P L D 1969 Dacca 741 (PLP)

The amendment made to Article 11 of Order 13 of 1962 by the President's Order No. 1 of 1963 has been made restros pective. The words used for making the amendment retrospective are: ‑ ". . . the following shall be substituted, and shall be deemed always to have been so substituted." In the present case the amendment having been made beyond the period prescribed by Article 11, as amended by President's Order No. 1 of 1963, as is evident from the date of amendment, i.e. 26‑9‑62, Mr. Hamidul Huq Chowdhury contended that in terms of clause (3) of Article 21 of President's Order No. 13 of 1962 as amended by Article 4 of President's Order No. 1 of 1963 the Tribunal had no option but to dismiss the election petition for non compliance of the provision of Article 11 in respect of the date for filing of the amendment. Clause (3) of Article 21 of President's Order No. 13 of 1962 prior to amendment reads as follows: ‑ "(3) An election petition may be dismissed by the Tribunal if any provision of Article 12 or 13 has not been complied with." The said provision as it stands after amendment by President's Order No. 1 of 1963 reads as follows :‑ "(3) An election petition shall be dismissed by the Tribunal if any provision of Articles 9 to 14 has not been complied with, notwithstanding that it has not been dismissed by the Commission under Article 15." This amendment also has been made retrospective in the same terms as the amendment of Article 11 mentioned above. Paragraph 4 (a) of the original election petition runs thus: "(4) That the respondent No. 1 Mr. Mahbubul Huq procured one M. A. Bari and other un‑named and unautho rised persons to incur unauthorised expenses in contravention of Article 52 of the National and Provincial Assemblies (First Elections) Order, 1962 (President's Order No. 4 of 1962) by issuing advertisements, circulars, and publications presenting to the electors Mr. Mahbubul Huq and his views with the intention of promoting or procuring the election of the respondent No.

1. The said publications have been made at the expense incurred by the respondent No. 1 himself or his Election Agent or a person authorised by the Election Agent and the petitioner has reasons to believe that the said expenses have not been validly incurred and shown in the return of his election expenses. A photostat copy of the printed leaflet entitled : ( . . . .)"* (introduc tion of Mahbubul Huq for election to the seat of the National Assembly from Comilla‑cum‑Noakhali Constituency) published by one Mr. M. A. Bari of Feni from Gulistan Press, Feni and another photostat copy of the same or similar leaflet published by art unnamed person from the same Gulistan Press, Feni, and a photostat copy of the leaflet entitled: ( . . . .)* (why should you vote for Jonab Mahbubul Huq) and a photostat copy of the periodical "Weekly Pallibarta, printed, published and edited by the respondent No. 1, who published the aforesaid "why" circular of the said M. A. Bari of Feni in its issue dated the 17th April 1962, and circulated to the electors between the 17th April 1962 to 28th April 1962 and a poster are filed herewith and marked as Annexures A, B, C, D and E, respectively. In fact and in truth the respondent No. 1 is the author of all the aforesaid publications though some of them were shown as subscribed by other persons. The publications were distributed widely by the men and agents of the respondent No. I at the cost of the said respondent." By amendment of 26‑1‑ 62 the respondent No. 3 wanted to add a paragraph to para. 4 (a) of the original petition to be numbered as paragraph 4 (a) (1) which runs in the following terms: ‑ "That respondent No. 1 Mr. Mahbubul Huq with a view to illegally promoting or procuring his election incurred expenses on account of issuing or causing to be issued an Advertisement or circular or publication covering the full back page of the additional issue of "Weekly Pallibarta", dated 17‑4‑62 under the heading (sic). This advertisement or publi cation was not in way the publication of a matter relating to election in a newspaper or a periodical. The said Weekly Pallibarta is registered as "Reg. No. Da‑308". At least one thousand extra copies of the said Weekly Pallibarta dated 17th April 1962 in addition to the normal issues of the said paper of the said date were printed and issued and distributed to the electors and other persons of the constituency during the election. Such special advertisement or circular or publication and special printing and publication of the said Pillibarta, not being the usual issue of the paper has cost the respondent No. 1 at least Rs. 1,000 (one thousand rupees) calculating on the normal advertisement charges of such newspapers but the said expenses have not been shown in the return of election expenses made by the respondent No.

1. Photostat copy of the said advertise ment is marked as Annexure `I' hereto. The normal issue of the said Weekly Pallibarta dated 17th April 1962, intended to be distributed and sold to the subcribers and customers did not contain the aforesaid special advertise ment under the caption ( . . . . .)* "why should you vote for Jonab Mahbubul Huq for a member of National Assembly from Comilla‑cum‑Noakhali Constituency" in the back page and instead there are photos and some other advertisement materials Photostat copy of the issue Pallibarta is also annexed herewith being marked as Annexure "J". Thus by printing this special advertisement and causing the same to be published in a different (sic) from that of the general issue of the said Weekly Pallibarta to the regular subscribers and customers, the respondent No. 1 incurred additional expenditure of at least Rs. 1,000 (Rupees one thousand only) which expenditure has not been shown by him knowingly an willfully and thus the respondent No. 1 is guilty of illegal and corrupt practices and that the same has affected the result of the election. That this particular should be added after paragraph 4 (a) of the petition as (a) (1)." The petitioner herein objected to the said amendment being made to the election petition. The Tribunal on 6‑12‑62 allowed the amendment sought for by respondent No.

3. The Tribunal in allowing the amendment petition took the view that under clause (4) of Article 21 of President's Order No. 13 of 1962 there was no time limit fixed for allowing an amendment petition by the Tribunal and the Tribunal, in the facts of each case, if felt that for ensuring a fair and effective trial and for determining the real questions at issue an amendment to the petition was necessary, could permit a party to do so. The Tribunal in allowing the amendment petition observed as follows: ‑ "We are, therefore, inclined to think that for a proper determination of the real issues between the parties, unless the newly added particulars appear to be inconsistent with the original pleading of the election petition can be taken into consideration at the time of the trial and the parties might be at liberty to adduce evidence in support of such allegations. Apart from all these, it, however, appears to us that the allegations made in paragraph 3 of the original election petition are sought to be elaborated by means of this application for amendment." From an order of the Tribunal, dated 25‑9‑63, it is found that the petitioner herein. on 18'‑9‑63 filed an application before the Tribunal for reviewing the order of the Tribunal, dated 6‑12‑62 on certain grounds. He (the petitioner herein) also urged that in view of President's Order No. 1 of 1963, the election petition itself should be dismissed for non‑compliance of the provisions of Article 12 of President's Order No. 13 of 1962 which requires particulars of corrupt practices to be included in the election petition or brought in by way of amendment within the period provided for in clause (1) of Article I1 of President's Order No. 13 of 1962, as amended by President's Order No. 1 of 1963. The Tribunal did not reject this application, dated 18‑9‑63, of the petitioner herein, but ordered that the point raised by the petitioner should be dealt with at the time of final disposal of the election petition. The Tribunal in its judgment hits dealt with the point of amendment in the following manner "Moreover, the amendment petition has already been allowed by this Tribunal by the order passed on 6‑12‑62, i.e. before the amendment came into force. As it has been allowed before the amended article came into force, the passing of the amending order with retrospective effect is not a sufficient ground for re‑opening the matter which has already been decided on the basis of the order as it stood before the amendment." The Tribunal then relied on the case reported in A I R 1944 Mad. 238 in support of its view quoted above. The Tribunal, therefore, rejected the plea on the point of amendment raised by the petitioner herein. The facts of the case reported in A I R 1944 Mad. 238, are quite different from the facts of the present case. Apart from that, in the present case the Tribunal did not give a final verdict on the review petition of the petitioner herein asking for a review of the order allowing the amendment to the election petition. The Tribunal certainly had the power to review its order, dated 6‑12‑62, by which it allowed the amendment. However, the point at issue is as to whether by way of amendment the respondent No. 3 was trying to bring in new facts about which he made no mention whatsoever in his original election petition. From a reading of paragraph 4 (a) of the original petition and paragraph 2 (a) of the amending petition, which was sought to be introduced in the original petition as paragraph 4 (a) (1), we feel that no new material was sought to be brought on record by respondent No. 3 by way of the amendment. In that view of the matter, we do not think that the petition become non maintainable in terms of Article 21 of President's Order No. 13 of 1962 amended by President's Order No. 1 of 1963. We have no hesitation to say that had the respondent No. 3 tried C to introduce any such particulars by way of amendment, dated 26‑9‑62, to the original election petition of which no idea could be gathered from the contents of the original election petition, then certainly the petition would be hit by Article 21 of President's Order No. 13 of 1962, as amended by President's Order No. 1 of 1963. When the law is made retrospective with the wordings as used in President's Order No. 1 of 1963, the amended provision shall be deemed to have been incorporated in the original statute or order as if it was always there from the very birth of the statute or the order. Mr. Hamidul Huq Chowdhury next argued that the Tribunal was wholly wrong in holding that Mr. Mahbubul Huq committed an illegal practice under Article 54 of President's Order No. 4 of 1962 as he did not show in the return of election expenses, the expenses relating to the publication of the advertisement in the weekly "Pallibarta" of the, 17th April 1962. The amendment about which we have discussed above, was in relation to this publication in the "Pallibarta." The Tribunal found that the publication in the "Pallibarta" of the 17th April 1962, amounted to an advertisement about the candidature of Mr. Mahbubul Huq and had cost him at least Rs. 240 and he having not shown it in his election expenses, his election expenses were incorrect and therefore it is an illegal practice and his election is hit by Article 54 of President's Order No. 4 of 1962. As such, the Tribunal held this to be one of the points in support of its declaring the election of the petitioner void. Mr. Hamidul Huq Chowdhury has argued with great force that there was no evidence before the Tribunal to hold that any expenses were incurred for the publication in the "Pallibarta" of the 17th April 1962, by Mr. Mahbubul Huq or by his election agent. Mr. Chowdhury has contended that a candidate is allowed to incur an expenditure up to Rs. 2,000 towards his election expenses. In the present case, the election expenses shown by Mr. Hamidul Huq was only Rs. 1,

176. If even as the Tribunal found the publication in the "Pallibarta" of the 17th April 1962, cost Mr. Mahbubul Huq Rs. 240 there was no reason for Mr. Mahbubul Huq not to have added this amount to his election expenses because even by addition of this amount of Rs. 240 he would not have exceeded the limit of his election expenses as prescribed by law. According to Mr. Chowdhury, in fact, there was no expense incurred by the petitioner for the publication. The petitioner was in charge of the Advertisement Section of the Al‑Helal Printing and Publishing Co. Ltd. which owns the paper "Pallibarta" and the questioned publication in the said paper was made free of any charge. As such, there was no expense incurred for this publication and therefore there arose no question for either showing or suppressing the expenses of the said publication. Article 54 of President's Order No. 4 of 1962 is in the following terms: ‑ "Return of election expenses.‑(1) Within fifteen days next following the day on which the result of the election is declared by a Returning Officer under paragraph (a) of clause (i) of Article 18 or paragraph (a) of clause (1) of Article 39, the Election Agent of every contesting candidate and of every candidate who has retired under Article 15 shall submit to the Returning Officer a true return, containing as respects that candidate a statement of all payments made by the Election Agent together with all the bills and receipts. (2) The return shall also contain as respect that candidate (a) a statement of the amount of personal expenses, if any, paid by the candidate ; (b) a statement of all disputed claim, if any, of which the election agent is aware ; (c) a statement of all unpaid claim, if any, of which the Election Agent is aware ; and (d) a statement of all moneys, securities and equivalent of money received by the Election Agent from the candidate or any other person for the purpose of election expenses incurred or to be incurred, with a statement of the name of every person from whom they have been received Provided that where the candidate is his own Election Agent a statement of all moneys, securities and equivalent of money paid by the candidate shall be substituted for the statement of moneys, securities and equivalent of money received by the Election Agent from the candidate. (3) The return submitted under clause (I) shall be supported, if the candidate is his own Election Agent by an affidavit sworn by him, and if he employs an Election Agent by affidavits sworn by the candidate and the Election Agent severally. (4) Whoever contravenes the provisions of this Article shall be guilty of an illegal practice." Clause (2) of Article 54 of President's Order No. 4 of 1962 provides for various types of expenses to be shown in the return of election expenses by a contesting candidate. Sub‑clause (a) of clause (2) of Article 54 of President's Order No. 4 of 1962 requires a statement of the amount of personal expenses incurred by the candidate himself. Sub‑clause (b) requires a statement of all disputed claims, if any, of which the Election Agent is aware. Sub‑clause (c) requires a statement to be filed of all unpaid claims, if any, of which the Election Agent is aware; and sub clause (d) provides that a statement of all moneys, securities and equivalent of money received by the Election Agent from the candi date or any other person for the purposes of election expenses incurred or to be incurred, with a statement of the name of every person from whom they have been received. Mr. Chowdhury has contended that as no payment was made for the publication in the "Pallibarta" of the 17tH April 1962, and as no payment was to be made for this publication to the Pallibarta or to the Al‑Helal Press by the petitioner, as there was no question of any bill remaining unpaid in respect of this publica tion, and as there was no dispute with regard to payment of costs of this publication between the petitioner and the Al‑Helal Press, none of the sub‑clauses of clause (2) or any other provision of Article 54 of President's Order No. 4 of 1962 was attracted to the case. According to him, therefore, the Tribunal was wholly unjustified and wrong in finding that the petitioner was guilty of illegal practice in not showing the expenses in regard to the publication in question. The reasonings of the Tribunal are that in printing the "advertisement" (the Tribunal has chosen to describe the publication in question as advertisement) some paper and ink were spent and, therefore, there was at least some costs incurred for the publication and that should have been shown by the petitioner in his election expenses. In this connection our attention has also been drawn to the provision of Article 52 of President's Order No. 4 of 1962. Article 52 of the said Order runs as follows: ‑ "

52. Prohibition of unauthorized expenses.‑(1) No expenses shall, with a view to promoting or procuring the election of a candidate, be incurred by any person other than the candidate, his Election Agent or persons authorised in writing by the Election Agent, on account of‑ (a) holding public meetings or organizing any public display; or (b) issuing advertisements, banners, circulars or publica tions ; or (c) otherwise presenting to the electors the candidate or his views Provided that paragraph (c) shall not‑ (i) restrict the publication of any matter relating to election in a newspaper or other periodical ; or (ii) apply to any expenses not exceeding in the aggregate the sum of ten rupees incurred by any person which are not incurred in pursuance of a coordinated plan between two or more persons, or to expenses incurred by any person in traveling or in living away from home, or to any other similar personal expense. (2) If any person incurs, or aids, abets, counsels or procures any other person to incur, any expenses in contravention of this article he shall be guilty of a corrupt practice." In the present case, there is no evidence on record to show that the provision of Article 52 is attracted to the facts of this case. In that view of the matter also Mr. Chowdhury said that there was no justification whatsoever for the Tribunal to hold his client guilty of illegal practice on the ground of the publication in the Pallibarta of 17‑4‑

62. Upon a consideration of the law and the facts involved on this point, we have no hesitation to say that the Tribunal was wholly wrong in holding the petitioner guilty of illegal practice under Article 54 of President's Order No. 4 of 1962 on account of the publication in the Pallibarta of the 17th April 1962, and as such its decision in declaring the election void on this point cannot be sustained. The other point on which the Tribunal has declared the election of the petitioner herein void after finding him guilty of corrupt and illegal practice is that he showed certain expenses in the return filed by his agent which, in fact, were his personal expenses and should have been shown under the head of personal expenses of the candidate. The details of these expenses have been considered by the Tribunal in the following terms: ‑ "Attention has also been drawn by Mr. Ahmed Sobhan to vouchers Nos. 30 and

31. Voucher No. 30 shows receipt of Rs. 50 as hire money, pay of the driver and price of petrol of a baby taxi from 24‑4‑62 to 28‑4‑62 from Mr. Mahbubul Huq. It was granted by one Mafizur Rahman. Voucher No. 31 is relating to the receipt of Rs. 40 as hire money of a scooter. It was granted on receipt of the money by one Wali Ahmed Mea in favour of Mr. Mahbubul Huq. Mr. _Sobhan has contended that although these were the personal expenses of Mr. Mahbubul .Huq, these were not shown in the statement of his personal expenses, but that these were shown in the return of election expenses submitted by Mulkuter Rahman, the Election Agent of Mr. Mahbubul Huq. Mr. Sobhan has also referred to the Vouchers Nos. 32 and

33. Voucher No. 32 is in regard to a sum of Rs. 40 received by Mr. Md. Idris (O. P. W. 3) from the Election Agent of Mr. Mahbubul Huq as pay of the driver and hire money of a taxi for use for one week relating to the election. Voucher No. 33 is also by Mr. Idris (O.P.W.3) in favour Election Agent of Mr. Mahbubul Haq. This is relating to the receipt of Rs. 15 as hire money of a house for use of fifteen days as the election office of Mr. Mahbubul Huq. But Mr. Md. Idris deposed that he received these sums from Mr. Mahbubul Huq and that the Election Agent of Mr. Mahbubul Huq was not known to him. Mr. Mahbubul Huq deposed that he made these payments, but he did not state to whom he made the payments. In view of the evidence of Mr. Md. Idris (O. P. W. 3) we are convinced that these amounts were received by him from Mr. Mahbubul Huq. Voucher No. 33 being for rent of a house used as an election office, it cannot be regarded as personal expenses of Mr. Mahbubul Huq. In Halsbury's Laws of England, Third Edition, Volume 14, at page 182 the following obser vation appears: ‑ `It has been doubted whether the hiring of a house for the candidate during an election is a personal expense.' The sums relating to Vouchers Nos. 30, 31 and 32 were personal expenses of Mr. Mahbubul Huq. As these were not shown in the statement of his personal expenses but were shown in the return of election expenses by the agent the statement of his personal expenses as well as the election return were not true, as required under Article 54 of President's Order No. 4 of 1962." We find no mention in the original election petition or in the amendment petition that any reference whatsoever even indirectly has been made by respondent No. 3 Mr. Aminul Islam Chowdhury who filed the election petition in regard to the expenses covered by Vouchers Nos. 30, 31, 32 and 33, or in other words, no case was made out by respondent No. 3 against the petitioner of an illegal practice committed by him in respect of these four items of expenditure. This point of illegal practice was taken up before the tribunal by the learned Advocate for the respondent No. 3, for the first time while the Advocate was arguing the case. The learned Advocate contended that although this point was not there in the election petition, yet when this illegal practice came to the notice of the Tribunal in course of evidence, the Tribunal could take the same into consideration. The Tribunal, relying on the decision in the case of Shri Krishna v. Rajeswar Singh and others (12 E L R I) as referred to in the law of Elections and Election Petitions by H. S. Doabia, Volume II, 3rd Edition, at page 484, observed: "We are of opinion that a corrupt or illegal practice may be taken into consideration, if it comes to the notice of the Tribunal in course of the proceeding from the evidence adduced on the side of the opposite‑party, notwithstanding that it was not set specifically in the petition itself." The Tribunal, therefore, found Mr. Mahbubul Huq guilty under Article 54 of President's Order No. 4 of 1962 on this count also declared his election void. Mr. Hamidul Huq Chowdhury on this point submitted that the Tribunal could not under the existing law take into consideration this point of illegal and/or corrupt practice without the same having been taken specifically in the election petitioner itself by the party challenging the election, and the Tribunal has acted without jurisdiction in doing so. He has further ‑submitted that the expenses covered by Vouchers 30, 31 and 32 are not expenses of personal nature and those are but election expenses and as such have been rightly shown under the heading "Election expenses." The law relating to elections under the present Constitution, as we read them in the various Presidential Orders which govern the elections in this country at the present moment, has made clear specific and unambiguous provisions with regard to the filing ‑of an election petition, the contents thereof, the time within which it is to be filed and also the time limit for amending the election petition. Further it has been provided that for violation of any of the provisions relating to the election petition contained an Articles 9 to 14 under Chapter III of President's Order No. 13 of 1962, the election petition shall be dismissed by the Election Commission as contemplated by Article 15 of the said Order. It has been further provided by way of amendment of Article 21 (3) of President's Order No. 13 of 1962 by Order No. 1 of 1963 that an election petition shall be dismissed by the Tribunal if any provision of Articles 9 to 14 has not been complied with notwithstanding that it has not been dismissed by the Commission under Article

15. Article 12 of President's Order No. 13 of 1962 which deals with the contents of election petition, makes it obligatory on the part of the person who files the election petition to "set forth full particulars of any corrupt or illegal practice or other illegal at alleged by the petitioner, including as full a statement as possible of the names of the persons who :are alleged to have committed such practices or acts and the date and place of the Commission of every such practice or act." From a reading of the provisions under Chapter III of President's Order No. 13 of 1962, we find no provision made for the Tribunal to declare an election void on the ground of an illegal or corrupt practice adopted by the successful candidate of which no mention has been made in terms of Article 12 of the Order in the election petition. The language of Article 12 (1) (b) which we have quoted above, leaves no scope for doubt that the election petition must contain full particulars of all details of such illegal practice. The reasons given by the Tribunal for taking this item of illegal practice, if at all it is an illegal practice, into consideration are that during investigation if upon evidence certain illegal practice is disclosed, the Tribunal can take note of it. From the nature of the expenses covered by Vouchers Nos. 30, 31 and 32 it cannot be said with any amount of certainty that those were personal expenses of the candidate Mr. Mahbubul Huq. From reading of Articles 50, 51 and 53 of President's Order No. 4 of 1962 we find nothing wrong in regard to the payments represented by Vouchers Nos. 30, 31 and 32 toy have been included in the election expenses of the candidate of which the return was submitted by Mulkutur Rahman, his Election Agent.. These expenses, in our opinion, do not represent personal expenses of the candidate. The limit of personal expenses being only Rs. 200 it necessarily contemplates such expenses which the candidate has to incur during election for his food and other personal amenities within a very limited scope other thaw expenses of conveyance of the type as represented by Vouchers. Nos. 30, 31 and

32. Expenses of this nature must necessarily be considered to be election expenses. The point, as we can. see, to which objection has been taken by the Tribunal is that the payments were made by Mr. Mahbubul Huq to the persons who granted the receipts. We find no prohibition in law for Mr. Mahbubul Huq to have made those payments on behalf of his Election Agent, as there is no evidence on record to show that the Election Agent of Mr. Mahbubul Huq did not authorise him to make the payments on his (Agent's) behalf. For this reason also we are of the opinion that the Tribunal was, wrong in holding that the petitioner Mr. Mahbubul Huq was guilty under Article 54 of President's Order No. 4 of 1962. Mr. Hamidul Huq Chowdhury has next contended that the judgment of the Tribunal is also bad in law as the Tribunal did not adjourn the hearing of the case between 11th and 22nd of November 1963, as required under sections 3 and 4 of Ordinance IX of 1963 which provide: ‑ "

3. The Privilege, etc.‑(1) No member shall be detained under any law relating to preventive detention, nor shall any member be required to appear in person in any Civil or Revenue Court, or before any Election Tribunal, during a session, and for a period of fourteen days before and fourteen days after the session. (2) Nothing in subsection (l) shall be construed as applying to any Member detained under any such law as is referred to therein immediately before the commencement of this. Ordinance, or at any time during the period commencing on the fifteenth day next after the conclusion of a session and ending on the fifteenth day before the commencement of the next session.

4. Proceedings in Civil Courts, etc.‑(I) Notwithstanding= anything to the contrary contained in any law for the time being in force, no Civil or Revenue Court, and no Election Tribunal, shall proceed, during a session and for a period of fourteen days before and fourteen days after the session, with any matter before it in which a member is a party, unless the privilege conferred by section 3 is waived, by application. made in writing to the Court or Tribunal, as the case may be, by the Member concerned with the matter, and, where more members than one are so concerned, by all of them. (2) The provisions of subsection (1) shall apply to all matters pending immediately before the commencement of this Ordinance in any Civil or Revenue Court, or before any Election Tribunal, in which a Member is a party, and no such Court or Tribunal shall proceed further with any such matter, unless the privilege referred to therein is waived in accordance with the provisions thereof, or the period specified therein has lapsed." It is true that a positive prohibition has been laid down in the said Ordinance for the hearing of a case in which a Member of the National Assembly or of the Provincial Assembly is a party, unless the privilege conferred by section 3 is waived, by application made in writing to the Court or Tribunal as the case may be by the Members concerned with the matter, and where more Members than one are so concerned, by all of them. The Ordinance was brought to the notice of the Tribunal only on 19‑11‑

63. Since we are allowing the petition on other grounds, we do not propose to deal in details with the effect of a hearing being made during the prohibitive period of which an objection has been taken after the hearing was concluded or the provision of the prohibitive order was not brought to the notice of the Tribunal in time although we feel that there is force in this argument too of Mr. Hamidul Huq Chowdhury. These dispose of the arguments of the learned lawyers for the parties appearing before us. In the result, therefore, we make the Rule in Petition No. 101 of 1964 absolute and it is declared that the impugned order,, dated 6‑2‑64, passed by the Election Tribunal, East Pakistan, in Election Petition No. 8 of 1962 was made without any lawful authority and is of no legal effect. The petitioner Mr. Mahbubul Huq is entitled to costs of this petition (No. 101/64), being, assessed at 20 Gold Mohurs, from respondent No. 3 Mr. Aminul Islam Chowdhury. Petition No. 106 of 1964 was filed by Mr. Aminul Islam Chowdhury (respondent No. 3 in Petition No. 101 of 1964) in which he asked for a declaration as to why the order of the Election Tribunal, dated the 6th of February 1964, not declaring, the petitioner (respondent No. 3 before us in Petition No. 101/64) to have been elected to the National Assembly of Pakistan should not be declared to have been passed without lawful authority and to be of no legal effect and also for a declaration that the petitioner be declared to have been elected to the National Assembly of Pakistan from Constituency No. NE 67 Comilla‑ cum‑Noakhali on the ground of his having secured the next highest vote (130) after the successful candidate Mr. Mahbubul Huq. He also prayed for costs of the application. Upon this application the petitioner Mr. Aminul Islam. Chowdhury (respondent No. 3 in Petition No. 101/64) obtained a Rule nisi on 2‑3‑

64. In view of the fact that the rule issued in Petition No. 101 of 1964 made by Mr. Mahbubul Huq, the successful candidate has been made absolute, we discharge the rule obtained by Mr. Aminul Islam Chowdhury in Petition No. 106!64 for declaring him elected in place of Mr. Mahbubul Huq. We make no order as to costs in this Petition (No. 106 of 1964). SALAHUDDIN AHMED, J.‑I agree. K. B. A. Rule made absolute.