P L D 1965 Dacca 231 (PLP)

A. S. CHOWDHURY, J.‑As some of the points of law raised in these two petitions under Article 98 of the Constitution are identical, they have been heard together and are being disposed of by this judgment. Petition No. 407 of 1964, has been presented to this Court by one Muhammad Abdus Salam who has described himself as a resident of Pirpur, a village within Radhanager Union of the district of Dacca. His case, briefly stated, is that he is a qualified voter for the next general election to be held under the Electoral College Act, 1964 (Act IV of 1964) (hereinafter called the Act). His grievance is that the village Pirpur has been split up into three parts. It is stated, inter alia, in the petition:‑ " . . . . . that village Pirpur which has a population of 1,708 has been split up into three parts ; the portions of Pirpur marked `A' in red colour in the said map have been included into Electoral Unit No. 13 Pirpur, with a population of 1,200; the portions of Pirpur marked `B' in green colour in the map have been cut off from Mouza Pirpur and tagged with Unit No. 4 Mouza Saharehar which is about 2 miles away and intervened by another village Radhanagar and a Khal ; and the middle portions of village Pirpur marked `C' in yellow colour in the said map have been tagged with Electoral Unit No. 11 Pirijarkandi which is about 1J miles away intervened by beels and Khal and thus territorial unity, contiguity has not been maintained . . . . ." Mr. Bose, the learned Advocate for the petitioner Muhammad Abdus Salam in reply to a question put by us has informed that his client is a resident of the main part of the Electoral Unit No. 13, territorial unity of which has not been affected. He concedes that the entire Unit No. 13 is within the village Pirpur. He, however, contends that splitting up of the other parts of the village has been illegally done. It is stated inter alia in the affidavit‑in‑opposition affirmed by the respondent No. 3, the Delimitation Officer that:‑ "Pirpur village is divided by so many paras. Unit No. 13 Pirpur has been formed with a population of 1,200 as per circular order (To form one unit with a population not less than 1,000 and not more than 1,600). One para of Pirpur village has been included in Unit No. 4 Allapur and Shaharcha‑Just adjacent to it." In the Petition No. 409 of 1964, the petitioner Muhammad Zaharul Huq asserts that in his case territorial unity has beer violated. It is further claimed that he has not been given an hearing by the appellate authority and the officers responsible for delimitation has acted mala fide. It is stated in the said petition that Muhammad Zahural Huq is the voter of Chaluahati Union Council No. 10 in the district of Jessore and he claims that Chaluahati Union has been divided into several units and it is further alleged: "That in Chaluahati III the principles of contiguity and compactness have been violated inasmuch as the villages Shiger‑Khujura and Ratneswarpur have no contiguity inasmuch ...as‑it is divided by low cultivable land extending to about a mile without any direct road connecting them , and same is the distance between Chaluahati and Baje‑Chaluati in Chaluahati II" It is stated in affidavit‑in‑opposition afiiirtned by Mr. NUr l Huda, the Delimitation Officer for the area concerned: ‑‑‑ " . . . . . . that the intervention of law cultivable lands between two Mouzas cannot be considered as a break of contiguity and compactness. Shiger Khujura and Ratneswarpur of Union No. 3 are contiguous bearing J. L. 201 and

202. A glance on "the Map of Manirampur P. S. as is published by the Govern ment will speak for itself. The two Mouzas Chaluahati and Baje‑Chaluahati bearing J. L. 191 and 203 are also contiguous."‑ Both Mr. Bose, the learned Advocate for the petitioner Muhammad Abdus Salam and Mr. Shahabuddin, the learned Advocate for the petitioner Muhammad Zahural Huq have argued that the `mandatory provision' of subsection (2) of section 6 of the Act has been violated. Mr. Muhammad Nurul Huda, the learned Deputy Attorney -General submits that subsection (2) of section 6 of the Act merely directory and not mandatory and that no statutory provision has been violated. Section 6 of the Act is in the following terms:‑ "Delimitation of electoral units.‑(1) The electoral units shall be delimited by the Delimitation Officers under the super intendence, direction and control of the Commissioner. (2) The electoral units within an area shall be delimited having , regard to territorial‑ unity and, so far as practicable, to distribution of population and administrative convenience". Plain reading of subsection (2) is that electoral units "shall be delimited". To this extent it is mandatory. Further requirement, however, is that delimitation shall be effected "having regard to territorial unity". The expression "having regard to" means bearing in mind or taking into consideration. Therefore, the requirement is to bear in mind the question of territorial unity. Even if it can be said that there is a command, it consists in taking into consideration the question of territorial unity. It is nowhere provided that the territorial unity shall be maintained in all circumstances. No such assurance can be read in the said provision. Territorial unity has indeed been made a basic con sideration but it is not an absolute requirement of law. In order to succeed in these petitions it is to be established that delimita tion has been effected in a manner contrary to a mandatory provision of the statute. It is claimed in these two petitions that the territorial unity has been violated. It has neither been urged nor can it be found on the materials before us that the question of territorial unity has not been considered at all. It is true that consideration means fair and reasonable approach to the question. It requires faithful and true application of mind to the direction of the Legislature. It must be done bona fide, and not in fanciful and haphazard manner. But, it is indeed difficult to hold that the question of territorial unity was not made the basis of consideration in the determination of the units in these two cases specially in view of the assertions made in the affidavits‑in- opposition as quoted above. It has also been urged on behalf of the petitioners that the expression " having regard to the territorial unity " means "maintaining territorial unity". We must say the word "maintain ing" is not found in the statute. We cannot, therefore, read into a statute a word which is not there, nor in this case there is any clear necessity to do so. It has also been submitted that the subsection (2) of section 6 of the Act having been divided into two parts, the first part is mandatory and the second one is directory. It is contended that the words "territorial unity" are not qualified by the words "so far as practicable" occurring in the subsection (2) of section 6 of the Act in regard to distribution of population and administrative convenience. This according to the learned Advo cates for the petitioners, indicates that the Legislature has left the questions of distribution of population and administrative conve nience to the consideration, as far as possible, of the Delimitation Officers. This argument would probably be of some force had the language used in the first part would contain an assurance of maintenance of territorial unity; but the expression "having regard to itself means to "bear in mind." Reasonable explanation of the words "so far as practicable", occurring in the latter part of the said subsection (2) is that the mind should invariably be applied to territorial unity, but the question of distribution of population and administrative convenience should be taken into consideration when it is possible so to do. The language it seems to us, has been designed to convey the difference in the degree of require ment for consideration of these elements in delimiting the units. In the case of Illengworth v. Walmsley ((1900) 2 Q B D 142), it was held that Schedule 1, clause 2 of an English Act, namely, the Workmen's Compensation Act, 1897, which provides that in fixing the amount of a weekly payment regard is to be had to the difference between the average weekly earning of the workmen before the accident and the average amount which he is able to earn after the accident, does not operate so as necessarily to cut down the maximum rate of compensation allowed by clause 1 (b) of the Schedule. Clause 2 of the aforesaid English Act is in the following terms:‑ "In fixing the amount of the weekly payment, regard shall be had to the difference between the average weekly earnings of the workman before the accident and the average amount which he is able to earn after the accident, and to any payment not being wages which he may receive from the employer in respect of his injury during the period of his incapacity." In considering the aforesaid clause, Romer, L. J., observed :‑ "All that clause 2 means is that the Tribunal assessing the compensation is to bear in mind and have regard to the average weekly wages earned before and after the accident respectively. Bearing that in mind, a limit is placed on the amount of compensation that may be awarded." This case undoubtedly lends support to the view expressed by us that the expressions "having regard to" and "bear in mind" are synonymous. The case referred to above was also considered in the case of Webster v. Sharp & Co., Limited ((1904) 1 K B D 218). Referring to clause 2 of the said Workmen's Compensation Act, Collins, M. R., observed as follows:‑ "I think that follows from the words of Sched. 1, clause 2, which provides that "in fixing the amount of the weekly payment, regard shall be had to the difference between the amount of the average weekly earnings of the workman before the accident and the average amount which he is able to earn after the accident." In that provision the Legislature appears to suggest a topic for the consideration of the county Court Judge, which could only be relevant in the sense that it might lead to a reduction of the amount awarded below the maximum. The county Court Judge is not directed so to reduce the amount, but he is invited to consider the relative amounts of the earnings at the two periods from the stand‑point that the proportion of the maximum to be awarded may require adjust ment with reference thereto." Pointing out the element of discretion left in the Judge and flexibility with which he is to consider the question, Mathew, L. J., observed as follows:‑ "I think the meaning of the directions contained in Sched. I, clause 2, of the Act is plain. The county Court is thereby directed to consider the relative amounts of the workman's weekly earnings before and after the accident." It was further observed :‑ "But the comparison of the earnings at the two periods is clearly an element which the Judge is bound to consider in relation to the circumstances of the particular case." Therefore, in the case before us also a Delimitation Officer is to consider the question of adjustment "in relation to the circumstances of the particular case " regard being had to the question) of territorial unity. In the case of the Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras ((1890 24 Q B D 371)), the expression "regard being had" came to be considered. In that case one Richard Westbrook who was a Collector of rates for the parish of St. Pancras in 1858, sought permission to retire in December 1888, on the grounds of his declining health and asked for allowances he was entitled to. It was claimed that the allowances must be in accordance with the scale laid down in the Act and that Richard Westbrook was not agreeable to take the amount less than the scale laid down in the 4th section of the Act. Section 1 of the relevant Act was in the following terms "The vestry of any parish . . . . . may, at their discretion, grant to any officer in their respective services . . . . . who shall become incapable of discharging the duties of his office with efficiency by reason of permanent infirmity of mind or body, or of old age, upon his resigning or otherwise ceasing to hold his office, an annual allowance, not exceeding in any case two thirds of his then salary, regard being had to the scale of allowances hereinafter contained . . . . ." The view expressed in the case is that the authority is to require to look into the scale, not that it is binding. Similarly, in the case before us the Delimitation Officers are to take into con sideration the territorial unity. The view we take is that the expression "having regard to" means "taking into consideration". That view is supported by the following observation of Lord Esher, M. R.: ‑ "Then there are the words in section 1 uiiuij"regard being had to the scale of allowance hereinafter contained. That scale is set out in section 4, and is a rising scale according to the number of years' service." The learned Master of the Rolls proceeds further to observe:‑ "It seems to me, therefore, that they have a discretion as to the amount though they cannot go beyond that set out in the scale. This interpretation takes away all difficulty in consider ing the meaning of section 4, for the word "shall" only applies to the use of the scale to ascertain the maximum, and not otherwise to the question of amount; and further it gives reason able, fair and sufficiently elastic power to thevestry, instead of a hard and fast rule which may work injustice in some cases." Similarly, it seems that the Legislature felt that in the very nature of things to give an absolute mandate that territorial unity must be maintained in all cases might give rise to absurdity in some cases in delimiting the units. In the case cited above, Fry, L. J.,. '" also observed:‑ "Then come the words which are not easy to construe, "regard being had to the scale of allowance hereinafter contained." That seems to me to indicate that the vestry must look at the scale of allowances. But what is the use of looking at them if they can say nothing about them or do nothing with regard to them? They must look at them for some real purpose. Now there can be no purpose for which they are to look at them if the scale acts automatically; and, therefore, I think although the words are not so felicitous, or so clear as they might have been, that the true meaning is that the vestry or other body shall look at the 4th section to see that they do not exceed it." Similar view has also been expressed in the case of Perry v. Wright ((1908) 1 K B D 441). In that case Fletcher Moulton, L. J., considering the same provision of the Workmen's Compensation Act as quoted above observed as follows:‑ " Regard may be had' to it. In other words (to use the phrase employed by Farwell, L. J. in the course of the argument of one of the cases before us), the facts which the Courts may thus take cognizance of are to be `a guide, and not a fetter'." In the case of Palser Grinling and Property Holding Co. Ltd. v. Mischeff (1948 A C 291), the expression "regard shall be had" came up for consideration by the House of Lords. In that case the question was as to what would be the fair rent. The provision of law was that the tenant would be provided with furniture. In fixing the rent of the house value of the furniture to the tenant would be taken into account. The statute indicated "regard shall be had to the value to the tenant". This is how the words "regard shall be had" came for interpretation. Viscount Simon in his speech observed:‑ "It is the value to him (and included in that value is the fact that he may assign or sub‑let) which must be taken into account. But in taking this view, it is of the utmost importance to observe that the section directs that "regard shall be had" to the value to the tenant, and not that the value to such tenant, is to govern the calculation absolutely." The above observation supports the view expressed by us that the requirement of territorial unity must be the basic con sideration but that cannot in all cases govern the decision of settling units absolutely. Mr. Shahabuddin has laid emphasis on the word "shall" occurring in subsection (2) of section 6 of the Act; but we have sufficiently indicated that the word "shall" leads us to the expression "having regard to"; that means the mandate is for F taking into consideration. Moreover, the word "shall" is no always obligatory; it may, in certain circumstances, be directory also. A reference may be made to another decision relating to the Bankruptcy Act. It is provided in the said Act that in certain given situation the Court shall adjudge a person as bankrupt. Can it be said that as soon as certain circumstances are fulfilled the mandate is that the Court must adjudge him as bankrupt? The reply to this question may be found in the case of In re: Lord Thurlow. Ex Parte : Official Receiver ((1895) 1 Q B D 724). In that case it was held that upon an application of bankruptcy against a debtor in a case within section 20, subsection (1) of the Bankruptcy Act, 1883, the Court of Bankruptcy is not bound forthwith to adjudge the debtor bankrupt, but may for good reason adjourn the pro ceeding under section 105, subsection (2) of the Act. In that case Lopes, L. J., observed:‑ "It is clear that the word "shall" is not always used in mandatory sense. There is abundance of authority to the contrary in cases where it has been held to be directory only." So far as delimitation is concerned, we have already held that the word "shall" is mandatory and the officers concerned are to delimit the units and in doing so they have to take into consideration the territorial unity. We have, therefore, reached the conclusion that the requirement of law as provided in subsection (2) of section 6 of the Act is to take into consideration the question of territorial unity. We have looked into the maps annexed to these petitions. It indicates, that the question of territorial unity was kept in view in delimiting the units. In some cases there was scope for improvement but we cannot be asked to substitute our judgment for that of the Delimitation Officer. We are, however, of opinion that it cannot be held on the materials before us that this question was not taken into consideration. There has, therefore, been from violation of the requirement of law as laid down in subsection (2) of section 6 of the Act. So far as Petition No. 407 of 1964, is concerned, no other point was raised before us and as such the Rule issued on this petition must be discharged. We would, however, observe in this connection that Mr. Bose has in his usual frankness told us that so far as his client is concerned, he is within main part of Mouza Pirpur only no other village having been tagged with the same unit. That being so, so far as territorial unity is concerned, has been completely maintained in the unit to which petitioner Abdus Salam belongs. He has, therefore, no grievance. That brings us also to the question as to whether he is an "aggrieved party". Article 98 of the Constitution provides, inter alia, that a High Court may make an order contemplated under the said Article on the application of an "aggrieved party". In the case of Ex parte Sidebotham In re: Sidebotham ((1880) 14 Ch. D 458), it was held that as aggrieved person must be a man who has suffered a legal grievance. In that case James, L. J. observed as follows:‑ "But the words "person aggrieved" do not really mean man who is disappointed of a benefit which he might , haves received if some other order had been made. A "person " aggrieved" must be a man who has suffered a legal grievance. a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." Similar view was also expressed in the case of Ex parte Official Receiver In re: Reed Bowen & Co. ((1887) 19 Q B D 174). It was, however, found that the definition is not an exhaustive one and we make it perfectly clear that whether a person is aggrieved or not, is to be decided on the facts of each case. But in this case, on the concession of Mr. Bose himself, we are satisfied that he is not an aggrieved person at all. On that ground also this petition is liable to be rejected. Mr. Shahabuddin has, however, argued two additional points in the Petition No. 409 of 1964. He has submitted that he has not been given any hearing at the appellate stage and as such principle of natural justice has been violated. It is, however, stated in paragraph 8 of the said petition as follows:‑ "That the objection filed on 6‑7‑1964, was heard by the Delimitation Officer on 15‑7‑1964, and he forwarded the papers to the S. D. O. (Sadar) Jessore the Appellate Authority under the Act and the Appellate Authority without hearing your petitioner dismissed the objection and maintained the list prepared by the Delimitation Officer and the said preliminary list was finally published on 30th July 1964." The statement quoted above itself shows that the petitioner was given a hearing by the Delimitation Officer. There is no provision for a second hearing by any appellate authority under the statue and we cannot hold that there has been any violation of the principle of natural justice in this case. The next point urged by Mr. Shahabuddin is that the officers have acted mala fide. This argument is based on the assertion made in the petition to the effect that one. Dr. Ahad Ali Khan mani pulated the delimitation as finally published and Mr. Shahabuddin claims that the map itself indicates such manipulation. The map does not indicate that Dr. Ahad Ali Khan had drawn the map or that it was at his behest that Delimitation Officer had drawn it up and that it is not the result of independent judgment of the Delimitation Officer. We are satisfied that the petitioner has totally failed to substantiate his claim that the Delimitation Officer had acted mala fide. We must also say that to succeed on an allegation of mala fide, the petitioner has to make out specific case and set out detailed circumstances to enable a Court to come to the conclusion that a certain action is mala fide. Here the allegation of mala fide have been stoutly denied in the affidavit in opposition. Our Supreme Court held in the case of Mian Iftikhar‑ud‑Din and another v. Muhammad Sarfraz Administrator, Progressive Papers Ltd. and another (P L D 1961 S C 585), that a petitioner in order to succeed on the plea of mala fide must prove specific allegations. Their Lordships observed ‑‑ "It appears to us that the plea as to mala fides must fail on the simple ground that there are no specific allegations as to mala fide. Before the High Court, too, there was a vague statement that the order was a mala fide and the same is the position before us." For the reasons stated above, the Rules in both the petitions must be discharged and we order accordingly. We use the phrase which was the subject of a long discussion before us and say that "having regard to" the facts and circum stances of the case, we make no order as to costs in these two petitions. ABU MD. ABDULLA, J.‑I agree. K. B. A. Rule discharged.