P L D 1958 (W (PLP)

"In making the above observations we are not giving any definite interpretation whether the ballot papers objected to ought to be rejected or the Election ought to be invalidated. This is a question of law which should be referred for expert legal opinion." After receiving this report, the Vice‑Chancellor referred the matter to the Chancellor on the 27th of November 1957. The reason for making this reference, in the words of the Vice -Chancellor, are as follows :‑ "I found that there was a dispute in respect of the elec tions as a whole and therefore I referred the matter to the Chancellor for his final decision." (Para. 9 of the Counter affidavit). And‑"I found that there is a dispute and therefore referred the matter to the Chancellor in accordance with the provisions of Ordinance VIL" (Para. 10 of the Counter affidavit). The reference was made by a letter signed by the Registrar from which it appears that the following documents only were forwarded to the Chancellor :‑ "

1. Report of the committee appointed by the Syndicate for scrutiny and counting of the votes.

2. Notice from S. Nurul Hasan, Advocate on behalf of his client Mr. Mukhtar Ali Naqvi and a copy of Vice‑Chancellor's order.

3. Report of the Committee appointed to examine the allegation made by the lawyer.

4. Report of the Registrar to Vice‑Chancellor." The decision of the Chancellor was communicated to the Registrar by the Assistant Secretary to the President by his letter dated the 14th of December 1957. It is as follows:‑ "Your letter No. RUK/57, dated 27‑11‑57 regarding elec tion that was held on 23‑11‑57 in respect of constituency of Registered Graduates was placed before the Chancellor as required under section 39 of the University of Karachi Act. The Chancellor has been pleased to declare this election as invalid." The petitioner has challenged the procedure adopted by the Vice‑Chancellor on the ground that according to Ordinance VII, Chapter X of the Ordinances and Regulations of the University of Karachi the Vice‑Chancellor could not withhold the declaration of the result of the election and was bound to announce the names of the successful candidates. If a dispute had arisen, then it could not be referred to a committee, and could only be referred to the Chancellor under S, 39 of the University of Karachi Act, 1950. The motive of the Vice -Chancellor has been questioned by him on the allegation that he unauthorisedly withheld the declaration of the result of the election and proceeded to call a meeting of Senators and included in the agenda two items of purely personal interest, namely, the expenditure of Rs.40,000 to furnish his residence, and the increase of the rent of his residence from Rs. 4,800 per year to Rs. 13,800 per year. Various consequences of the failure to announce the result of the election, which are alleged to be illegal, have been mentioned by the petitioner in his petition. The decision of the Chancellor is questioned on the ground that reference to him by the Vice‑Chancellor was illegal, and that the order on it was made without giving the petitioner an opportunity to be heard against the objections. In support of the contention that the Vice‑Chancellor could not withhold the declaration of the result of the election and that he could not refer the dispute to the committee, the learned counsel of the petitioner has relied on the last portion of Ordinance VII, Chapter X of the Ordinances and Regulations of the University of Karachi and on S. 39 of the University of Karachi Act, 1950. The provisions of Ordinance VII on which the counsel has relied are as follows :‑ Ordinance VII‑ " After scrutiny and counting of the votes the committee shall report the result to the Vice‑Chancellor who shall declare the names of the successful candidates. In case of any dispute the matter shall be referred to the Chancellor under section 39 of the Act, whose decision thereon shall be final." S. 30 is as follows :‑ "If any question arises whether any person has been duly elected or appointed as, or is entitled to be a member of any authority or other body of the University the matter shall be referred to the Chancellor, whose decision thereon shall be final." He has contended that according to the language of Ordinance VII it was incumbent on the Vice‑Chancellor to declare the names of the successful candidates on receipt of the report of the result of the election from the committee, and that according to the language of S. 39 a question which could be referred to the Chancellor could only be whether for one reason or another a person "has been duly elected" or not. In other words his contention is that the words "has been duly elected" which occur in the section, make it clear that no dispute can be referred to the Chancellor, unless it can be said to involve a question as to whether the election of any person has been duly held or not. The counsel of respondent No. 1 has argued in reply that the last sentence of Ordinance VII governs all the previous provisions of that Ordinance, and as such the duty of declaring the names of the successful candidates is made subject to the existence of a dispute. If a dispute is raised, then it is to be referred to the Chancellor for his decision, and the names of the successful candidates need not be declared. It was pointed out to the counsel that reference can be made to the Chancellor only under S. 39 of the Act, and S. 39 contains the words "whether any person has been duly elected" which show that this section cannot be invoked unless the election is complete. The counsel of respondent No. 1 tried to meet this argument by saying that the words "under S. 39 of the Act" which occur in the last sentence of Ordinance VII are redundant; and that a dispute can be referred to the Chancellor independently of S. 39 of the University Act. We pointed out to him that his contention, apart from being inconsistent with some of the well known canons of the interpretation of Statutes, is in conflict of the clear wording of the provision. He replied that the words "has been duly elected" which occur in S. 39 do not limit the multifarious nature of the questions which can be referred to the Chancellor under S. 39 and explained that another category of questions which can be referred to the Chancellor may relate to the qualifications of candidate because in terms of the section any question as to whether a person is entitled `to be a member of any authority' is referable to the Chancellor. This is correct to the extent that when a dispute is raised regarding the qualification of a candidate, it may be referred to the Chancellor before the declaration for the result of the election. This, however, is a separate question. One can understand that when there is a dispute as to whether a person can at all stand for an election, it should be referable for decision without waiting for the election, to take place. At what stage such an objection can be raised and how it is to be dealt with, is not in dispute before us, and we need not express an opinion with regard to it. The disputes which were raised and were referred to the Chancellor related to irregu larities committed in the election and to the alleged malpractice of securing votes by `temptation.' These objections have nothing to do with the qualifications of the candidates and are governed by the first provision of S. 39 in which the nature of the questions which can be referred to the Chancellor are limited A by the words whether any person has been duly elected. Such questions could not be referred to the Chancellor so long as the election is not completed by the declaration of the names of the successful candidates. It could not be questioned and has not been questioned before us, that an election is not complete without such declaration. The result of this finding is that the reference of the dispute to the Chancellor was illegal. We have, however, to take note of the argument that the Vice‑Chancellor has no power either to withhold the result of an election or to refer disputes to a committee. The five members of the Committee named by him in his order dated the 25th of November 1957 happened to be the same as were appointed by the Syndicate for scrutinising and counting the votes. : The committee which was appointed by the Syndicate completed its assignment when it reported the result to the Vice‑Chancellor in terms of Ordinance VII, and became defunct. It is possible that the Vice‑Chancellor realised this and therefore nominated another committee of five persons by name. There is no reference in his order of the 25th of November 1957 to the committee which was appointed by the Syndicate by resolution No. 3 dated the 18th of September 1957. It is obvious that irrespective of the disputed interpretation of Ordinance VII and S. 39, the Vice‑Chancellor could not refer the disputes to a committee whether appointed by the Syndicate] B under Ordinance VII, or one appointed by himself. The explanation of the Vice‑Chancellor himself in support of his action, as given in para 9 of his counter‑affidavit, discloses the process of reasoning which led him to take the action. He says :‑ "I therefore in accordance with Ordinance VII, Chapter X referred the matter to the committee of scrutiny, who after satisfying themselves, submitted their report. I found that there was a dispute in respect of the election as a whole and therefore I referred the matter to the Chancellor for his final decision." In para 17 of his counter‑affidavit he says :‑ "The scrutiny committee has to decide all questions and has to give reports in respect of irregularities in the pro ceedings." These explanations are significant because his order of the 25th of November 1957, shows to the contrary that he did not refer the disputes to the committee of scrutiny and secondly because it appears from these explanations that he would not have referred the disputes to the Chancellor if they did not appear to him to affect the "election as a whole." We were for a time during the arguments inclined to take the view that the illegality found in the reference of the disputes to the Chancellor being a mere technical breach of the provisions of law, and not likely to harm the interests of the candidates could be ignored and that we could pass on to the consideration of the validity of the Chancellor's order independently of it, but the counsel of the Vice‑Chancellor informed us during his address that the view which prevails with him is that a declaration of the names of successful candidates need not be made even if the order of the Chancellor is quashed. We informed him immediately that we did not in the slightest degree "see any justification for the failure of the Vice‑Chancellor to declare the names of the successful candidates in terms of Ordinance VII read with S. 39 of the University Act. Moreover, we have been by the writ petition and the petitioner's counsel, apprised of the serious consequences which are following this failure. In this connection we may refer to section 16 of the University Act which provides for the Constitution of the Senate. According to this section, the Senate is to consist of ex‑officio members, life members and `other member.' There are six categories of other members, and tile first of them is graduates of tile University elected by the registered graduates from among themselves. Nobody has yet been declared elected as a member of the Senate from this category. This means that the constitution of the Senate is partly incomplete. The counsel of respondent No. l argued that this defect is cured by S. 42 of the University Act. The section is as follows :‑ "No act or proceeding of any authority or other body of the University shall be invalid merely by reason of the existence of a vacancy or vacancies among its members." This argument of the learned counsel has been relied upon in the counter‑affidavit of the Vice‑Chancellor and direct or indirect references to it are found in paragraphs 12, 13, 18, 20 and

22. We pointed out to the learned counsel that the: words `merely by reason' should not be lost sight of, because an accidental mistake is different from those irregularities or illegalities which arise from an unwillingness to see, find out or do what is legal. Moreover, the existence of a vacancy or vacancies is not the same thing as the complete absence of a constituent part of the Senate. The situation becomes worse when it is observed that the motive is in question. We do not say that we have any doubts with regard to the best motives of the Vice‑Chancellor, nor do we say that the meetings of the Senate, if any which have been held after the date of the report of the scrutiny committee arc invalid, because that question has not been considered by us in this Petition. But the question has been raised indirectly in order to emphasise that the correct interpretation of Ordinance V11 and S. 39 is that the result of the election should be announced in spite of the existence of disputes, so that the constitution of the Senate may not remain incomplete after the election. The counsel of the petitioner has suggested that the reference of the disputes to the Chancellor has been given a colour and background in order to prejudice the mind of the Chancellor. For instance the directive of the Vice‑Chancellor to the Committee contained in his order dated the 25th of November 1957 indicates that unless one was convinced that none of the irregularities mentioned in the representation had taken place, one had to take an adverse view of the election. This is not necessarily correct because invalid ballot papers could be rejected, and the result could be based on valid ballot papers. The Committee did not hold any ballot papers to be invalid on account of the alleged irregularities, and stopped at the expression of doubt with regard to some of them. Its impression, on account of the direc tive of the Vice‑Chancellor, was that it would itself finally determine the disputes and therefore it did not make its report with the object of its submission to the Chancellor but suggested that legal opinion should be taken. Its report was forwarded to the Chancellor together with the previous report of the Scrutiny Committee, the notice which was received on behalf of Mr. Naqvi and a report of the Registrar to the Vice Chancellor. The letter sent to the Chancellor shows that no other papers were sent to him. An impression was therefore given to the Chancellor that mal‑practices affecting the election as a whole had been com mitted, and that without even looking at the original documents to which the objections related, he could give his decision on the basis of the papers submitted to him. The Chancellor gave his decision and declared the entire election to be invalid. The objections of Mr. Naqvi related to what was allegedly done by the voters and candidates, and their consideration and decision was clearly likely to affect the rights of the successful candidates including the two of them between whom there was a tie. We called upon the counsel of the Chancellor to answer the objection that the order of the Chancellor was open to the criticism that it was made without giving an opportunity of being heard to those whose rights were involved and was thus against to the principles of natural justice. The counsel took an attitude befitting the dignity of the Chancellor and said that he did not have any satisfactory argument to advance for meeting this criticism. He however contended that the Chancellor happened to be the President of Pakistan and, as such, under Article 213 of the Constitution the writ petition was not competent against him. The Article is as follows :‑ "Neither the President nor the Governor of a Province, shall be answerable to any Court for the exercise of powers and performance of duties of his office or for any act done or purported to be done in the exercise of those powers and perfor mance of those duties. Provided that nothing in this Article shall be construed as restricting the right of any person to bring appropriate proceedings against the Federal Government or a Provincial Government." This Article affords protection to the President and the Governors of the Provinces against being answerable to any Court in the exercise of powers and performance of duties of their offices, and for any act done or purported to be done in the exercise of such powers and the performance of such duties. The duties of the Chancellor, he argued, were entrusted to the President under section 8 of the University of Karachi Act, 1950. These duties are not separable from the office of the President, because they are assigned to him by virtue of that office. The duties of the Chancellor, according to the learned counsel, are therefore an extension of the duties of the office of the President. It was pointed out to him that a President was not the Chancellor of the University by virtue of his office inasmush as the office of the Chancellor could be given by section 8 of the University Act to some other dignitary. At best therefore the President is the Chancellor of the University in view of and with reference to the office of the President, but it cannot be said that the duties of the Chancellor of the University G of Karachi are the duties of the office of the President. If these duties were the duties of the office of the President then, under Article 37 of the Constitution the Cabinet of Ministers with the Prime Minister as its head, would be entitled to aid and advise him in the exercise of the functions of the Chancellor. This is inconsistent with the provisions of the University of Karachi Act, 1950. The learned counsel therefore advanced another argument in support of his contention on the basis of clause (3) of Article 211 of the constitution and explained that Parliament had the power to make laws for the Federal Capital, and consists of the President and the National Assembly under Article 43 of the Constitution. Parliament of Pakistan has enacted the University of Karachi Act, which means that the President has himself done so as part of Parliament. If he has himself ordained that the functions of the Chancellor should be discharged otherwise than in terms of clause (1) of Article 37, then there is no inconsistency between the manner in which the functions of the President can be discharged under that Article and the manner in which the functions of the Chancellor can be discharged under the University of Karachi Act. This is no doubt an ingenious argument but not sound. We put to him as to what would be the position of the President if he was appointed by a Statute the Chancellor of say the University of the Punjab. The counsel conceded that the functions of the Chancellor of the University would not be the functions of the President, because the argument (?) of Clause (3) of Article 211 will not apply to that situation. We put to him next what would be the position if by the University of Karachi Act somebody else was made the Chancellor of the University. He conceded that his functions would not be the functions of the office of the President. But this is not consistent with his argu ment on the whole because under Clause (2) of Article 211 of the administration as a whole, inclusive of the subject of Education of the Federal Capital according to the counsel's own argument vests in the President. If the subject of education in the Federal Capital is the President's subject and Parliament undoubtedly includes the President, then according to the contention of the learned counsel, the functions of any Chancellor of the University of Karachi should be the functions of the office of President. In site of the ingenuity of the argument of the learned counsel we have no doubt in our mind that the functions of the Chancellor of the University of Karachi are different from the powers and duties of the office of the President. The result of the above discussion is that the order dated the 14th of December 1957 passed by the Chancellor of the University of Karachi declaring the election to be invalid, is quashed as one made on illegal reference in contravention of the 'D provisions of Ordinance VII of Chapter X of the Ordinances and Regulations of the University of Karachi read with) section 39 of the University of Karachi Act,, 1950 and also as one passed without giving an opportunity to the successful, candidates to be heard against the objections. We direct that the Vice‑Chancellor of the University of Karachi do forth4 with declare the names of the successful candidates in terms of the said Ordinance VII. The disputes may be referred to the Chancellor after such declaration under section 39 of the said Act. The writ petition is accordingly accepted with costs payable by respondent No. 1 only. A. H. Petition accepted.