P L D 1965 Dacca 86 (PLP)

SATTAR, J.‑The petitioner Golam Sarwar Molla and eight others including respondent No. 2 Taj Mahmud Sardar were candidates for election to the Provincial Assembly from Khulna IV‑PE‑51 Constituency. The respondent No. 2 Taj Mahmud Sardar was declared on the 7th May 1962, by the Returning Officer, Khulna to have secured the highest number of votes and therefore elected to the Provincial Assembly. The name of the returned candidate was published in the official Gazette on the 12th May 1962. Thereafter, on the 11th June 1962, the petitioner filed election dispute petition before the Election Commission under the provisions of the President's Order No. 13 of 1962 and prayed that a declaration be given that the election of Taj Mahmud Sardar to the Provincial Assembly was void. The election dispute petition came up for hearing before the Election Tribunal, East Pakistan and the Tribunal, by its order dated the 5th April 1963, dismissed the same on the ground of limitation as it was found that the application was filed long after the expiry of the period of limitation. It is against this order that the petitioner moved this Court and obtained the present Rule. It may be mentioned that in the election petition filed by the petitioner he had alleged: "That the aforesaid respondent No. 1, (present respondent No. 2 in this petition) has incurred expenses far in excess of the permitted limit for propaganda and other improper and illegal expenses which have not been shown in the return of election expenses. The petitioner will prove the same before the appropriate authority on receipt of the certified copies of the return of election expenses for which the petitioner applied before tile Returning Officer." In view of the above allegation, a point was taken before the Election Tribunal on behalf of the present respondent No. 2 that the election petition was filed beyond tune in view of the provisions of Article 11 of the President's Order No. 13 of 1962 as amended by President's Order No. I of 1963. This objection found favour with the Tribunal and in that view the order of dismissal was passed. Before we proceed to consider the arguments advanced in support of the Rule, it will be convenient if we quote Article 11 of President's Order No. 13 of 1962 as it stood before amendment and as it stands now. Article 11 before amendment read as follows:‑ "

11. Time for presentation or amendment of petition.‑(1) An election petition shall be presented within the thirty days next after the return made to the Commission under Article 18 of the Order or Article 39 of the Order, as the case may be, has been published. Provided that‑ (a) Where the petition alleges that a corrupt or illegal practice has been committed in relation to election expenses, it may be presented within the fourteen days next following the date on which the Returning Officer received the return of election expenses, under Article 54 of the Order; and (b) where it alleges that a corrupt or illegal practice has been committed by the returned candidate since the date of the election, but within the two months next following the publication of the result of the election in the official Gazette, it may be presented within the twenty‑eight days next following the date on which such corrupt or illegal practice was alleged to have been committed. (2) An election petition may be amended within the period specified by paragraph (a) or paragraph (b) of the proviso to clause (1) in order to include an allegation to which that paragraph applies." The substituted Article which was introduced by Article 2 of President's Order No. 1 of 1963 is in the following terms: "

11. Time for presentation of petition, etc.‑(1) An election pesition which, among other grounds, alleges that a corrupt or illegal practice has been committed in relation to election expenses, shall be presented within the fourteen days next following the day on which the Returning Officer received the return of election expenses under Article 54 of the Order. (2) Save as provided in clause (1), or in the next succeeding clause, an election petition shall be presented within the thirty days next after the return made to the Commission under Article 18 of the Order or Article 39 of the Order, as the case may be, has been published. (3) Where an election petition alleges that a corrupt of illegal practice has been committed by the returned candidate since the date of the election, but within the two months next following the publication of the result of the election in the official Gazette, it may be presented within the twenty‑eight days next following the date on which such corrupt or illegal practice was alleged to have been committed. (4) An election petition may be amended within the period specified by clause (1) or clause (3) in order to include an allegation to which that clause applies. If the two provisions are closely scrutinised, it will be seen that, so far as limitation of a petition containing an allegation of corrupt or illegal practice in relation to election expenses is~ concerned, no substantial change was made. The period of limitation was 14 days from the day on which the Returning) Officer received the Return of election expenses under Article 541 of the Order and was continued to be so by the amendment. It, however, appears that, while under the original provision of Article 11 of President's Order No. 13 of 1962, the Election Commission under Article 15 of the said Order was specifically empowered to dismiss an election petition for non‑compliance with the provisions of Article 11, there was no such provision in Article 21 (3) of the said Order specifically empowering the Election Tribunal to dismiss an election petition for non compliance with the provisions of Article

11. The said provision has now been made by the substituted Article 21 (3) which has been introduced by Article 4 of the President's Order No. 1 of 1963. With these preliminary observations, we now proceed to examine the criticism levelled against the order of the Tribunal. It has, firstly, been contended by Mr. Shafiqur Rahman, learned Advocate for the petitioner, that the President had no power at the relevant date to issue Order No. 1 of 1963. Learned Advocate for the petitioner has argued that, once having issued an Order under clause (8) of Article 229 of the Constitution the President could not amend the provisions of the said Order. It will be seen that by clause (1) of Article 229 of the Constitution it has been provided that this Article shall have effect until an Electoral College of Pakistan is constituted as provided in Article 158 of the Constitution. It has further been provided that this Article shall not affect the operation of any other provision of the Constitution which is not inconsistent with this Article. A close study of this provision clearly points to their conclusion that the powers of the President under clause (8) of Article 229 will continue until an Electoral College of Pakistan is constituted in accordance with the provisions of Article 158 of the Constitution. It also shows that while this Article will not affect the operation of any other provision of the Constitution but if any such provision is inconsistent with the provisions of this Article then the latter shall prevail. The power of the President under clause (8) of Article 229 of the Constitution is l legislative and thus, if any law is made in exercise of such al power, the same can be amended or repealed in exercise of the same power so long as the power is available. Learned Advocate for the petitioner has contended that after the exercise of the power under clause (8) of Article 229 of the Constitution by the President in issuing Order No. 13 of 1962, the provisions of that Order could be modified, added or omitted only in exercise of the powers available under clause (3) of Article 224 of the Constitution. We are afraid the argument cannot be accepted. The power under clause (3) of Article 224 is not legislative whereas the power under clause (8) of Article 229 is clearly legislative. It, therefore, follows that the legislative authority which made the law could also change the same, so long as the power continued, within the limits under which the said power was to be exercised. We have already in the case of Jamahis Sattar v. Badrul Huq Khan (F. M. A. 140/63 disposed of by us on 31‑7‑64) held that the power under clause (8) of Article 229 continues until the Electoral College contemplated by Article 158 is constituted. It cannot be argued that the change made in the law by Order No. 1 of 1963 was not within the limits of the power available under clause (8) of Article

229. In this view of the matter, the first contention of the learned Advocate for the petitioner fails. Mr. Shafiqur Rahman has then urged that, as the petitioner filed the election petition within the time allowed under the law as it then stood, he acquired a vested right which should not be taken away by a subsequent change of the law. Factually, the argument is not correct. Even under the previous law as we have already pointed out, an election petition containing an allegation of corrupt or illegal practice relating to election expenses had to be filed within 14 days of the receipt of the return of election expenses. Even assuming that it were not so, we do not see any bar for a legislative authority within its competence to take away a vested right. All that is necessary is that the language of the law relied upon must point to an intention, expressly or by necessary implication, to do so. In the present case, Article 2 of President's Order No. 1 of 1963 clearly says that the amended provision of Article 11 "shall be deemed always to have been so substituted" in place of the original Article 11 of President's C Order No. 13 of 1962. These words clearly make out a case of retrospective operation of the changed law, and therefore the contention that the petitioner had filed a petition within the time allowable by the law as it then existed and therefore his petition does not fall within the mischief of the amended provision, cannot be accepted. A feeble attempt has been made to attack the amended provision on the basis of the equality clause in the Fundamental Rights guaranteed by the Constitution. Right No. 15 provides that all citizens are equal before law and are entitled to equal protection of law. This argument has been based on what has been provided in Article 5 of President's Order No. 1 of 1963. It reads as follows:‑ "Savings‑Notwithstanding the amendments to the said Order made by this Order, an electron petition which has been decided and disposed of by any Tribunal before the commencement of this Order shall be deemed to have been validly decided and disposed of, and no such petition shall revive, nor shall any question relating thereto be raised before any Tribunal, merely by reason of any such amendment," It has been argued that this provision amounts to discrimination amongst persons who filed election petitions alleging corrupt or illegal practice in relation to electron expenses. The law was changed in 1963. Fundamental Rights were introduced by the Constitution (First Amendment) Act, 1963 which was published in the Gazette on the 16th of January 1964, after it was assented to by the President on the 10th January 1964. It is, therefore, difficult to see how the order of the Tribunal dated the 5th April 1963, can be challenged on the basis of the equality clause of the Fundamental Rights. Be that as it may, let us consider whether the change of law really results in discrimination between persons who filed election petitions alleging corrupt or illegal practice in relation to election expenses. An argument as the present was advanced in attacking the provisions of sections 3 and 37 of the East Bengal State Acquisi tion and Tenancy Act, 1950 in the case of Jibendra Kishore Acharya Chowdhury and others v. The Province of East Pakistan and others (P L D 1957 S C (Pak.) 9). The former section empowers the Provincial Govern ment to pick up for expropriation any rent‑receiver that it likes and the latter provides that different rates of compensation will be payable for rent‑receivers with different amounts of net income. It was, therefore, contended that as these sections permitted discrimination they were void in view of the Articles 4 and 5 of the late Constitution. In repelling the contention Munir, C. J., observed as follows:‑ "Whatever else the expression "equal protection of law" ma mean it certainly does not mean equality of operation o legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which intended to the emancipated negroes equal rights to the enjoyment of life, liberty and property. Though in the United States, the guarantee of equal protection of the laws has been invoked upon more occasions than any other constitutional guarantee, with the possible exception of the "due process of law" guarantee, also contained in the Fourteenth Amendment, no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the "equal protection of the laws" that will embrace every case and the application of the principle has always depended on the facts of each case as it came before the Court. But notwithstanding the disinclination of the Court to 'give an all‑inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes, in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization, more frequently stated, is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine, provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Court, in such cases, it is said, to den land from the Legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act, it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such as differences in race, colour or religion, will certainly be rejected by the Courts". Applying the tests laid down in the above observations by the' learned Chief Justice we are unable to agree that tile provisions of Article 5 of the President's Order No. 1 of 1963 can be said to have Lack discrimination without any 'oasis or that the differentiation, made between cases which lead already been decided and case which remained pending on the date of change of law was made, was either arbitrary or even unreasonable. Regard being had to these facts, we are unable to accept this contention also. These are the points which have been argued in support of the Rule, and as we have found no substance in any of them the Rule is discharged, but we direct the parties to bear their own costs. A. M. SAYEM, J.‑I agree. K. B. A. Rule discharged.