P L D 1966 Dacca 41 (PLP)

It is true the Tribunal can make any order as it thinks fit but that order must be on a ground which may be agitated before it under the law. Precisely, therefore, the point raised is as to whether the Tribunal can go into the question of age of an elected candidate in disposing of an "election petition". We have failed to find out any provision either in the Act or in the Rules that a candidate shall have to be of the age of ‑25 years. The requirement of the Constitution, however, will supervene all other legislative provisions and must in all circumstances be enforced. Regarding the qualification of age, all steps are to be taken at the different stages of the preparation of electoral roll. Provision has been made regarding disqualification on other grounds. Section 53 of the Act, sets out a number of disqualifications for "being or being elected" as a member and section 54 provides a machinery other than the Tribunal to deal with them. Section 53 does not, however; mention the disqualification on the ground of being less than 25 years of age. It appears that no provision has been made for enforcing qualification of age. It will, however, be noticed that other qualifications have been left to the care of "the Chief Election Commissioner". It will therefore be seen that when a person is disqualified from "being elected" on those grounds the matter does not go to the Election Tribunal obviously for the reason that Election Tribunal is concerned with election. Had it been the intention of the Legislature that the disqualification on the ground of age should go to the Election Tribunal, it would have also burdened it with examination of disqualification on other grounds as set out in section 53 of the Act. Omission to make any mention of disqualification on the ground of age is probably due to the elaborate provision relating to the entries in the electoral roll. Sufficient remedies having been made available for correction of the electoral roll, the age as shown‑in the same appears to have been taken as the conclusive evidence of age of a candidate and it is not contemplated in the Act that it should be reopened. According to entry in the electoral roll, the constitutional requirement has been fulfilled. So, the question of disobedience to a command of the Constitution does not arise. Suffice it to say for that purpose the Election Tribunal has not been saddled with the responsibility of examining once again the question of age. We are of opinion that it has to proceed on the basis of the electoral roll. In this connection we have tried to find out the grounds on which the election can be challenged. Section 58 of the Act which makes provision for election petitions is in the following terms: "Election Petition.‑(1) No election shall be called in question except by an election petition under subsection (2). (2) Any candidate may make an election petition challenging the election at which he was a candidate. (3) An election petition in respect of an election from an electoral unit shall be presented in such manner as may be prescribed, to the Election Tribunal appointed under section 59." Material part of rule 36 is as follows: "Trial of Petition.‑On receipt of an election petition, the Tribunal shall give at least a week's notice to all the respondents named in the petition and after holding a summary enquiry record its findings: Provided that an election petition may be withdrawn by a petitioner at any time during the course of the trial: Provided further that an election petition shall abate on the death of the petitioner; (1A) The Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules." Rule 36 (1A) is very important. In effect it sets out the grounds on which the election of a returned candidate or the election as a whole can be declared void, but it makes no mention regarding qualification of a candidate as has been done in the statute relating to National and Provincial Assemblies elections. Moreover, rule 36 (1A) provides that a Tribunal shall declare the election of a candidate to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with or the contravention of "any provision of Act of these Rules". Procedure laid down in regard to the preparation of an electoral roll has been followed, but it is claimed that in fact there has been a mistake in an entry. We have already seen that there are sufficient remedies available in the Act for correcting the errors. If no challenge is made to these entries at an appropriate stage, in the eye of law, there is no mistake or error in the entry. It will have to be remembered that this electoral roll is prepared on the basis of adult franchise and in the case of such a roll, a finality has to be drawn at some stage. We have, however, approached this question with considerable anxiety, regard being had to the clear provisions of Article 1580) of the Constitution. In order to find out the intention of the Legislature in this behalf, we have examined the relevant provisions of the National and Provincial Assemblies (Elections) Act, 1964 (VII of 1964). This Act and the Rules framed thereunder provide for conduct of elections to the National and Provincial Assemblies and matter connected therewith and incidental thereto. Here also various stages have been set out for the publication of the electoral roll, nomination of candidates and holding of the elections and thereafter it also provides for ad Election Tribunal and the grounds on which an election can be declared void. Here also it will be seen that section 14 is analogous to section 23 of the Electoral College Act with which we are concerned. In this Act also the Returning Officer is prohibited from enquiring into the correctness or validity of any entry in the electoral roll. The Legislature, however, thought that the qualification of a person to be a member of the National and the Provincial Assemblies should come within the scope of enquiry of the Tribunal. It, therefore, made specific provision in section 72 of the National and Provincial Assemblies (Election) Act as set out below:‑

"(72) Grounds for, decision.‑(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that (a) ‑ the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected to the seat in question; or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of the candidate or his election agent; The rest of the provisions of section 72 of the National and Provincial Assemblies (Elections) Act, 1964 is not necessary to be quoted. We find that in the Act with which we are concerned, there is no provision anywhere that a Tribunal can go into the question of qualification of a candidate to be member of the electoral college. We are unable to accept Mr. Mozammel Huq's contention that the Tribunal should be considered to have by implication the power of setting aside an election on this ground as well. We are, however, of opinion that if the same result could be achieved even in the absence of a specific provision such as clause (b) of subsection (1) of section 72, there would be no need for the same in the said section

72. In this connection we may also refer to the Representation of the People Act, 1957. This Act was passed by the National Assembly in 1957 for the same purpose for which the National and Provincial Assemblies (Elections) Act, 1964 has now been passed after its repeal. The Act of 1957 made similar provision in section 75, material part of which is set out below: "

75. Grounds for declaring election void.‑The Tribunal shall declare an election to be void if it is satisfied that‑

(a)

(b)

(c) On the nomination day the returned candidate was no qualified for, or was disqualified from, being elected for the constituency; or . . . . . ." It will, therefore, be seen that the Representation of the People Act also gave jurisdiction to the Tribunal to declare an election to the National and Provincial Assemblies on this ground. To accept the argument of Mr. Huq we are to hold that the clear provisions of section 72 of the National and Provincial Assemblies (Elections) Act, 1964 and section 75 of the Representation of the People Act, were unnecessary, for, the desired result could be achieved without these provisions. The case of Jagadananda Roy v. Rabindra Nath Sikdar and others was cited on behalf of the respondent No. 2 in support of the contention that Election Tribunal can go into the question of the age of a returned candidate. That was a decision of the Calcutta High Court. In that case election of a person to Legislative Assembly of West Bengal was declared void as he was below 25 years of age. But that was a case based on section 100 of the Representation of the People Act, 1951, material part of which is as follows:‑‑

"

100. Grounds for declaring election to be void.‑( 62 C W N 336) Subject to the provisions of subsection (2), if the Tribunal is of opinion‑

, (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act; or (b)

(c)

(d)

the Tribunal shall declare the election of the returned candidate to be void." That is an Indian Act. The Indian Legislature also, therefore, felt that a specific provision was necessary to confer jurisdiction on the Tribunal to enable it to examine if a successful candidate possesses requisite minimum age of qualification required under the Constitution and the Act. It seems to us that the cited case supports the contention of the petitioner in the case before us that if the Legislature intended that the Tribunal should examine this question a specific provision would have been made. It will therefore be seen that Legislatures of Pakistan and India felt that such a provision was necessary to enable a Tribunal to set aside an election on this ground. It would be interesting to note here that the Indian Act when it first came into existence did not contain the present clause (a) of subsection (1) of section

100. The said section was later amended and the said clause (a) was inserted to enable the Tribunal to go into this question. In that case therefore, no question of jurisdiction of the Tribunal was raised as the case proceeded on the basis of the law as it stood after amendment. On a comparison of the relevant provisions referred to above,' we are confirmed in our opinion that the Tribunal in this case under the Electoral College Act has no jurisdiction to declare an election void on the ground that the returned candidate did not have the requisite age qualification on the date, of nomination. Had' the Legislature intended to confer such a power there was nothing, to prevent it from making a clear provision as has been done in the above Acts governing the similar situations. We are therefore, of opinion that the contention of Mr. Islam, learned counsel for the petitioner, is of substance and the Election Tribunal acted without jurisdiction in deciding the question of age of the petitioner disregarding the relevant entry on the electoral roll and on this ground alone the impugned order must be set aside. We have not been unmindful of the provisions of Article 158 (1) of the Constitution which is as follows:‑

"(1) The persons enrolled on the electoral roll for an electoral unit shall, in accordance with law, from time to time elect from amongst themselves a person who is not less than twenty‑five years of age, who shall be known as the Elector for that unit." This is a clear mandate of the Constitution that a person who is less than 25 years of age cannot be a member of the Electoral College. But in the case of the petitioner, the electoral roll shows that he is 27 years. We have merely reached the conclusion that the Election Tribunal is not the forum for the enforcement of the constitutional mandate. There was sufficient opportunity fox the petitioner under the Act to move the appropriate authorities as referred to above for correction of age if it could be established that there was, in fact, a mistake in the relevant entry. It is not necessary for us to examine if there is any other remedy available under the law. It is sufficient for the disposal of this petition to say that this Tribunal bad no jurisdiction to go into this question. On a reference to the National and Provincial Assemblies (Elections) Act, we find that the Tribunal formed thereunder has been treated by the Legislature on an altogether different level and has been given power to go into all relevant questions relating to elections to the said Assemblies but the Tribunal under the Electoral College Act exercises limited jurisdiction. This must be so. The Tribunal under the Electoral College Act as provided in rule 36 is to hold a summary enquiry, whereas the Tribunal for the Assembly elections must hold regular and elaborate trial and complete and adequate provisions have been made in this behalf. Next point raised by Mr. Islam is that there was no allegation in the petition filed by the respondent No. 2 before the Election Tribunal claiming that the petitioner Ahsan Mondal was disquali fied on the ground of age. The petitioner has made a categorical statement to that effect in paragraph 5 of the petition. In answer to that respondent No. 2 has stated as follows:‑ "That the statements made in paragraph 5 of the petition are absolutely false and baseless. That the deponent asserts that in the petition filed under section 58 of the Electoral College Act, 1964, it was included in paragraph 13A of the petition that the petitioner is disqualified due to the fact that he is under the age of 25 years." The paragraph quoted above, to say the least, is inaccurate and it indicates deliberate suppression of fact. In the said paragraph 5, respondent No. 2 has nowhere said that he filed another petition seeking amendment of the first petition. Respondent No. 2 has merely said: "It was included in paragraph 13A of the petition." The expression "the petition" indicates same petition and it would, therefore, be understood as the petition that was originally filed. We called for, the record and on examination of the same, we find that the original petition was filed on 8‑12‑64 and there is no paragraph in the said petition numbering as 13A. There is no mention in the affidavit‑in- opposition about any petition for amendment. While examining the record we have, however, found that there is a petition for amendment which does not bear any seal of the Election Tribunal nor any Court‑fee is affixed to the same. It, however, bears an order to the effect "issue notice to opposite‑party" signature being illegible. We have not found copy of any notice of this petition in the record, nor the learned lawyers appearing for respondent No. 2 have been able to point out any. We have found in the record copies of other notices served on the petitioner Ahsan Ali. It, therefore, indicates that if any notice of this petition for amendment would have been served a copy of the same would have been on the record. The petition for amendment merely bears direction for issuing a notice. We are left to guess as to whether or not any notice was actually issued or served or whether there was hearing about the amendment or whether there was any order or permission to ‑ amend the original petition. In the absence of anything in the record, we accept the statement made by the petitioner that no notice was served nor any amendment was ordered by the Election Tribunal. We have also seen the impugned order of Election Tribunal in original in the record. In that order the Tribunal in setting out the facts of the case has stated "It was pointed out to me that the opposite‑party No. 1 Ahsan Ali who has been declared elected was not of the age to contest the election." The expression "it was pointed out to me" appears to have been written after scoring through "It was stated". There being no statement in the petition it was probably realised that it would not be correct to say that "it was stated". We are therefore satisfied that the question of age was not in the original election petition and that there was a petition for amendment which was never disposed of and nor brought to the notice of the petitioner and as such on this ground also the order of the Tribunal must be set aside. Next point urged by Mr. Islam is that this petition is barred by limitation. The petition for amendment was filed beyond the period of limitation as laid down in sub‑rule (1) of rule 35 of the Rules which is as follows:‑

"(1) An Election petition shall be presented within thirty days next after the publication of the result under subsection (2) of section 46 by the Returning Officer in the official Gazette." The Legislature has clearly laid down that an election petition must be presented within 30 days from the date of the publication of the result in the official Gazette. This limitation is absolute in terms and no petition filed after that period can be entertained. In this case the result of election of Ahsan Ali Mondal was published in the Dacca Gazette Extraordinary on the 11th November 1964, and the petition for amendment was filed on the 22nd January 1965. It was therefore filed after the period of limitation. The allegations made in the petition for amendment were new and they changed the nature and character of the original petition. It is therefore to be deemed as new petition. Mr. Latifur Rahman concedes that the petition for amendment was presented after the prescribed period of filing an election petition. We have held that it is a new petition and as it was filed after the prescribed period, it ought to have been dismissed by the Tribunal on this ground as well. We are confirmed in the view that the petition, although purporting to be one. for amendment, is to be treated as a new petition on a reference to the case of Maude and others v. Lowley ((1874) 9 Court of Common Pleas 165). In that case, Keating, J. observed: "Anything which materially adds to the charge, specially if it introduces an additional charge, would constitute not an amendment but a fresh petition." In that case the period of limitation was 21 days. The amendment setting out the new charge was made after 21 days. It was held that this was not amendment but a new petition and as such the new petition must be held to be barred by statutory period of limitation. This was also clearly observed by Honyman, J. in that case in the following terms:‑

"After the expiration of the twenty‑one days, the petitioners seek to add a new charge, viz., the employment as paid canvassers of persons who are on the register of burgesses for other wards in the borough. I think that cannot be allowed. To the same effect is the decision in. the case of Clark and others v. Wallond (52LJR(1883)QBD321). In that case Grave, J. observed as follows: "All that I decide is, that where an alteration makes the petition substantially a new one, the alteration cannot be made after twenty‑one days from the day on which the election was held." For the reasons stated above, we make the Rule absolute, with costs which is assessed at 10 (Ten) Gold Mohors against the contesting respondent No. 2 and set aside the impugned order made by the Election Tribunal and declare the same as void and of no legal effect. A. M. SAYEM, J.‑I agree. S. A. H./S.Q. Rule made absolute.