P L D 1968 Supreme Court 387 (PLP)

MUHAMMAD YAQUB ALI, J.‑the facts necessary to be stated for the purpose of this certificated appeal are that by election to East Pakistan Provincial Assembly from Constituency No. PE‑126, Comilla VI, was held under the President's Order No. 4 of 1962 (National and Provincial Assemblies (First Elections) Order, 1962) on the 20th October 1963. 'There were three contestants for the seat, namely, Asghar Hussain, appellant, Mr. Abdul Awal Bhuiya, respondent No. 3, and one Nazir Ali Khan who is not a party to these proceedings. As a result of the poll, the respondent No. 3 having polled the highest number of votes was declared as duly elected, but the result of the election was challenged by the appellant by a petition under President's Order No. 13 of 1962, Settlement of Disputes (First Elections) Order, 1962 on various grounds which it is not necessary to set out here. The petition was accepted by the Tribunal by their order dated the 16th November 1964, to the following effect: "In view of our unanimous opinion that Mr. Abdul Awal Bhuiya has committed corrupt practices under Articles 52, 61, 62 and illegal practices under Article 54 of the President's Order No. 4 of 1962. We hold that the entire election including the election of Mr. Abdul Awal Bhuiya opposite‑party No. I is liable to be declared void and is liable to be set aside. The result therefore is that the election petition is allowed in part. The election as a whole including the election of Mr. Abdul Awal Bhuiya, opposite‑party No. 1, is declared to be void and is set aside. The prayer of the petitioner Mr. Asghar Hussain to be declared elected is rejected. In view of the majority opinion it is held that Mr. Mafizuddin Ahmad, Minister lncharge of Education, Government of East Pakistan, has committed corrupt practices under Article 63 of President's Order No. 4 of 1962 by exercise of undue influence on two electors, namely, Abdus Sobhan Bhuiya (P. W. 7) and Salimuddin Miah (P. W. 8) to induce them to vote for opposite‑party No. 1 Mr. Abdul Awal Bhuiya. Accordingly Mr. Abdul Awal Bhuiya, Mafizuddin Ahmad, Minister Incharge of Education, Government of East Pakistan, is held, guilty of corrupt practices under Article 63 of the President's Order No. 4 of 1962." The respondents Nos. 2 and 3 separately moved the High Court of East Pakistan for quashment of the order of the Tribunal under Article 98 of the Constitution on various ground, but both. the petitions were dismissed and further leave to appeal from the order of the High Court vas refused by this Court. Thereupon the appellant moved the Election Commission to disqualify the respondent No. 3 from being or being elected as a member o% any Assembly under Article 77 of the President's Order No. 4 of 1962 as amended by the President's Order No. 39 of 1962 which provided that: "Where a person has been convicted for any offence under this Order, or has been found guilty of any corrupt or illegal practice by a Tribunal under paragraph (a) of clause (2) of Article 26 of the Settlement of Disputes (First Elections) Order 13 of 1962, he shall, if the Commission makes an order to that effect, be disqualified from being, or being elected as, a member of any assembly for such period, not exceeding four years, as may be specified in such order." The Election Commission though moved on 8‑3‑1965 did not take any action to disqualify the respondent No. 3 with the result that the appellant on 6‑5‑1965 moved the High Court of East Pakistan with the prayer, that a rule nisi may be issued upon (a) the respondent No. 1, Election Commission, to disqualify the respondents Nos. 2 and 3 from being or being elected as members of any assembly; (b) for an order directing the respondent No. 1 to take action under Article 77 of the President's Order No. 4 of 1962 as amended by President's Order No. 39 of 1962 against respondents Nos. 2 and 3 which he is required by law to do; (c) that for an order directing respondent No. 2 Mr. Mafizuddfn not to participate in any ensuing election; and (d) that after election such cause as may be shown by the respondents or any one of them the rule nisi may be absolute. In support of the petition it was inter alia alleged that the respondent No. 1 was not taking action against the respon dents 2 and 3 with a mala fide intention. In reply the respondent No. 1 maintained that it had not so far received the Election Tribunal's record containing its judgment in Election Petition No. l of 1963 which the Tribunal was required to forward to the Commission under Article 29 of the President's Order No. 13 of 1962, nor had any certified or authenticated copy of the judgment been received by the Commission either from the Tribunal or the petitioner or his lawyer along with the demand notices. It was denied that the inaction on the part of the Commission was malafide. At the hearing of the writ petition the Deputy Attorney General who appeared for the Commission stated that the Commission did not consider it necessary to take any action , against the respondents Nos. 2 and

3. A further objection was taken on behalf of the Election Commission that the High Court of East Pakistan did not have the jurisdiction to issue any writ to it under Article 98 (2) (a)(i) of the Constitution as it did not perform any function in that province fin connection with the affairs of the Central Government. It was urged on behalf of the appellant that under Article 153 of the Constitution the Election Commission carried on its function throughout the territories of Pakistan and for that purpose had a regional office in Dacca and a direction as contemplated by Article 98 (2) (a) (i) could be issued by the High Court to the Commission on that basis, but the plea was ruled out with the observations: "After giving our due consideration to the arguments of Mr. Subhan and the provisions to which reference has already been made, we are unable to accept the contention. We area therefore, of the view that the petitioner is not entitled to ask for issuing the directions upon the Election Commission from this Court." On the main issue raised in the writ petition that under Article 77 of the President's Order No. 4 of 1962, it was incumbent upon the Election Commission to disqualify the respondents Nos. 2 and 3, the learned Judges in the High Court tentatively expressed the view that the provisions in Article 77 left no discretion in the Election Commission, but to disqualify a person from election once he is found guilty by the Tribunal. Reliance in this behalf was placed on the meaning of the word "may" in Maxwell, 11th Edition, page 231 wherein phrases, such as, "shall, if they think fit", "shall have power", and "it shall be lawful" have been found to convey the compulsory force. In the result the writ petition was dismissed for want of jurisdiction in the High Court. In view of the substantial question of law involving inter pretation of the Constitution the learned Judges granted to the appellant certificate under Article 58, to prefer the present appeal. As the question raised was of general public importance, the Court considered it necessary to issue notices to the Attorney General of Pakistan and the Advocate‑General of East Pakistan, both of whom appeared and assisted the Court. In support of the finding that the appellant was not entitled to approach the High Court of East Pakistan for issuance of a writ to the Election Commission the learned Judges in the High Court gave practically no reasons, but it appears that their decision was largely influenced by the judgment in the case of Deputy Managing Director, National Bank of Pakistan v. Ataul flaq (P L D 1965 S C 201). To appreciate the ratio decidendi in the aforementioned case it is necessary to refer briefly to its facts. Mr. Ataul Haq the respondent in that case was among others elected to the Central Board of National Bank of Pakistan. The election was held on the 20th July 1962, and four days after the election one of the successful candidates filed an application under Bye‑law 16 raising a dispute as to the regularity of the election, and asked that an Election Appeal Committee be constituted by the Managing Director as required by Bye‑law No. 16 (ii). An Election Appeal Committee was accordingly constituted consisting of the Managing Director, Mr. Zabir‑ud‑Din Ahmad, a Government nominated t Director and Mr. Muzalar Ali, an elected Director. All three o them resided in West Pakistan. The meetings of the Election Appeal Committee were held mostly in Karachi, while one meeting was held in Dacca on the 28th March 1963. As a result of the scrutiny of the votes and other material produced before them the Election Appeal Committee concluded that 50 votes had been accounted illegally on the side of Mr. Ataul Haq and that if those 50 votes were deducted from his total he would not have been duly elected. They consequently declared the election of Mr. Ataul Haq void and ordered a fresh election fur his seat. Consequent upon it the Managing Director of the Bank at Dacca on the 20th August 1963, issued a letter to Mr. Ataul Haq informing him of the Committee's decision and that with immediate effect he ceased to be the Director of the Central Board of the Bank. Mr. Ataul Haq filed a writ petition in the High Court calling upon the respondents which did not include the Managing Director to show cause why the order of Election Appeal Committee should not be held to be void and without lawful authority and for other ancillary reliefs. A Division Bench of the High Court issued a writ declaring void the order of the Election Appeal Committee from which an appeal was brought to this Court inter alla on the ground that in the facts and circumstances of the case the High Court of East Pakistan did not possess jurisdiction under Article 98 of the Constitution to issue a writ declaring the order made by the Election Appeal Committee to be without lawful authority and void. The learned Judges in the High Court had found the Bank, a local authority, within Article 98 (2) (a) (i) on the view that it was a statutory body, its Managing Director and three of its Directors as well as its Auditors were appointed by the Government of Pakistan, and the President of the Central Board to which the Management of the Bank is entrusted by the Ordinance of 1949 is also appointed by that Government and the Bank is itself a body corporate. The fact that the decision of the Election Appeal Committee was given in Karachi was not considered material to the point of jurisdiction for the. reason that the election in question was for election of two directors to represent the Dacca‑registered share holders on the Central Board, which "performs in this province functions in connection with the affairs of the Bank" and "the inquiry by the Committee was held in Dacca" and that the relief which in substance was required, namely, a declaration that Mr. Ataul Haq was still a Director of the Bank or a direction to the appropriate authorities not to give effect to the decision of the Election Appeal Committee could not be given unless a declaration was granted that the action of the Committee was illegal. The reasons which prevailed with the learned Judges in the High Court did not find favour with this Court, whereupon it was held that the claim of jurisdiction in the High Court of East Pakistan to issue a writ to quash the election of the Appeal Committee was not soundly based. The appeal was accordingly allowed and the writ issued by the High Court was recalled. The conclusion was based on the findings that the National Bank of Pakistan bore no resemblance to the recognised conception of a local authority and that after the Election Appeal Committee had given its decision the record of its proceedings became the records of the Bank. It was clear also that what was sought in substance in that case was a writ of certiorari for the certification of the said record to that Court so that investigation might be made as to the propriety and regularity of the proceedings of the Committee with a view to determine whether the final decision, being in the nature of a quasi‑judicial decision, should be maintained. Such a writ it was held could be issued to the National Bank of Pakistan at its head office in Karachi where also the records in question were held and it seemed clear enough from the wording of the relevant provisions in Article 98 that as Karachi is outside the territorial jurisdiction of the High Court at Dacca, the writ sought could not have been issued from that High Court. The decision rendered in the Deputy Managing Director, National Bank of Pakistan v. Ataul Haq as seen was inapplicable to the facts of the instant case. Firstly we are not dealing in the present case with a "local authority" and secondly the Election Appeal Committee was not a person or a local authority performing in the Province of East Pakistan functions in connection with the affairs of the Centre. Further on allowing the objections against Mr. Ataul Haq declaring void his election to the Central Board of Directors the Election Appeal Committee became functous officio and its records became the records of the National Bank of Pakistan with its head office in Karachi. As seen the Managing Director of the Bank was not joined as a party to those proceedings which omission was emphasised in the opening part of that judgment to bring out that the National Bank was not properly represented before the Court. In the present case we are dealing with the Election Commission which performs its functions through out the territories of Pakistan in connection with the affairs of the Centre as will be seen below. The provisions relating to the election of the President, the National Assembly and the two Provincial Assemblies and referendum are contained in Part VII of the Constitution. Article 153 provides as follows: "153. (1) For the purposes of (a) each election for the office of President; (b) each general election of the members of an Assembly; and (c) each referendum required to be held under this Consti tution, an Election Commission shall be constituted in accordance with this Article. (2) An Election Commission shall consist Of‑ (a) the Commissioner, who shall be Chairman of the Commission; and (b) a Judge of the High Court of the Province of East Pakistan and a Judge of the High Court of the Province of West Pakistan, each of whom shall be appointed by the President after consultation with the Chief Justice of the High Court concerned and with the Commissioner. (3) It shall be the duty of an Election Commission con stituted in relation to an election or referendum to conduct the election or referendum, and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with the law and that corrupt practices are guarded against." Chapter 1 of Part V makes provisions applicable to the Central and Provincial Legislatures including qualification of members, cessation of membership, oath of members of an Assembly, causation of vacancy in the Assembly, election of Speakers and Deputy Speakers, sessions of the Assemblies, rules of procedure, privileges, etc. of Assemblies, Instructions in law‑making, conduct of members, etc. The succeeding Chapter Part VI in the Constitution deals with relation between the Centre and the Provinces. Article 131 provides that the Central Legislature shall have exclusive powers to make laws for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule. Item 35 of the Third Schedule enumerates "Elections to the Office of President to the National Assembly and to the Provincial Assemblies: the Chief Election Commissioner and the Election Commissioners." The constitutional provisions reproduced above make out that the election to the Provincial Assemblies is the function of the Central Government performed by the Election Commission. Under sub‑Article (3) of Article 153 it is the duty of an Election Commission to conduct the election and to make such arrange ments as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. As per Item 35 of the Third Schedule to the Constitution the National Assembly has the exclusive jurisdiction to legislate on the subject of elections to the Provincial Assemblies. The implementation of the Laws passed by the National Assembly for holding of elections to the Provincial Assemblies, the settlement of election disputes, the appointment of tribunals to hear election petitions; and to implement the decisions of the Tribunal, is, therefore, an affair of the Central Government which the Election Commission performs in both the Provinces. It was urged that the Election Commission does not perform its functions "in the Province" of East Pakistan implying thereby territorial limitations on the exercise of jurisdiction by the High Court under Article 98 of the Constitution. The relevant words are: "performed in the Province". The Central Ministeries as well as many Departments of the Central Government are located in Islamabad or at Rawalpindi. Nevertheless they perform functions in both the Provinces in connection with the affairs of the Centre, such as, Defence of Pakistan, External Affairs, Insurance, Copyright, Patent, Design, Air Navigation, Mineral, Oil and Natural Gas, Meterology, National Libraries and Museums, election to the Office of the President, National Assembly and to the Provincial Assemblies, etc. Many Central Government Departments have their regional offices in either Province, such as, Election Commission and their personnels perform functions there in connection with the affairs of the Central Government. Could it be said that the orders made or proceedings taken by these Departments are not subject to the writ jurisdiction of the High Court of that Province because the main offices of the Ministeries and the Departments of the Central Government are not situated within the territories over which the High Court of East Pakistan exercised its jurisdiction. It will be useful in this connection to compare the provisions of Article 98 of the 1962 Constitution with section 223‑A of the Government of India Act and Article 170 of the 1956 Constitution. Section 223‑A which for the first time conferred writ jurisdic tion on the various High Courts in Pakistan provided that "Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them." Similarly Article 170 of the 1956 Constitution enacted that "Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part II and for any other purpose." The words which limited the jurisdiction of the High Court under section 223‑A were "any person or authority . . within those territories" namely in relation to which it exercises jurisdiction. Under Article 170 the limits were imposed by the words: "throughout the territories in relation to which it exercises jurisdiction." On the contrary under Article 98 the governing words are: "performed in the Province in connection with the affairs of the Centre, the Province or a local authority". Under section 223‑A the person to whom a writ could be issued should have been a resident within those territories in relation to which the High Court exercised jurisdiction. Under Article 170 no writ could be issued beyond the territories in relation to which the High Court exercised jurisdiction. These limitations were, however, done away with in the 1962 Constitution presumably for the reasons that while under the 1956 Constitution the Supreme Court had concurrent jurisdiction with the High Courts to issue writs, the 1962 Constitution took away that jurisdiction and but for this arrangement the citizens of East Pakistan would have been denied the remedy provided by Article 98 of the Constitution in respect of orders made and proceedings taken, etc., by persons performing in that Province function in connection with the affairs of the Centre. Some decisions from Indian jurisdiction dealing with the jurisdiction of High Courts under Article 226 of the Indian Constitution which corresponds to Article 98 of our Constitution were relied upon on behalf of the Election Commission, namely, Election Commission, India v. Saka Venkata Rao (A I R 1953 S C 210), A. Thangal Kunju Musaliar v. M. Venkatachalam Potti (A I R 1956 S C 246), Lt. Col. Khajoor Singh v. Union of India and another (A I R 1961 S C 532) and Shrlram Jhunijhun wala v. The State of Bombay (A I R 1962 S C 670). The decision in all these cases is based upon territorial limitations provided in Article 226 of the Indian Constitution which do not find place in Article 98 of our Constitution. In the case of Election‑ Commission v. Venkata Rao the learned Chief Justice in dealing with the question whether the High Court of Madras could issue a writ under Article 226 to Election Commission having its office permanently located at New Delhi observed: "Turning now to the question as to the powers of a High Court under Article 226, it will be noticed that Article 225 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the com mencement of the Constitution. Though there had been some conflict of judicial opinion on the point, it was authoritatively decided by the Privy Council in Ryots of Gasahandho v. Zamindar of Parlakimedi A I R 1943 P C 164(B) that the Bombay and Calcutta were in the same position had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and the power to issue such writs within those limits was derived by the Court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other High Courts in India had no power to issue such writs at all. In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England. But wide as were the powers thus conferred, a two‑fold limitation was placed upon their exercise. In the first place, the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction" that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be "within those territories", which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories." Neither limitations imposed on the powers of a High Court in India by Article 226 is contained in Article

98. The plain meaning of the words: "a person performing in the Province functions in connection with the affairs of the Centre" exclude territorial limitations, such as, that the person or authority to whom the High Court is empowered to issue writs must be C amenable to its jurisdiction either by residence or location within those territories which followed from the phrase: "to any person or authority, including inappropriate cases any Government, within those territories" in Article 226 of the Indian Constitution. In this connection the learned Attorney‑General drew our attention to clause (c) of Article 98 (2) which was added by the Constitution First Amendment Act, 1963. The powers conferred on the High Court to enforce fundamental rights described in clause (c) are in the following words: "(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government, exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter I, of Part II of this Constitution." The person or authority to whom a direction may be given under clause (c) must be functioning in relation to the territory within the jurisdiction of a High Court. The concept of territorial limitation is thus introduced to ensure that writs issued by the High Court do not run to tribal areas and certain States in the Province of West Pakistan. This brings out the intention of the Constitution that the jurisdiction conferred on a High Court to issue writs and directions under Article 98 (2) (a) (i) is not confined to the territories in respect of which it exercises its jurisdiction except for the enforcement of fundamental rights conferred by Chapter 1 of Part II of the Constitution. Mr. Israrul Hossain, the learned Advocate‑General, East Pakistan, had instructions to support the appeal and to uphold the jurisdiction of the High Court of East Pakistan to issue in appropriate cases writs to the Election Commission. He pointed out that under Article 211 (3) of the Constitution there is a second capital of the Central Government at Dacca which postulates that the Central Government functions from both the capitals. He also drew our attention to the rules framed by the Chief Election Commissioner under Article 154 of the Constitution which provide for maintenance of a regional office of the Election Commission at Dacca. The decision given by the High Court of East Pakistan that it has no jurisdiction to issue a writ or a direction to the Election Commission of Pakistan is thus unsustainable in law from every point of view. The Election Commission is "a person" or , authority" which exercises in the Province of East Pakistan functions in connection with the affairs of the Centre, namely, elections to the office of the President, National Assembly and the Provincial Assemblies and for holding a referendum as provided for in the Constitution. In that the Commission is subject to the jurisdiction of the High Court under Article 98(2)(a)(i) notwithstanding that its main office and secretariat are located in the Province of West Pakistan. This appeal is accordingly allowed and the case remitted to the High Court of East Pakistan for decision on the question whether the Election Commission was under Article 77 of the President's Order No. 4 of 1962 and Article 29 of the President's Order No. 13 of 1962 under a legal obligation to disqualify the respondents 2 and 3 on the findings given by the Election Tribunal that they had been guilty of illegal and corrupt practices in connection with the bye‑elections to the Provincial Assembly from Constituency No. PE--126, Comilla. Costs of these proceedings shall be costs in the cause. It falls to be said that as the dispute in this case relates to a bye‑election held in 1963 and the writ petition out of which this appeal arose was filed in the High Court as far back its 6th May 1:965, it is expedient that the case in the High Court should be disposed of at an early date before the long vacations. A. H. Appeal allowed.