion, is a mode acceptable. According to Mr. Rab, the Presiding Officer could not in terms of the election rules, refuse to enter the name of Ali Azam in the ballot paper once it was duly proposed and seconded and he, therefore, could not oblige Ali Azam if even he had protested, by not entering his name in the ballot paper. The argument of Mr. Rab leads to a very absurd position if made applicable in a general way to all cases. If accepted, i will amount to an unwilling horse being forcibly taken to water. However valuable the right of a citizen may be to elect his own representative, it cannot be said or held that, that right extends to electing a person to an office to which he does not intend to be elected. The learned Advocate‑General in reply to the argument of Mr. Rab on this point relied on the dictionary meaning of the word `Candidate' as well as on a passage to be found in Article 445 at page 255, Halsl5ury's laws of England, Third Edition, Volume

14. The dictionary meaning of the word `candidate' as found in Chambers's Twentieth Century Dictionary, is "one who offers himself for any office or honour, so‑called because, at Rome, the applicant used to dress in white". From this the learned Advocate‑General wanted to argue that the candidate must express himself in favour of his own candidature. This, as we have observed earlier, we cannot wholly agree with, because there may be a case as already indicated, where silence of the candidate, when his name has been proposed by some other person, may be construed as his implied consent to seek the office. In Article 445 of the Halsbury's Laws of England the defini tion of a candidate is given thus. "A candidate is a person who is nominated as a candidate at the election, or is declared by himself or by others to be a candidate on or after the day of the issue of the writ for the election or after the dissolution or vacancy in consequence of which the writ was issued." From this definition of the word `Candidate' as given in Halsbury's Laws of England it becomes clear that in every case unless specifically required by law, the candidate need not express in writing or even by words of mouth. But where a candidate against a proposal made in his favour puts an objection or expresses his unwillingness there it cannot certainly be said that he was a willing party to the election in which he was being set up as a candidate. The consent of the candidate can be implied or express. In the present case it cannot even be conceded that the consent was an implied one in view of express unwillingness of Ali Azam, Thus Ali Azam cannot be said to be a contesting candidate in the said election. And this being the position, his name ought not to have been entered in the ballot paper in the column of candidates. For the reasons stated above, we are inclined to take the view that the contention of respondent No. 5 was rightly upheld by the Collector as well as the Additional Commissioner. In the facts of the present case, therefore, we cannot agree with the proposition advanced by Mr. Rab that the consent or no consent of the third candidate, Ali Azam, is of no consequence in the matter of the ultimate outcome of the election. For the reasons stated above, we do not think that the petitioner has any case to sustain the Rule nisi that he has obtained from this Court. We, therefore discharge the Rule but leave the parties to bear their own costs. ABDUL HAKIM, J.‑I agree. A. E./S. Q. Rule discharged.