P L D 1967 Lahore 49 (PLP)

ANWARUI, HAQ, J.‑The petitioner, Rahim Bakhsh, was elected as a member of the Electoral College of Pakistan from Unit No. 249 in the Multan District. On the 3rd of April 1966, he was informed by a friend that a notification had appeared in the Gazette of West Pakistan, dated the 15th of March 1966, that the petitioner had resigned his membership of the Electoral College, and consequently his seat had fallen vacant. This information came as a surprise to the petitioner and he made further enquiries and representations to various authorities, namely, the Chief Election Commissioner, the Provincial Election Authority, the Controlling Authority and the Divisional Commissioner, etc., but nothing was done by any of these authorities to cancel the notification by which his seat had been declared vacant.

2. On behalf of the petitioner, two main contentions have been raised before us : (a) That the alleged letter of resignation dated the 28th of February 1966 is a forgery as the petitioner never resigned his membership of the Electoral College, and there was no question of his feeling or thinking that this membership will in any way interfere with the conduct of his private business; and (b) That in any case, the alleged letter of resignation did not fulfil the requirements of section 56 of the Electoral College Act, 1964, and could not, therefore, take legal effect.

3. The first contention raised by Pir Rafi‑ud‑Din, the learned counsel for the petitioner would necessitate an investigation into facts. We consider that it is not necessary for us to embark upon that investigation as the matter can be decided on the basis of the second contention which. finds support from the decision of their Lordships of the Supreme Court in the case of A. K. Fazal‑ul‑Qadir Chaudhri v. Syed Shah Nawaz and others (PLD1966SC105). Dealing with the question whether a letter of resignation addressed to the President of Pakistan could be regarded as complying with the requirements of clause (a) of Article 107 of the Constitution which provides that the seat of a member of an Assembly shall become vacant if he resigns his seat by notice in writing under his hand addressed to the Speaker of the Assembly, their Lordships observed as under: "The letter that the respondent wrote in the present case is not, in terms, covered by clause (a) of Article

107. It was undoubtedly written by the respondent in person, but it was not addressed to the Speaker of the Assembly but to the President. It contained no request that the letter may be passed on to the Speaker. .On the contrary, it expressly requested the President to accept his resignation. It is, therefore, difficult to sustain the argument raised by Dr. Nasim Hasan Shah, on behalf of the appellant, that there was substantial compliance with this provision of the Constitution. It is hardly possible to spell out an intention from the wording of the letter itself that it was to be passed on to the Speaker of the Assembly. We are dealing in this case with the action of a Member of an Assembly divesting himself of his status as such Member, by voluntary and unilateral action. All the formalities prescribed by clause, (a) of Article 107 should be fulfilled before the grave result of vacation of a Member's seat should follow such action. The respondent's position, therefore, that this was riot a letter of resignation falling within the purview of this provision, apparently rests on a solid foundation."

4. Now, in the present case, the relevant provision of law is section 56 of the Electoral College Act, 1964, subsection (1) whereof provides that: "A member of the Electoral College may by notice in writing under his hand addressed to the Commissioner resign his membership and thereupon shall cease to be such member." In accordance with the definition given in clause (3) of section 2 of the Act, Commissioner means the Chief Election Commissioner appointed under Article 147 of the Constitution. The letter of resignation which is attributed to the petitioner is addressed 'to the Controlling Authority of the Multan District, and it does not contain any request that it should be passed on to the Chief Election Commissioner. It is, therefore, clear that the letter of resignation does not comply with the requirements of section 56 of the Act, and could not take effect in accordance with the provisions contained therein.

5. By a notification issued on the 9th of December 19611, the Chief Election Commissioner has delegated his powers in respect of section 56 and some other sections to the Provincial Election Authority, but that delegation also is of no avail in the present case for the reason that the letter of resignation was not addressed to the Provincial Election Authority but merely to the Controlling Authority. In any case, it seems to us that the delegation mentioned in the notification of the 9th of December 1964, in fact refers to subsection (2) of section 56 of the Act, whereby the Provincial Election Authority is empowered to take action to declare the seat vacant where a member has resigned his membership, but the resignation must still be in accordance with the provisions of subsection (1) of section 56 which delivered to the Chief Election Commissioner.

6. For the foregoing reasons, we have no hesitation in holding that the letter of resignation, even if it be assumed to have been written by the petitioner, does not fulfil the requirements of subsection (1) of section 56 of the Electoral College Act of 1964, inasmuch as it was addressed merely to the Controlling Authority, and not to the Chief Election Commissioner. As a result the Chief Election Commissioner or the Provincial Election Authority could not give effect to it, by declaring the seat vacant under subsection (2) of section 56 of the Act. On this view of the matter, the notification issued by the Provincial Election Authority on the 15th of March 1966 is declared to be without lawful authority and of no legal effect. Any subsequent notification issued by the Provincial Election Authority for holding election from this electoral unit automatically falls to the ground, as the petitioner continues to be the duly elected member of the Electoral College of Pakistan from the Electoral unit concerned. The petition is accordingly accepted, but ‑ the parties are left to bear their own costs. K. M. A. Petition accepted.