P L D 1965 Supreme Court 157 (PLP)

FAZLE‑AKBAR, J.‑The only question for determination in this appeal by special leave is: Whether the appellant can claim benefit of the Representation of the People (Repeal) Act, 1963 (Act XXIII of 1963). This question arises under the following circumstances. The appellant Sayeedur Rahman was elected as a member of the Provincial Assembly of East Pakistan from Constituency No.

1. P. E. 141, Chittagong‑I. His election was challenged before the Election Tribunal on the ground that he being a Government contractor at the relevant time was disqualified under the Representation of the People Act, 1957 to be a member of the Provincial Assembly. In view of section 116 of the said Act the Election Tribunal up‑held the above objection and passed an order on 7th February 1963, setting aside his election. Thereupon the appellant filed a petition under Article 98 of the Constitution. The High Court relying on the decision of this Court in the case of Badrul Haque Khan v. The Election Tribunal Dacca and others (P L D 1963 S C 704) held that section 116 of the Representation of the People Act, 1957 held the field and therefore, dismissed the petition on 19th November 1963. On 26th November 1963 the appellant filed a petition for special leave to appeal against the order of the High Court. During pendency of the petition, that is, on 23rd December 1963 Representation of the People (Repeal) Act, 1963 was promulgated. Section 2 of the said Act is as follows "(2) Repeal, etc.‑(1) The Representation of the People Act, 1957 (XXXI of 1957), is hereby repealed, and shall be deemed to have been repealed on the twenty‑third day of March 1962. (2) No person shall be deemed to be or to have ever been, disqualified from being elected as, or from being, a member of the National Assembly or a Provincial Assembly under or by reason of any provision of the said Act, and no election of any person to such Assembly shall be called in question in or before any Court, tribunal or other authority on the ground that such person was so disqualified under the said Act at the time when he was so elected. On 17th March 1964 special leave was granted to consider Whether after removal of the bar of disqualification as provided under the Act of 1957 the appellant was entitled to continue as a) member of the Provincial Assembly. Mr. Pal, the learned counsel for the appellant has contended that though the Act of 1963 was not enacted when the High Court decided the case, this Court was competent to take notice of the Legislation which was passed during pendency of the proceedings. In support of his contention he has relied on the decision of this Court in the case of State v. Dosso and another (P L D 1958 S C (Pak.) 533) and of the Federal Court of India in Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaubhuri and others (A I R 1941 F C 5). As there was no representation before us on behalf of the respondents in this case, the Attorney‑General and the Advocate General of East Pakistan at our direction appeared in this case to place the points of view of their respective Governments on the question involved in this case. Both the learned Attorney‑General and the learned Advocate General of East Pakistan have supported the contention of the learned counsel. It should be stated at the outset that though the writ petition was dismissed and leave was granted before enactment of the Representation of the People (Repeal) Act, 1963, on the date of promulgation of that Act, that is, on 23rd December 1963 this appeal was a pending case. The only question that has therefore to be decided is : Whether the appellant can take advantage of the repeal of the Act of 1957 under which he had incurred the disqualification. Subsection (1) of section 2 of the Act of 1963 in clear terms says that the Act of 1957 shall be deemed to have been repealed on the twenty‑third day of March 1962'. This election was held in May 1962, an election petition was filed on 8th June 1962 and the Tribunal passed order setting aside the election of the appellant on the 7th February 1963. We therefore, entertain no doubt that the Act of 1963 i retrospective in the sense that it applies to proceedings pending a the time when the Act came into force. Accordingly it only remain to consider whether this Court in the exercise of its appellate juris diction can substitute for the judgment and order of the High Court a judgment or order in accordance with the law as now exists without discussing the law as it existed at the time when the High Court had seisin of the case. Once an appeal has been admitted against the decree or order of the High Court, the matter becomes sub judice again and thereafter this Court has seisin of the whole case. This Court therefore, can take into account the provisions of the new Act which repealed the Act of 1957 and grant relief accordingly even though the judgment of the High Court had been correct according to law as it then stood. The above view finds support from the decision in The Stat v. Dosso and another which was affirmed in the later decisions of this Court in the Province of East Pakistan v. Muhammad Mehdi Ali Khan and others (P L D 1959 S C(Pak.) 387) and in Election Commissioner, Pakistan v. B Sajjad Ali Khan (P L D 1960 S C 235). Similar view was also adopted in Lachmeshwar Prasad Shuku and others v. Keshwar Lal Chubhuri and others and in Shyamakant Lal v. Rambhajan Singh (A I R 1939 F C 74). It may also be mentioned that in Mukherjee v. Mst. Ram Ratan Kuer (63 I 47) where an Act passed while the appeal was pending deprived the appellant of the right which he had sought to enforce by bringing the appeal and the judicial Committee found no difficulty in dismissing the appeal on that ground. In the present case the writ petition was dismissed on the ground that section 116 of the Representation of the People Act, 1957 was applicable to the case and the Election Tribunal there fore, acted within its power in setting aside the election of the appellant to the Provincial Assembly. As during the pendency o the appeal the Act of 1957 was repealed, we have no alternative but to hold that the bar of disqualification as provided in section 116 of the said Act would not be applicable to this case. In other words the appellant will be entitled to take advantage of the repealing enactment. We therefore, allow this appeal, set aside the order of the High Court and direct that a writ of certiorari should issue to quash the proceedings of Election Tribunal whereby the election of the appellant was set aside. We leave the parties to bear their own costs. A. H. Appeal allowed.