P L D 1967 Dacca 362 (PLP)

In delivering the judgment in the earlier case reported in P L D 1966 Dacca 604, Murshed, C. J., referred to the decision in Abdul Aziz's case and observed as follows: - "We have read the judgment pronounced by this Court in the said Petition No. 89 of 1965. The ratio decidendi in the aforesaid case, as it appears from the judgment pronounced by Sayem, J., is as follows :‑ `In the instant case there is no finding that the Tribunal was satisfied that the votes cast by personation had actually affected the result of the election and, in fact, there could be no such finding. The Tribunal appears to have declared the election void upon certain extraneous considerations, namely, of equity and fairness that are no considerations that can enter into the trial of an election petition under the Electorate (sic) College Act, as is evident from the rule cited above.' In the above‑mentioned case the impugned order passed by the relevant Election Tribunal is to the following effect: `In the circumstances of the case I find that it was possible that due to personation result of the election has been affected or at least might have been affected. In all fairness, therefore, it is meet and proper that the election be declared void . . .' It would be noted that, in the case referred to above, the Tribunal had declared the election to be void on equitable ground although it did not specifically find that the result of the election was materially affected by two illegal votes. This Court set at naught the order passed by the Tribunal on the ground that the foundation of the jurisdiction of the Tribunal to declare an election to be void was a finding that the result of the election had been materially affected. Sayem, J., further observed that it was not permissible to declare an election to be void on pure equitable grounds which would be extraneous to the requirement of law. In the case before us the Election Tribunal has found that, there was false personation in respect of two votes, namely, a vote which had been cast in the name of a deceased voter and a vote cast in the name of a person who was physically absent from Pakistan when the election was held. The Tribunal, therefore, came to a definite finding that, in view of the narrow difference (namely, a margin of two votes) in the votes polled by the two rival contestants, the result of the election had been materially affected. On such finding the election was declared to be void. In our opinion, the Tribunal had properly exercised its jurisdiction in holding that the casting of two illegal votes by false personation had materially affected the result of the election. There is a fundamental difference between the finding which was recorded by the Tribunal in the case cited before us (Petition No. 89 of 1965 under the Article 98 of the Con stitution) and the finding recorded by the Tribunal in the present case. In the case, under our consideration, there is a finding that the result of the election was materially affected, whereas in the other case (cited before us) there is no such finding. The absence of such a finding is the ratio of the decision in the aforesaid case which need not be discussed any further in respect of other observations made by Sayem, J. Having noticed the point of distinction, we would observe that the said decision must be confined to the fact of that case, namely, the absence of a finding as required by the provisions of Rule 36 (1‑A). We may, however, add, with great respects to the Bench which decided that case, that, in the background of that case, the finding that two votes had been cast by false personation must lead to the irresistible inference that the result of the election was, in fact, materially affected, although no such finding was recorded by the said Tribunal. We may now take leave of that case." The Court further proceeded to observe as follows: "We are clear in our minds that the Tribunal has legitimately found that, in the context of a difference of two votes between the rival candidates, the two votes, which were recorded by false personation, had materially affected the result of the election. The requirement of Rule 36 (1‑A) is a finding that the result of the election has been `materially affected' and not a finding that the successful candidate has been `adversely affected' or `actually affected'. The phraseology of the Rule must be borne in mind." It will be seen that there are certain observations in the judgment pronounced by Sayem, J., which militate against that view. Our attention has been drawn to another decision, that is, the case of Niranjan Kumar Das v. Election Tribunal and Additional Commissioner, Khulna and others (17 D L R 321). In the afore said case there was equality of votes between the successful candidate and his next rival, with the result that the result of the election was decided by lots in accordance with the rules framed in this behalf The election of the successful candidate by such process was challenged by an election petition and it was shown that a few votes were illegally received during that election. The Election Tribunal held that, in view of the reception of illegal votes, it must be held that the result of the election was materially affected and, therefore, the election was set aside because it was impossible to decide for certainty whether a decision by lot was called for. The decision of the Court as given by Salahuddin Ahmad, J., has been faithfully reported in head note of the case (17 D L R 321), which reads as follows: "Mere proof of the fact that there has been impersonation and certain votes have been cast on the election on behalf of persons who were not present on the date of election is not enough to hold that a particular election has been materially affected by the casting of such votes. It is evident that in such a case it is difficult to discover in whose favour these votes were cast without infringing the secrecy provisions of the Electoral College Act, and unless it can be proved that such votes were cast in favour of the successful candidate, it cannot possibly be said that this election has been materially affected by the receipt of such votes." It is clear that in ‑so far as the Abdul Quddus Khondker's case is concerned there was no dissent by the Division Bench presided over by Murhed, C. J., from what was said by A. M. Sayem, J., in the case of Abdul Aziz Kabiraj v. S. A. Chowdhury, Election Tribunal & Additional Deputy Commis sioner, Rajshahi. That case was, however, distinguished from the case under consideration. While considering these cases the present order of reference has been made. At the hearing of this case before the present Bench we had the advantage of hearing full arguments addressed to us and, particularly, the helpful arguments addressed to us by Mr. M. A. Islam who appeared as amicus curiae. The first thing that strikes us is that there is hardly any real conflict in the decisions that have been mentioned in the order of reference made on the 19th of August 1965. The first case mentioned in the order of reference is the case of Nur Muhammad v. Khan Saheb S. M. Solaiman (49 C W N 10). That case called for a con struction of the phrase "materially affected". Mitten, J., in delivering the judgment of the Court referred to the Borough of Hackney's case ((1874) 2 O'Malley & Hardcastle 77) and the case of Woodwardv. Sarsons and Sadler ((1875) L R 10 C P 733). It seems to us that none of these cases is quite relevant for the purpose of the enquiry before us. Then again, there has also been a reference to a decision of the Indian Supreme Court in the case of Yashist Narain Sharma v. Dev Chandra ((1955) S C A 41). This case is also not very material for our purpose, the reason being that in the aforesaid ease the challenge to the election was made on the ground of illegal reception of nomination paper. A different kind of situation arises in such a case. Moreover, the language of the Ballot Act of 1872, which is a statute of Westminster, is different from the one under our consideration. Clause 13 of the Ballot Act of 1872 runs thus: "No election shall be declared invalid by reason of a non compliance with the rules contained in the First Schedule to this Act, or any mistake in the use of the forms in the second Schedule to this Act, if it appears to the Tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in tile body of this Act, and that such non‑compliance or mistake did not affect the result of the election.." In Woodward v. Sarsons and Sadler the scheme of that clause has been fully discussed. It would be noticed that the English statute imposes an embargo upon the Court to declare an election to be void, except under certain exceptional circumstances. The mandate is to preserve the election, except on certain specified grounds. The further mandate of the clause is that if it is found that there has been no breach of the provisions of the Act itself, a mere non‑compliance with the rules set out in the First Schedule to that Act would not vitiate the election and render it void. Therefore the Court was required to investigate as to whether the Act itself has been complied with and, if so, whether there has been any breach of the rules. If the Court comes to a finding that there has been a breach of the rules, as distinguished from a breach of the Act itself, the Court was required to investigate further, whether the result of the election has been affected. It is important to mark the precise language of the statute. The requirement to investigate whether the result of the election has been affected, must, of necessity, mean that the result of the election has been actually affected. We have already quoted the text of Rule 36 (1‑A) of the Electoral College Rules framed under section 86 of the Electoral College Act, 1964. It would be noticed that the mandate of the said rule is to declare the election to be void, as a legal obligation cast upon the Tribunal, if it comes to the conclusion that the result of the election has been materially affected. In the judgment pronounced by Murhed, C. J, in Abdul Quddus Khandker's case a distinction has been drawn between the phrases "materially affected", "adversely affected" and "actually affected." The question which is raised by a situation as unfolded in the present petition before us is a simple one and may be illustrated thus A and B are two contestants to an election in which A receives one hundred votes and B ninety‑eight. B files an election petition and conclusively proves before the Election Tribunal that, in fact, two votes were illegally received during the said election, without any proof (which it is almost impossible to prove in view of the requirement of the law in this behalf) that A was actually the recipient of the said illegal votes. None theless, the fact reniuins that A has affirmatively established that two votes were illegally received. Two possibilities arise in the case mentioned above‑either one or both the illegal votes were cast in favour of B or they may have been given to A. Reception of illegal vote is a question of fact which has been conclusively proved. Furthermore, the background and circumstance of this case, as distinguished from various other kinds of cases which arise before such Tribunal, are also peculiar, namely, that there is a difference of two votes only between the successful and unsuccessful candidate. Now with respect to this difference, namely, two votes, it has already been proved that an equivalent figure, namely, two votes, were illegally received. The Tribunal must, therefore, ask itself a further question: What is the effect of this finding on the result of the election itself? Has it materially "affected" the election (and I distinguish this question from the question which I had posed earlier, namely, has it actually affected the election)? If the Tribunal has to decide whether the result of the election has actually been affected, then there could be no manner of doubt that it was impossible for the Tribunal to hold so because the actual result would be an uncertainty. I now come to the original question: Has the result of the election been materially "affected"? The answer must be, "yes", because the facts and circumstances establish, as a certainty, and not as a matter of speculation and surmise, that an uncertainty has been definitely injected into the result of the election. This uncertainty is a positive fact established by proved facts and the consequence is inescapable, having regard to the language of the rule. In Abdul Quddus Khandker's case this Court has observed thus: "When a Tribunal is driven to the position where it cannot be decided one way or the other as to what could have been the possible result of the election it must be held that the impugned votes had materially affected the election inasmuch as a cul de sac has been reached with regard to the result." We are in agreement with the aforesaid observations for the simple reason that the facts as established by positive evidence lead to a blind ally as to the result of the election. When an uncertainty is imported into the result of an election‑and the uncertainty is imported by the illegality that has been proved, namely, by reception of illegal votes, can it be said that the result of the election has not been "affected" in the sense that it has been rendered uncertain? It has been observed in the judgment quoted above, namely, Abdul Quddus Khandker's case: "When the Tribunal is confronted with a situation which makes it impossible to decide the result of the election, there is no manner of doubt that such a situation materially affects the election. The indecisive nature of the problem has a material and vital effect upon the result of the election in the light of the finding arrived at by the Tribunal." We may respectfully add that the indecisive nature of the situation is a result of the facts proved before the Tribunal and that it is not, in such circumstances, a matter of conjecture. If the rule had teen that a Tribunal shall not declare an election to be void unless it finds that the result of the election has been actually affected, then our answer would have been different from the one we have given above because in such a case it could not be said that the result of the election has been, in fact, affected. Then again, if the requirement was to find, affirmatively, whether the successful candidate would have been "adversely" affected in consequence of the finding arrived at by the Tribunal, the answer would also have been different. If the result of the finding is to make the result of the election unpredictible, the very fact of such uncertainty, must be held to have materially "affected" the election. This appears to be the logic of the situation upon principles that arise out of the require ment of the rule, which applies to the present case. The answer with regard to the first part of the question is, yes". We have, at the present moment, refrained from dealing with the case where the person who filed the election petition was not the candidate who obtained the second highest number of votes in the circumstances adumbrated above. With regard to the second part of the question, we say that the question does, not arise. The relevant rule does not require, in the case with which we are concerned, to investigate as to whether the successful candidate was guilty of the illegality that has been perpetrated, namely, reception of illegal votes. It may be that in the case we have discussed above, it is not proved that the contestant to the election was responsible for the recep tion of the illegal votes. Nonetheless, illegal votes have been received and the result of such reception is that the election has been materially affected in the sense we have indicated above. In the case discussed above, it is the duty of the Court, under the rule quoted above, to pronounce the election to be void. When the inevitable result of what has been proved is to import, also a positive fact, an uncertainty into the result of the election, it must be said that the election has been materially "affected". This disposes of the questions, which have been posed before us. We have already discharged the Rule without any order as to costs. The case is thus disposed of in terms of the order made above. ABU MD. ABDULLA, J.‑I agree. T. TALUKDAR, J.‑I agree. K. B. A. Rule discharged.