P L D 1966 Dacca 561 (PLP)

A. M. SAYEM, J.‑This Rule is directed against an order of the Election Tribunal, Rajshahi Division, declaring an election to the Electoral College void. In the said election the petitioner and two others namely, respondent No. 2 Rustom Ali and another contested with the result that the petitioner secured 482 votes as against 180 by respondent No. 2 and only 8 by the third candidate. The petitioner, therefore, was declared elected. Before the Tribunal respondent No. 2 Rustom Ali, who filed the election petition, examined six witnesses in support of his allegations. On a consideration of the evidence before it the Tribunal found that there might have been two cases of personations, and that "it was possible that due to personation the result of the election has been affected or at-least might have been affected "since if these two votes had been cast in favour of the returned candidate, namely, the petitioner before us the "result of the counting would be a tie and the result of the election should have to be decided on lottery drawn by the Presiding Officer which was apparently not done." The Tribunal observed:‑In all fairness, therefore, it is meet and proper that the election be declared void and a second election held, so that there might be a "fair trial of strength again in the field." Upon such views the Tribunal declared the election void. On behalf of the petitioner it was argued that it might as well be that the said two votes might have been cast in favour of the respondent No. 2 himself, or even in favour of the third candidate who secured only 8 votes in the election. It was contended that sub‑rule (IA) of rule 36 of the Rules framed under the Electoral College Act empowers election Tribunals to declare elections void in the event only of being affirmatively satisfied that by reason of non‑compliance of the rules or contravention of any provisions of the Act or the Rules framed thereunder the result of such an election has actually been affected. In view of the inconclusive findings of the Tribunal on the question as to if the two cases of personation had actually affected the result of the election it was claimed that the impugned order was liable to be quashed. On behalf of the respondent No. 2 it was contended that the powers of the Tribunal were not circumscribed by the provisions of the aforesaid sub‑rule (1‑A) of rule 36 of the Rules, and that in view of the wide teens of section 60, subsection (2) the Electoral College Act, the Tribunal was entitled to make any order it might think fit on a consideration of the evidence before it. This contention is based on a decision of the High Court of West Pakistan Meher Allahyar v. Syed Hasan Jahanian Shah Gardezi and others (P L D 1961 Lah. 247). In the case of Meher Allahyar which related to an election to the office of Chairman of a Union Council under the Basic Democracies Order it was held that an election of a Chairman could be declared void on the ground of irregularity if the Controlling Authority was satisfied that the said irregularity had affected the result of the election `one way or the other', and further that such an election could also be declared void for any sufficient reason, i.e., a reason which, though might not necessarily have affected the result of the election could be considered of sufficient weight and importance to justify annulment of the election. The above observations were made, as we have already indicated, in respect of a petition for setting aside an election to the office of the Chairman of a Union Council under the Basic Democracies Order. The Rule that was attracted to the case and was required to be interpreted was sub‑rule (2) of rule 7 of the West Pakistan Basic Democracies Election) of Chairman Rules, 1960, the terms of which were as follows:‑

"The Controlling Authority may after such enquiry as may be necessary, uphold the election of the Chairman, or declare the election as void for any material irregularity, or any sufficient reason to be recorded:" It is clear that the Authority concerned had power under the said rule to declare an election void for "material irregularity" or for any `sufficient reason' which was, of course, to be recorded. It was in that context that it was said that an irregularity complain ed of in terms of the rule was to be one that might affect the result of an election one way or the other. As to sufficient reason again, it was said that that the reason would be sufficient, though it might not have necessarily affected the result of the election, if it could be acceptable to a reasonable person in the facts and circumstances of a particular case to be of sufficient importance and weight to justify an annulment of an election. Here the case before us is governed by a different set of rules. The election that was challenged before the Tribunal was held under the Electorate College Act. It is the provisions of this Act and the Rules framed thereunder, therefore, to which one has to look for the procedure to be followed in disposing of such election disputes. Subsection (2) of section 60 of the Electorate College Act provides: "Subject to any rules made in this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit". The relevant rule is sub‑rule (1‑A) of rule 36 of the Rules framed under the Act, which is in the following terms:‑ "(1‑A) The Tribunal shall declare the election of the returned candidate or the election as a whole 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." The power of the Tribunal to make any order as it may think fit is thus controlled, by reason of the opening words of sub section (2) of section 60 of the Act, and the limitations prescribed by sub‑rule (1‑A) of rule 36, namely, that the Tribunal must be satisfied on two points; first, that there has been a non‑compliance or contravention of any provision of the Act or the Rules and, second, that such a non‑compliance or contravention has, in fact, materially affected the result of the election. In the first place, we are not satisfied that personation amounts to a non‑compliance or a contravention of any provision of the Actor the rules. In the second place, there being no means available to the Tribunal, because of the provision or secrecy of ballot, to ascertain if a vote cast of personation has actually gone to the returned candidate, we do not think that personation is contemplated under rule 36 (1‑A) to be a ground for setting aside are election. In the instant case there is no finding that the Tribunal was' satisfied that the votes cast by personation had actually affected the result of the election and, in fact, there could be no such finding. The Tribunal appears to have declared the election void upon certain extraneous consideration, namely, of equity and fairness that are no considerations that can enter into the trial of an election petition under the Electoral College Act, as is evidence from the rule cited above. For the foregoing reasons we have no hesitation to hold that the impugned order has been passed without jurisdiction, as it could not be shown or found that the two instances of personation had in fact affected the result of the election. The Rule is accordingly made absolute. It is declared that the order dated the 4th March 1965, passed by Election Tribunal Rajshahi Division, declaring the election of the petitioner to the Electorate College void has been passed without any lawful autho rity and is, therefore, without any legal effect. In the circumstances of the case we direct the parties to bear their own costs. SALAHUDDIN AHMED, J.‑I agree. K. B. A. Rule made absolute.