1969 PLP 968 (SCMR)

(5) that 16 tendered votes cast in favour of the appellant were not counted amongst the votes cast in his favour. Khawaja Mahmud Sadiq, P.C.S., Additional Commissioner, Sargodha Division, who heard this election petition as the Election Tribunal, Sargodha, accepted the election petition and set aside the election on the sole ground that 99 ballot papers, of which 66 were cast in favour of the respondent No. 1 and 33 in favour of the appellant, bore the initials of some person other than the Presiding Officer. This, according to him, was sufficient to show that "some foul play was committed", particularly, since this "presumption" was further strengthened by the fact that only 558 names were ticked off on the electoral roll of, the constituency, although 646 ballot papers were actually issued. The election as a whole was, therefore, declared void and a re‑election ordered. The respondent No. 1 challenged this order by a petition under Article 98 of the Constitution in the High Court, alleging that the Election Tribunal had acted arbitrarily and in disregard of the principles of natural justice by denying him the opportu nity of either filing a written statement to controvert the allega tions made by the appellant or of adducing any evidence to rebut the said allegations. According to this respondent he appeared for the first time b‑‑fore the Tribunal on the 4th of May 1965, with his counsel, denied the allegations made against him and wanted to rebut the same by filing his written statement and adducing evidence, but the Tribunal observed that there was no need of filing any written statement or recording any evidence, as the proceedings before him were of a summary nature. Thereafter, the Tribunal, on a perusal of the original records of the election, adjourned the case to 5‑5‑65 for orders, On the latter date the case was again adjourned to 14‑5‑65 for orders. On this date the election petition was again adjourned for orders till 24‑5‑65, as the parties were busy with the elections to the Provincial Assembly. On 24‑5‑65 the Presiding Officer was engaged in giving evidence in the Sessions Court, Gujranwala, hence the matter was again adjourned to 1‑6‑65, when orders were ultimately announced and the election was declared void. The respondent No.l further maintained that the Tribunal had by adopting this illegal procedure actually prevented him from showing that the 99 ballot papers, which were found not to have been initialled by the Presiding Officer, were in fact signed by one Mr. Inamuddin, a Polling Officer, who had been duly authorised by the Returning Officer under section 18 (3) of the Electoral College Act, 1964, to perform the functions of tile Presiding Officer during his temporary absence. These ballot papers, which were duly stamped with the official mark, were thus properly initialled by Mr. Inamuddin while lawfully acting in the place of the Presiding Officer and, therefore, could not have been treated as void. If evidence had been allowed to be adduced, as requested by the respondent, the Tribunal would not have fallen into this grave error. This fact, it was further alleged, was within the knowledge of the appellant who not only raised no objection to it at any time but actually joined the other candidates in signing a certifi cate to the effect that the election had been fairly and satisfactorily conducted. The said respondent also contended that even assuming for the sake of argument that the said 99 ballot papers were invalid that by itself was not sufficient to lead to the conclusion that the result of the election had been materially affected, for, even if such ballot papers cast in favour of the candidates respec tively were excluded he would still have a majority over the appellant. The mere fact that there was some discrepancy in the placing of tick marks on the electoral roll against the names of the voters to whom ballot papers had been issued as required by section 40 (2) (h) of the Electoral College Act of 1964, was also not, it was urged, sufficient to lead to the conclusion that the result of the election had been materially affected, for, a candidate could not be penalised for the mistake or ineffi ciency of the officers charged with the performance of this duty. The petition under Article 98 of the Constitution was contested by the appellant alone. He first raised two preliminary objections to the maintainability of the petition. The first was on the ground that the respondent No. I had not clearly defined the relief that he sought and the second was on the ground that since a by‑election had in the meantime been held in accordance with the direction of the Election Tribunal the constitutional petition had become infructuous. The High Court repelled both these contentions. It found that the constitutional petition read as a whole in a free and liberal manner left no manner of doubt as to the nature; of tile reliefs claimed therein. Furthermore that the mere fact that a by‑election had since been held during the pedency of the writ petition was not a ground upon which the petition should fail, for, the impugned order of the Tribunal would still remain subject to judicial scrutiny. If it was found to have been made without lawful authority then all consequential proceedings, including the by‑election, would cease to have effect automatically. On merits also the High Court accepted the contentions of the respondent No.

1. The record of the proceeding before the Election Tribunal, according to the High Court, fully bore out the contentions of the respondent No, l to .the effect that the Tribunal had considered itself justified in deciding the election petition merely upon the allegations contained therein and the arguments addressed before it. The record did not, according to the High Court, give any indication that the Tribunal had ever even enquired from the parties if they wished to adduce any evidence. The question of affording the parties the opportunity of doing so hardly arose, for, the Tribunal manifestly considered this unnecessary even though the case was adjourned on at least three occasions for one reason or the other. The appellant's contention that the respondent No. I had himself chosen not to file] any written statement or to produce any evidence was thus found unacceptable by the High Court, not only because it was not supported by any order of the Tribunal calling upon the respondent to file his written statement but also because it was hardly likely that a person who had won the election by a comfortable majority and had a good answer to the allegations upon which the election was sought to be set aside, would remain content to allow the allegations to go unchallenged. The Memorandum No. 33‑A/Vt.4, dated the 2nd November 1964, which was in the original record of the election, was filed by the respondent No. I in the High Court. It clearly showed that the Returning Officer had authorised Mr. Inamuddin, one of the Polling Officers in this constituency, to act in the place of the Presiding Officer till he returned from a visit to his office at Toba Tek Singh. In view of this authorisation which was lawfully given under the provisions of the statute itself it could not be said that the ballot papers signed by such a duly autho rised person were invalid or that they had been put in by any "foul play". The High Court was also of the view that the Election Tribunal had not even perused the records with the care that was expected of it, for, if it had done so it would surely have noticed that the record contained this authorization as also an acknowledgement in writing signed by the three rival candidates to the effect that the election had been held in a free, fair and satisfactory manner and that none of the candidates had at any stage made any kind of grievance against the polling staff. Even though the signing of the acknowledgement was not conclusive on the question of the correctness of the facts mentioned therein it was certainly a very important circumstance which should have been taken into account in coming to any finding of "foul play" in the conduct of the election. On these grounds the High Court came to the conclusion that the enquiry by the Tribunal had been held in direct contravention not only of the mandatory provisions of sec tion 60 (c) of the Electoral College Act but also in disregard of the recognised principles of natural justice. The order of the Tribunal was, accordingly, declared to be without lawful authority and was set aside but the election petition was remitted back to the Election Tribunal of competent jurisdiction to be heard in accordance with law. The appellant then obtained leave to appeal to this Court from the said order. Leave was granted to consider whether the High Court had acted rightly in holding that the election Tribunal was not justified in disposing of the election petition before it after hearing arguments only when the contesting party before it had filed no written statement nor adduced any evidence. Learned counsel appearing in support of this appeal has, in addition to the point on which leave was granted, also argued that the writ petition had become infructuous, as during the pendency of the writ petition a by‑election had been held in which both the appellants and the respondent No. 1 had participated and the appellant had been duly elected. We are unable, however, to accept this contention as sound. The by‑election, it has to be mentioned, was held during the pendency of the litigation in which the validity of the order, by which the by‑election had been directed, was itself in dispute, in spite of the efforts of the respondent to get the writ petition heard early and to have the by‑election stayed. This was not a case in which the respondent No. 1 could be said to have acquiesced in the holding of the by‑election. Can it then be said that he had waived his right to have his constitutional petition heard and decided? We think not. The validity of the by‑elation itself, was in the circumstances, dependent upon the validity of the order which directed it. If that order is set aside then it must follow as a consequence that all subsequent actions taken pendente lite in pursuance of that illegal order must also become null and void. If the authority under which the by‑election is held is itself found to have been given illegally then the by‑elec tion cannot be said to have been legally held. This view also finds support from the decision of this Court in the case of A. K. Fazlul Quader Chaudhury v. Syed Shah Nawaz and 2 others (P L D 1966 S C 105) where notwithstanding that fact that a by‑electron had been held and the seat of a member, whose resignation had been illegally accepted by the Speaker, was filled, this Court upheld the order of the High Court setting aside the order of the Speaker as also the consequential by‑election. The next contention of the appellant is that there was in fact no denial of opportunity of either filing a written statement or adducing evidence in the present case, since the respondent No. 1 was duly summoned to show cause and to file his written state ment, if any. He chose not to do so and, therefore, cannot now be allowed to make a grievance of it. The respondent No. 1 has clearly stated in his writ petition in the High Court that when he appeared for the first time before the Election Tribunal on the 4th of May 1965, he wanted to rebut the allegations in the election petition by filing a written statement and adducing evidence but the Tribunal took the view that this was not necessary, since the proceedings before him were of a summary nature. This statement is not controverted by the appellant in the written statement filed by him in the High Court. In the circumstances, it cannot be said that the said respondent of his own choice abstained from filing a written statement or adducing evidence. Indeed, on a perusal of the orders of the Election Tribunal that have been filed it appears that the Tribunal never called upon the respondent to file his written statement nor fixed any date for the taking of evidence. No order has also been filed by the appellant to show that the respondent No. 1 was ever called upon to appear and put in his written statement as is now contended. In the circumstances, we are inclined to agree with the High Court that the respondent's allegation is true and he never acquiesced in the procedure adopted by the Election Tribunal. We are also in agreement with the High Court that the case was not one which could have been disposed of upon a mere perusal of the record. Rule 36 (1) (a) of the Rules framed under the Electoral College Act, 1964, gives the Election Tribunal jurisdiction to declare the election of a returned candidate or the election as a. whole to be void only "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 provi sion of the Act or these Rules." It was incumbent, therefore, upon the Tribunal to come to a decision that the result of the election was materially affected. The Tribunal has unfortunately not come to any such finding but has set aside the election merely on the ground that the 99 ballot papers were not signed by a competent officer. Without going into the question as to whether Mr. Inamuddin, the Polling Officer, was duly authorised to act as the Presiding Officer during the latter's temporary absence and whether the Presiding Officer was actually absent when he signed them we are of the view that even if the 99 ballot papers so signed by Mr. Inamuddin are excluded from the total number of votes polled in favour of the rival candidates, the respondent No. 1 would still have a majority of 2 and the result of the election would not be materially affected. This was the only ground upon which the Election Tribunal proceeded but the learned counsel appearing in support of this appeal has also sought to raise other grounds to show that the result of the election was, in fact, materially affected. But since we have come to the conclusion that the High Court rightly set aside the order of the Election Tribunal on the ground that the Tribunal had acted in clear contravention of the mandatory provisions of section 60.of the Electoral College Act, which require that the Tribunal shall upon receipt of an election petition give notice thereof for all the contesting candidates and pass orders thereon only after giving the contesting Candidates "an opportunity of being heard and taking such evidence as may be produced before it", We do not propose to go into the merits of the point urged. It will be for the Tribunal to decide these questions at the re-hearing of the election petition as directed by tile High Court. It will be sufficient for our present purposes to point out that even apart from the mandatory provisions of section 60 of the said Act we would have had no hesitation in iwid'!5g that an election Tribunal being charged with a duty to decide upon a lis had of necessity to act as least a functionary exercising quasi‑judicial authority and to observe tile essential froms of a judicial namely; to give an adequate opportunity to the contest ing party to rebut tae allegations made against him. By failing to do so it clearly violated a fundamental rule of natural justice that no one shall be penalised unheard. The Tribunal's order was, therefore, clearly without lawful authority even in the limited connotation which was given to this phrase in the case of Mian Jamal Shah (P L D 1966 S C 1). For these reasons we see no merit in this appeal which is, accordingly, dismissed with costs.