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Writ Petition No. 515 of 1963, decided on 25th November 1963.
Person incurring disqualification falling within ambit of Art. 5 of President's Order No. 13 of 1959-Stands disqualified forthwith without necessity of inquiry by EBDO Tribunal or consequent order of Govern ment-Merely because EBDO Tribunal elected to hold inquiry into alleged misconduct of person based on Art. 5 of President's Order No. 13 of 1959-Does not deprive such person of benefit of provisions of President's Order No. 7 of 1962.
Fazlul Quader Chowdhury's case P L D 1963 S C 486 ref.
Disqualifica tions in addition to those enumerated in sub-cls. (a) to (d) of cl. (2) can be imposed by or under any law.
-A valid legislation.
Refers only to stage after holding of election-Provision cannot be construed as barring passing of law vesting in commission power of dealing with dispute arising at pre-election stage.
, Art. 2 and Constitution of Pakistan (1962), Art. 171 (1) (a)-No conflict between two provisions.
-Not independent law but part and parcel of President's Order No. 4 of 1962-National and Provincial Assemblies (First Elections) Order [President's Order No. 4 of 1962].
Enactment altering, repealing or amending provision of law-Intention need not be clearly stated.
United Provinces v. Mst. Atiqa Begum A I R 1941 F C 16 and "The Interpretation of Statutes" by Bindra Second Edition at page 407 rel.
Petitioner in person.
Mian Mahmud Ali for Respondent.
Dates of hearing : 7th, 8th, 9th and 10th October 1963.
-By a short order, dated the 10th of October 1963, three Writ Petitions (Nos. 515, 522 and 710 of 1963), were dismissed. This detailed order sets out the reasons for our decision.
2. The above-mentioned petitions, of which two (Nos. 515 and 522) were brought by Mr. Fazl-i-Mahmood, Advocate, as petitioner, and the other by Mr. Iftikhar Husain Rana, arose out of the election of Mr. Muhammad Hussain Chatha (herein after referred to as Mr. Chatha), the sole respondent in Writ Petition No. 515 and respondent No. 1 in the remaining peti tions, to the National Assembly of Pakistan (hereinafter referred to as the Assembly) as a result of the elections held on the 3rd of May 1962.
3. The facts are that in the year 1953, Mr. Chatha was detained for a period of forty days under Bengal Regulation III of 1818, the preamble to which sets out that reasons of state occasionally render it necessary to place under personal restraint individuals against whom there may not be sufficient ground to institute any judicial proceedings. On the 7th of August 1959, the President of Pakistan (hereinafter referred to as the President) passed the Elective Bodies (Disqualification) Order (President's Order No. 13 of 1959), (hereinafter referred to as EBDO). Article 5 (1) (b) of that order lays down that notwith standing anything contained in the order or in any other law a person shall stand disqualified until the thirty-first day of December 1966, for being a member or a candidate for the membership of any elective body if an order under section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952), or a similar order under any other law relating to the prevention of acts prejudicial to the defence, or the external affairs, or the security of Pakistan or any part thereof, or to the maintenance of supplies and services essential to the community, or the maintenance of public order, has ever been made against him.
4. The present Constitution of the Republic of Pakistan was enacted on the 1st of March 1962, and Article 103 (2) (e) thereof provides that a person is disqualified from being elected as, and from being, a member of an Assembly if he is otherwise disqualified from being a member of that Assembly by the Con stitution or by or under any law. On the 3rd of April 1962, however, the President passed the Removal of Disqualification (Election) Order, 1962 (President's Order No. 7 of 1962), Article 2 of which provides that notwithstanding anything con tained in EBDO or in any other law for the time being in force no person who has been detained by any order made before the 7th October 1958, under any provision of the Security of Pakistan Act, 1952, or of the East Bengal Public S1'ety Act, 1954, or any similar order made under any law, shall be dis qualified from being, or being elected as, a member of the National Assembly or of the Assembly of a Province if the period of such detention has not exceeded 60 days.
5. On the 4th of April 1962, the date fixed for the purpose under the provisions of Article 9 of the National and Provincial Assemblies (First Elections) Order, 1962, (President's Order No. 4 of 1962), Mr. Chatha submitted two nomination papers for election to the Assembly. On the following day the Returning Officer appointed under Article 13 of the aforesaid order accepted the nomination papers of the other candidates for the same Constituency, No. N. W. 41, Sheikhupura, including Mr. Fazl-i -Mahmood and Mr. Iftikhar Husain Rana, but refrained on personal grounds from passing any order on those of Mr. Chatha. On the 7th of April 1962, another Returning Officer, Mr. Aftab Ahmad Khan, rejected Mr. Chatha's papers on the main ground that President's Order No. 7 of 1962, did not cover the case of persons against whom an order had been passed by Government on the basis of a finding of the EBDO Tribunal.
6. In accordance with the provisions of Article 153 (1) of the Constitution an Election Commission (hereinafter refer red to as the Commission) consisting of the Chief Election Commissioner (hereinafter referred to as the Commissioner) and one Judge from each of the two High Courts of East and West Pakistan had been set up, and Article 171 (1) (a) of the Consti tution lays down that provision may be made by law for disputes arising in connection with the counting of votes at an election or referendum required to be held under the Constitution to be finally determined by the Commissioner or the Commission. On the 13th of April, the Removal of Difficulties (First Elections) Order 1962, (President's Order No. 10 of 1962), was passed. In the preamble thereto it is stated that doubts had arisen whether in view of paragraph (a) of clause (1) of Article 171 of the Constitution rejection of the nomination of a candidate by the Returning Officer could be reviewed by the Commission or the Commissioner, and that the order in question was being passed in exercise of the powers conferred on the President by Articles 224 and 229 of the Constitution, together with all other powers enabling him in that behalf. Clause (1) of Article 2 of President's Order No. 10 conferred on the Commis sion or, if the Commission was not in existence, the Commissioner, the power to review such rejection and pass such orders as the Commission or the Commissioner might deem fit, while clause (2) provided that the order or orders passed on review under clause (1) were to be final.
7. Article 82 of President's Order No. 4 of 1962, expressly authorised the Commissioner or any member of the Com mission to exercise and perform all or any of the powers and functions of the Commission under the said Order. The learned Deputy Attorney-General placed at our disposal a copy of the proceedings of the Commission dated the 12th of April 1962, confirmed on the following day. Item I of the said proceedings is to the effect that in view of the promulgation of Order No. 10 of 1962, by the President with regard to provision for review of the rejection of the nomination of a candidate the members agreed with the Commissioner that the power to entertain and decide such review petitions and also to take action suo motu be delegated to the members. (It may inciden tally be pointed out that although Order No. 10 was not noti fied in the Official Gazette until the 13th of April 1962, it appears from what has been stated above that the order was available to the Commissioner on the 12th of April, the date which is also given in paragraph 2 of the order of Mr. Justice Masud Ahmad, Member of the Commission, copy of which forms Annexure E' to Petition No. 522).
8. On the 8th of December 1962, the President promulgated the Election Laws Amendment Order, 1962, (President's Order No. 39 of 1962), which was given retrospective effect from the date of promulgation of President's Order No. 10 and which added two new Articles after Article 3 of the latter Order. Clause (1) of the new Article 4 empowers the Commission to authorise the Commissioner or any Member of the Commission to exercise and perform all of its powers and functions under Order 10. Article 4 of President's Order No. 39 runs as follows :-
"Any power delegated or any rule made under the National and Provincial Assemblies (First Elections) Order, 1962, (P. O. No. 4 of 1962), in relation to any matter provided for in the Removal of Difficulties (First Elections) Order, 1962, (P. O. No. 10 of 1962), and anything done or any action taken under or in pursuance of such delegation or rule shall be valid and shall be deemed to have been delegated, made, done or taken under or in pursuance of the President's Order No. 10 of 1962, as amended by Article 3 of this Order."
9. Acting in pursuance of the delegation of the powers of the Commission, Mr. Justice Masud Ahmad (hereinafter referred to as the Member) issued notice suo motu on the 13th of April 1962, to the parties concerned calling upon them to appear before him the following day as he intended to consider the question of reviewing the order of the Returning Officer rejecting Mr. Chatha's nomination papers. In compliance with that order Mr. Chatha, Mr. Fazl-i-Mahmood and Mr. Iftikhar Husain Rana duly appeared. The present petitioners raised a number of objections to the jurisdiction of the learned Member, but those objections were overruled, and by his order dated the 16th of April 1962, the learned Member set aside the order of the Returning Officer rejecting Mr. Chatha's papers, accepted them, and directed that Mr. Chatha's name be duly notified as a candidate for election to the Assembly.
10. On the 29th of April 1962, the Settlement of Disputes (First Elections) Order (President's Order No. 13 of 1962), was promulgated in exercise of the powers conferred by clause (8) of Article 229 of the Constitution and of all other powers enabling the President in that behalf. Clause (1) of Article 3 of the above order lays down that save as provided in clause (2) no election shall be called in question except by an election petition presented to the Commission in accordance with the provisions of Chapter III of the Order, while clause (2) is to the effect that where, on scrutiny under Article 13 of the Order, the Returning Officer rejects the nomination of a candidate, an appeal shall lie to the Commis sion under Chapter II of the Order. Chapter II prescribes the procedure to be followed in appeals from an order rejecting the nomination of a candidate. Article 4 of the Order prescribes that no question that can be raised in appeal under Chapter II shall be raised by an election petition or before any Court or authority whatsoever, nor shall any question that can be raised by an election petition be raised before any such Court or authority.
11. The election to the Assembly was held on the 3rd of May 1962, it being stated in paragraph 1 of Mr. Iftikhar Husain Rana's petition that of the candidates standing from Constituency No. N. W. 41, Sheikhupura, Mr. Chatha secured 316 votes, Mr. Iftikhar Husain Rana 225 and Mr. Fazl-i- Mahmood 3.
12. In due course Mr. Iftikhar Husain Rana filed an Election Petition (No. 38 of 1962), under Article 9 of President's Order No. 13 of 1962, against Mr. Chatha's election, contending, inter alia, that as Mr. Chatha stood disqualified under EBDO his nomination paper was rightly rejected by the Returning Officer. The petition was dismissed on the 12th of November 1962, on the ground that the acceptance of Mr. Chatha's nomination papers by the Commission was final and could not be called in question in any Court. Mr. Fazl-i-Mahmood states that as he was a respondent in the above petition, it was not necessary for him to file a separate petition.
13. In Writ Petition No. 515 Mr. Fazl-i-Mahmood claims the following reliefs :-
(a) That he be granted a rule nisi requiring Mr. Chatha, who purports to hold the public office of a Member of the National Assembly, to show under what authority of law he claims to hold the said office.
(b) That if Mr. Chatha makes an insufficient or false answer or fails to answer the rule nisi may be made absolute.
(c) That a direction be issued to Mr. Chatha not to intermeddle with or do any act or thing in connection with the above office and that the said office be declared vacant.
(d) That an interim injunction be issued restraining Mr. Chatha from meanwhile taking part in the deliberations of the Assembly.
(e) That such further order be passed as this Court may deem fit and proper in the circumstances of the case.
14. In Petition No. 522 he asks for a declaration that the orders referred to in clause (k), commencing from page 39 of the petition, are without lawful authority and of no legal effect.
15. In Writ Petition No. 710 Mr. Iftikhar Husain Rana prays that the order of the Election Tribunal in Election Petition No. 38 of 1962, (referred to in paragraph 12 above) be set aside and the petitioner be declared elected to the Assembly from Constituency N. W. 40, Sheikhupura.
16. On the facts as stated above it will be convenient to deal first with the following question: assuming for the sake of argument, though without expressing any opinion at this stage, that President's Order No. 7 is valid, what is its effect on Mr. Chatha's eligibility for election to the Assembly As already pointed out, the Returning Officer held that m spite of the provisions of the said order the disqualification attaching to Mr. Chatha was not removed, his main reason for this finding being that President's Order No. 7 of 1962, saved only those persons against whom no order had been passed by the EBDO Tribunal. The relevant portion of the order (copy of which is Annexure 'B' in Petition No. 522) runs as follows :-
"To my mind it appears that this Order (President's Order No. 7 of 1962), does not cover the case of those persons against whom an order had already been passed by the Government on the findings of the EBDO Tribunal which Order (EBDO 1959), at the moment stands repealed. Besides this, there is no mention in President's Order No. 7 of 1962, that this also removes the disqualifications of persons found guilty for misconduct and later on disqualified for being a member or a candidate for the membership of any elective body and a notification issued by the Government to this effect. The order passed by the EBDO Tribunal still stands and unless that order is withdrawn Chaudhri Muhammad Hussain Chatha cannot be taken as a person qualified to contest election of the National Assembly or be a member of any elective body up to 31st day of December 1966."
17. In order to understand the position, it is necessary to analyse the relevant provisions of EBDO. The relevant portion of the definition of "misconduct" runs:
"'Misconduct' refers to conduct after the fourteenth day of August 1947, and includes any subversive activity, . . . . ."
Clause (2) of Article 4 [President's Order No. 13 of 1959] confers on the West Pakistan Tribunal the function of enquiring into and reporting upon cases relating to the misconduct of persons who had, on or before the fourteenth day of October 1955, held any office, post or position, including the membership of any elective body, in or in connection with the affairs of the Province of West Pakistan, or, before that day, in or in connection with the affairs of any of the Provinces, Acceding States or other areas incorporated on that day in the said Province. As Mr. Chatha had been a Minister of the then Punjab Province, he falls within the above category of persons, Article 6 [of the Order] first provides that the Tribunal shall not proceed to enquire into any charge of misconduct except on a reference in writing made to it by such officer, committee or authority as the appro priate Government may, by notification in the Official Gazette, appoint in this behalf, while Articles 7, 8 and 11 [of the Order] lay down the procedure to be followed by the Tribunal.
18. The provisions referred to above relate to an inquiry into charges of misconduct referred to the Tribunal by the competent authority and clearly imply that at the time of the reference the question whether the person concerned has been guilty of misconduct has not yet been determined and is to be decided by the Tribunal. On the other hand, Article 5, [of Pre sident Order No. 13 of 1959], the relevant portion of which has been reproduced in paragraph 3 above, stands on an entirely differ ent footing and entails the automatic disqualification of any person falling within its ambit, no inquiry of any kind being necessary. It is, therefore, clear that but for the provisions of President's Order No. 7 of 1962, Mr. Chatha would have auto matically stood disqualified from election to the Assembly even if no finding of the Tribunal had been given against him. Further, the Returning Officer himself conceded by implication that if no such finding had been given, Mr. Chatha would have been entitled to the benefit of the Order. Can it, therefore, be reasonably argued that merely because the Tribunal took upon itself to hold an inquiry into an alleged charge of misconduct against Mr. Chatha based on Article 5, he should lose that benefit The learned Member dealt with this contention as fol lows :-
"In my opinion, the Tribunal was not competent to make any inquiry into the cases of those persons who were disqualified under Article 5 of the Order, because such persons stood disqualified in terms of that Article, without the order of the Tribunal or the Government . . . . . . The order passed by the Tribunal, therefore, cannot be considered to be fn accord ance with law nor can the subsequent notification issued by the Provincial Government, incorporating the Tribunal's finding, confer any validity on that finding."
19. The above observations of the learned Member appear to me to have considerable force. If I may respectfully use the language employed by the learned Chief Justice of Pakistan in Fazlul Quader Chowdhury's case (1), the question whether Mr. Chatha stood disqualified under Article 5 of President's Order No. 13 of 1959, by reason of the fact that an order under Bengal Regulation III of 1818, is "a fact capable of instant proof, requiring no ascertainment by any fact finding process,"
and accordingly Article 5 of the above order lays down a rule of automatic application, namely, that a person against whom such an order has been passed stands forthwith disqualified. In this connection it is to be noted that paragraph 1 of notifica tion No. DAC-EBDO (3)-59/2561, dated the 19th of August 1960, (Annexure D' to Petition No. 522 of 1963), issued by the Govern ment of West Pakistan, Anti-Corruption Department, runs:
"Whereas a reference was made by the West Pakistan Public Offices (Misconduct) Inquiry Committee to the West Pakistan (Elective Bodies Disqualification) Tribunal to enquire into certain charges of misconduct (of the nature of subversive activity resulting on 26-4-53, in the issue of the order of detention under the provisions of the Bengal State Prisoners Regulation III of 1818), against Ch. Muhammad Hussain Chatha, formerly Minister, Government of the Punjab, in accordance with the provisions of Elective Bodies (Disqualifica tion) Order, 1959 ;"
The wording of the above paragraph clearly shows that the only form of "misconduct" into which the Tribunal purported to have enquired was the issue of the above order of detention. The fact that such an order had been passed against Mr. Chatha was never in dispute, and therefore under the law as it stood before the 4th of April 1962, Mr. Chatha was automatically disqualified from being a member of the Assembly. It is also obvious that if no fact finding process was necessary, no "inquiry" within the ordinary meaning of the word was held.
20. Mr. Zafar for respondent No. 3 in Writ Petition No. 522 of 1963 attempted to draw a distinction, so far as the effect of an order of the type passed against Mr. Chatha is concerned, between persons whom he describes as "simple citizens" and persons who had held some public office, such as that of a Minister to the then Punjab Government, but I have been unable to find any basis for such a distinction. I, therefore, agree with the learned Member that no order of an EBDO Tribunal or notifi cation of Government in respect of Mr. Chatha's alleged mis conduct was necessary and that consequently the order cannot be considered to have been one passed in accordance with law.
21. I may also here mention the argument advanced by Mr. Fazl-i-Mahmood that in passing his order the learned member was under the impression that he retained the power which vested in him as a Judge of the High Court of West Pakistan to issue a writ of certiorari. This contention is based on a misconception. No doubt, in paragraph 18 of the above order, the learned Member quoted a passage from paragraph 268 of Halsbury's Laws of England, Third Edition, Volume II, to the effect that although an inferior tribunal may have jurisdic tion over the subject-matter of an inquiry, it may be a condition precedent to the exercise of its jurisdiction that some steps should have been previously taken by the person who institutes proceedings before the tribunal, for example, the issue of certain notices, and that the omission to serve such notices deprives the inferior tribunal of jurisdiction and affords grounds for certiorari. It is obvious, however, that in reproducing the above passage the learned Member was only emphasising certain circumstances in which the proceedings of an inferior tribunal had become ultra vires, and did not at any stage purport to issue a writ of certiorari.
22. For the reasons given above I am of the opinion that had it not been for the passing of President's Order No. 7 of 1962 Mr. Chatha would have automatically stood disqualified from election to the Assembly. The question must, therefore, now be examined whether the above order was intra vires of the powers of the President.
23. Article 103 (2) (e) of the Constitution lays down that a person is disqualified from being elected as, and from being, a member of an Assembly, if he is otherwise disqualified from being a member of that Assembly by the Constitution or by or under any law. The petitioners do not go so far as to contend that the disqualifications to which a candidate for election may be subject under any law are fixed for ever as on the enact ment day of the Constitution, such an argument being clearly untenable. They urge, however, that the President had no power to alter the law between the 1st of March, when the Constitution was enacted, and the 8th of June, the commencing day.
24. A reference to President's Order No. 7 shows that it purports to have been made in exercise of the powers vested in the President under clause (8) of Article 229 of the Constitution, read with paragraph (e) of clause (2) of Article 103, and of all other powers enabling him in this behalf. Article 103 (2) (e) has already been referred to. Article 229, which occurs in the chapter headed "Transitional and Temporary Provisions" lays down that the Article shall have effect until an Electoral College of Pakistan is constituted as provided in Article 158, subject to the proviso that it shall not affect the operation of any other provision of the Constitution that is not inconsistent with the Article. Clause (8) runs:
"The President may, by Order, make such provision with respect to any election or referendum as, under this Con stitution, is permitted or required to be made by law."
Article 103 (2) (e) is clear on the point that in addition to the disqualifications enumerated in sub-clauses (a) to (d) of clause (2), other disqualifications can be imposed by or under any law. It is, therefore, evident that at any time after the com mencing day the appropriate Legislature was empowered to pass a law imposing certain disqualifications on candidates for election. It is further clear that Order No. 7 relates to matter pertaining to an election. During the period between the enactment day and the commencing day the President enjoyed the prerogative of passing, in the form of an Order, any law which could subse quently be passed by the Legislature. A reference to Item No. 35 of the Third Schedule to the Constitution shows that the Central Legislature has the power of making laws relating to elections to the Assembly. Unless, therefore, President's Order No. 7 amended any of the substantive provisions of the Constitution, it is valid. C I am further of the opinion that no such amendment has been -effected. If the disqualifications to which a candidate for election to the Assembly is subject can be altered from time to time by a sub-constitutional provision, it cannot possibly be argued that a law relating to such disqualification alters any of the sub stantive provisions of the Constitution. The mere fact that the Order now under consideration has not imposed any additional disqualification on candidates for election, but, on the contrary, makes certain persons eligible for election who were formerly ineligible, does not, of course, affect the question.
25. Mr. Fazl-i-Mahmood has advanced the argument that "in the purported exercise of his powers under clause (8) of Article 229 of the Constitution, the President could not travel into the normal legislative field of law-making in the nature of Ordinances as contemplated by Article 29 of the Constitution . . . . . ." This is sufficiently answered by Mr. Fazl-i-Mahmood's own further observation : "Nor does he say that he had done so". Being possessed of the requisite powers under Article 229 (8) of the Constitution, it was entirely unnecessary for the President to promulgate any Ordinance.
26. A similar answer can be given to Mr. Fazl-i-Mahmood's argument that Order No. 7 of 1962 could not have been passed even by invoking the extraordinary powers under clause (3) of Article 224 of the Constitution, there being no difficulty in bringing the Constitution into operation. In passing Order No. 7 the President never purported to be removing any such difficulty.
27. The matter may also be considered from another point of view. In passing Order No. 7 of 1962 the President invoked not only Articles 229 (8) and 103 (2) (e) of the Constitution, but also "all other powers enabling him in this behalf". A reference to Article 225 (2) of the Constitution shows that until the commencing day, the 8th of June 1952, both the Presidential Proclamation of the 7th of October 1958 and the Laws (Continuance in Force) Order, 1958, continued to have full effect. Clause 4 of the Laws (Continuance in Force) Order provides that although all laws, other than the late Constitution, were to continue in force until altered, repealed or amended by a com petent authority, the continuance of life so granted was subject to any Order of the President. Consequently, even apart from Article 229 (8) and 103 (2) (e) of the Constitution, the President was fully competent to alter, repeal or amend any law up to and including the 7th of June 1962, subject, of course, to the proviso that such alteration, repeal or amendment did not come into conflict with any provision of the Constitution. From this point of view also, therefore, President's Order No. 7 is valid.
28. For the above reasons I am of the opinion that the validity of President's Order No. 7 of 1962, is not open to challenge.
29. Another point of view from which the petitioners attack the order of the learned Member is that, in the first place, the Constitution did not permit the Commission to scrutinise any order rejecting the nomination of a candidate for election to the Assembly, and, secondly, that even if it be conceded that the Commission possessed such a power, it was not competent to delegate it to any of its Members.
30. In contesting the power of the Commission to scrutinise an order of the Returning Officer rejecting the nomination papers of Mr. Chatha, the petitioners take their stand, inter alia, on Article 171 (1) of the Constitution. As already stated sub clause (a) of the above Article lays down that provision may be made by law for disputes arising in connection with the counting of votes at an election or referendum required to be held under the Constitution to be finally determined by the Commissioner or an Election Commission, while under sub-clause (b) other disputes arising in connection with such an election or referendum are to be finally determined by a tribunal established for that purpose. According to the petitioners, the combined effect of the above provisions is that the only type of dispute arising in connec tion with an election with which the Commission is competent to deal is that connected with the counting of votes. In my opinion, however, it is clear that Article 171 (1) refers only to the stage after the holding of an election, its meaning being that once the election has been held, a dispute relating to the counting of votes is to be determined by the Commission and other disputes by the tribunal established for the purpose ; that is, an Election Tribunal, and it cannot be construed as barring the passing of a law vesting in the Commission the power of dealing with a dispute arising at the pre-election stage. Article 164 of the Constitution provides that elections and referendums required to be held under the Constitution shall, subject to the Constitution, be conducted and decided in such manner as may be provided by law: Further, Article 164 is to be read with Article 229 (8), which vests in the President the power of making, by Order, such provision with respect to any election or referendum as, under the Constitution, is permitted or required to be made by law.
31. The Order passed by the President in pursuance of the above provisions, read also with Article 228 of the Constitution, is the National and Provincial Assemblies (First Elections) Order (President's Order No. 4 of 1962). Article 9 (b) of the above Order lays down that as soon may be after a constituency has been called upon under Article 5 to elect a person, the Com mission shall, by notification in the Official Gazette, appoint in relation to each constituency a day for the scrutiny of nomina tion papers, while under Article 13 (3) the Returning Officer may, either of his own motion or upon any objection, conduct such summary inquiry as he may think fit and reject any nomination paper if he is satisfied that the conditions specified in clauses (a) to (d) of the said sub-Article are fulfilled. The clause relevant for the purposes of these petitions is clause (a), under which a nomination paper is to be rejected if the candidate is not qualified to fill the seat for which he has been nominated. According to the petitioners, Mr. Chatha, being disqualified under Article 5 of EBDO, fell within the mischief of the above clause.
32. A perusal of Order No. 4 will show that no provision is made therein for scrutiny or review of an order passed by the Returning Officer rejecting a nomination paper, it being perhaps considered at that time that the remedy open to a candidate whose paper or papers had been rejected should be by way of an election petition after the election had been held, the procedure which had obtained under the Representation of the Peoples Act (XXXI of 1957).
33. Subsequent to the passing of President's Order No. 4 of 1962, however it was apparently felt that instead of allowing an election to be held and then possibly upset as a result of an election petition of the type contemplated by the proviso to section 15 (4) of the Representation of the Peoples Act, provision should be made be interference at an earlier stage. Accordingly, on the 13th of April 1962, the President passed the Removal of Difficulties (First Elections) Order (No. 10 of 1962). As already pointed out, the preamble of that Order runs:
"Whereas, in view of paragraph (a) of clause (1) of Article 171 of the Constitution, doubts have arisen as to whether the rejection of the nomination of a candidate by the Returning Officer can be reviewed by the Election Commission or the Chief Election Commissioner;
And, whereas, it is necessary to remove doubts ;
"Now, therefore, in exercise of the powers conferred by Article 224 and Article 229 of the Constitution, and of all other powers enabling him in that behalf, the President is pleased to make the following Order ;"
As already seen, Article 2 of the Order lays down that if nomination of a person as a candidate for election to the Assembly has been rejected after scrutiny by the Returning Officer, the Election Commission, or, if the Election Commission is not in existence the Chief Election Commissioner, has the power to review such rejection and pass such orders as may deem fit, such order or orders being final. According to the petitioners, this provision comes in conflict with Article 171 (1) (a) of the Constitution, and Mr. Fazl-i-Mahmood places reliance on the well-known maxim that if a statute lays down that something should be done in a particular way, it can only be done in that way and in no other. In my opinion, however, this argument is without force. As I have already pointed out, Article 171 relates not to the pre-election stage, but to the situation arising after the holding of an election, and cannot reasonably be construed as prohibiting the passing of any law enabling the Commission to review an order of rejection of a nomination paper. The doubts that had arisen as to whether in view of Article 171 (1) (a) the rejection of a nomination paper could be reviewed by the Election Commission or the Chief Election Commissioner, were thus without solid foundation. I can find nothing in the Constitution which can be interpreted as debarring the President from making the provision in question, and I may add that, in my opinion, the provision is eminently reasonable. It appears to me to be greatly preferable that, if a candidate's nomination paper has been wrongly rejected, the error should be corrected forthwith thereby enabling him to stand for election, rather than that the other candidates should be put to the inconvenience and expense of a fresh election campaign by reason of the subsequent acceptance of an election petition based on the erroneous rejection of the paper.
34. Mr. Fazl-i-Mahmood has raised the objection that as the language of Article 171 is clear and unambiguous, no difficulty in bringing the provisions of the Constitution into force could be held to have arisen. This contention is without substance. If the previous scheme had been adhered to and the rejection of a 'nomination paper could not be challenged until after the election by means of an election petition, the resulting inconvenience and expense caused to candidates may well be held to fall within the definition of a difficulty.
35. For the above reasons I am of the opinion that President's Order No. 10 is valid.
36. The next point for consideration is whether, assuming that the Commission was validly vested with the power of scrutinising or reviewing the order of a Returning Officer rejecting a nomination paper, that power could be delegated to one of its Members. If Order No. 10 had specifically purported to amend or supplement Order No. 4, this question would have presented no difficulty, since Article 82 of the later Order expressly provides that the Commission may authorise the Chief Election Commissioner or any Member of the Commission to exercise and perform all or any of its powers and functions under this Order. Order No. 10 purports, at least in form, to be a separate and distinct Order, and the petitioners seek to take advantage of the omission from it of any power of delegation. Their argument therefore is in substance that although the Commission could validly delegate to one of its Members all or any of the powers exercisable under President's Order No. 4, it had no authority to delegate the power conferred by Order No. 10. They further call attention to the fact that although Article 85 of President's Order No. 4 confers on the Commission the power to make rules for carrying out the purposes of that Order, Order No. 10 confers no such power. It may here be mentioned that in exercise of the powers conferred by Article 85 of President's Order No. 4, the Commission framed certain rules. After the promulgation of Order No. 10, the following rule was added as rule 13:--
"13(1) The Election Commission may invite review appli cations against the orders of any Returning Officer rejecting the nomination of a candidate and may direct that such application be filed with such person or persons and at such place or places and within such time .as may be specified by the Commission.
(2) Any candidate whose nomination has been rejected by a Returning Officer may address a review application to the Commission and file it with the Regional Election Commis sioner of the Province within which the constituency concerned is located. Such an application shall be filed within three days after the scrutiny day or before the 16th of April 1962, which ever date be later.
(3) The Commission may dispose of an application filed under sub-rule (1) or (2) either summarily or after calling for the records. The Commission may, if it thinks fit, afford an opportunity to the candidate filing the application or any other person to appear and be heard and may take such evidence as it may think necessary.
(4) The Commission may also call for the record suo motu and pass such orders as it may deem fit."
According to the petitioners, the above rule is ultra vires. The same objection was raised before the learned Member, who dealt with it, vide paragraph 7 of the impugned order, as follows :-
"So far as the objection regarding the validity of the newly -added rule is concerned, the contention of Mr. Fazl-i-Mahmood is that the rule-making power of the Commission is limited by Article 85 of the National and Provincial Assemblies (First Elections) Order, 1962, and the Commission can make rules only for carrying out the purpose of that Order and as the Removal of Difficulties (First Elections) Order, 1962, (President's Order No. 10 of 1962) is not a part of the first mentioned order, no such rules could be framed by the Commission. In raising this objection it was assumed that the Removal of Difficulties (First Elections) Order, 1962, was no a part and parcel of the National and Provincial Assemblies (First Elections) Order, 1962, and is by itself an independent law. 'This assumption is incorrect, because if the Removal of Difficulties (First Elections) Order, 1962, had to be read without any reference to the National and Provincial Assemblies (First Elections) Order, 1962, all the expressions used in the first-mentioned Order would have been defined and it would have been a self-contained document. This is, however, not the case, because without reference to the National and Provincial Assemblies (First Elections) Order, 1962, the Removal of Difficulties (First Elections) Order, 1962, cannot be understood or applied. It is, therefore, for ail practical purposes a part and parcel of the first-mentioned Order, and is not an independent law."
The learned Member went on to add that even if it be assumed for the sake of argument that the rule-making power conferred by Article 85 of Order No. 4 of 1962 could not be invoked for the purpose of framing a rule under Order 10, it would not help the present petitioners, since, independently of the rules, Article 2 of President's Order No. 10 conferred on the Commission the power of reviewing the rejection of nominations. This obser vation again implies the assumption that Order No. 10 is only an amendment of Order No. 4.
37. As was to be expected, the petitioners vigorously contest the conclusion of the learned Member that Order No. 10 was not an independent Order but an amendment of Order No. 4. It is, however, well settled that in order that a subsequent enactment may alter, repeal or amend a provision of law, it is not necessary that the intention should be clearly stated. In United Provinces v. Mst. Atiqa Begum (AIR 1941 FC 16), Sulaiman, J., observed as follows :-
"But it is not absolutely necessary that a statute must be repealed by express language, e.g., shown as repealed in an attached schedule. Repeal, and certainly alteration or amendment, can be effected by necessary implication also. When two Acts are clearly inconsistent with or repugnant to each other, the former will be deemed to have been impliedly repealed or amended, as the last expression of the will of the Legislature must always prevail."
Again, in Bindra's "The Interpretation of Statutes", Second Edition, at page 407, the learned author remarks:
"A law is amended when it is, in whole or in part, permitted to remain, and something is added to or taken from it, or it is in some way changed or altered to make it more complete or perfect, or to fit it the better to accomplish the object or purpose for which it was made, or some other object or purpose. It is an alteration or change of something established as law. Quoting U. S. v. LaFramea, Sutherland says : Any change of the scope or effect of an existing statute, whether by addition, omission or substitution of provisions, which does not wholly terminate its existence, whether by an Act purporting to amend, repeal, revise or supplement, or by an Act independent and original inform, is treated as a mandatory."
The words I have emphasised in the quotation are particularly relevant to the present case.
38. Mr. Zafar for Mr. Iftikhar Husain Rana called attention to Article 39 of President's Order No. 13, which lays down that the provisions of that Order shall take effect notwith standing anything inconsistent therewith contained in any other law for the time being in force, and contended that this constituted "an implied repeal of the provisions of finality contained in President's Order No. 10 of 1962" but, as will be seen, there is no inconsistency between the two Orders and this argument is without substance.
39. In my opinion, therefore, President's Order No. 10 of 1962 may legitimately be regarded as amendment of, or supplement to, Order No. 4, and it would be unreasonable to hold that although the Commission had power to delegate all the functions (some of them of great importance) conferred upon it by President's Order No. 4, it had no such power under Order No. 10. Similarly, rule 13 added by the Commission may be considered as having been framed under the former Order.
40. The matter does not, however, end there. On the 8th of December 1962, the President, purporting to act under the powers conferred by clause (8) of Article 229 of the Consti tution and all other powers enabling him in that behalf, passed Order No 39 of 1962. Article 2 of that Order purported to effect a number of amendments in President's Order No. 4, while Article 3 added two new Articles (4 and 5) to President's Order No. 10. The new Article 4 vested in the Commission specific authority to delegate all its powers and functions under the Order to the Chief Election Commissioner or a Member, while Article 5 conferred a rule-making power on the Commission. Order No. 39 was given retrospective effect.
41. In reply to the argument of the petitioners that if Order No. 10 was only an amendment to Order No. 4, there was no need to promulgate the relevant provisions of Order No. 39, the learned Deputy Attorney-General took up the position that the Order was only by way of abundant caution. The petitioners vehemently urged that this Order was also ultra Tires of the powers of the President, but I am unable to agree. As Article 229 was to continue to have effect until the constitution of the Electoral College of Pakistan, the Order, if clause (8) had been properly invoked, was not limited to the period of three months after the commencing day, and although it may be considered unusual to pass, with retrospective effect, an Order relating to elections that had already been held, such a procedure does not by itself invalidate the Order, which cannot, by any stretch of imagination, be considered as altering any fundamental provision of the Constitution. Mr. Fazl-i-Mahmood contends that as, on the 8th of December 1962, the President was completely divested of his powers under clause (3) of Article 224 of the Constitution, he could not validate, amend or add the President's Order No. 10. If the latter Order had been passed in exercise of the powers conferred by Article 224, this argument might have had considerable substance, but, as already pointed out, the powers invoked were those under Article 229 (8), and Order No. 10 does not have the status of a constitutional provision, but is at best sub- constitutional, relating to a matter which, under the Constitution, was permitted or required to be made by law. The Order had thus the force of a law, and as the President's powers under Article 229 continue until the constitution of an Electoral College of Pakistan, they could be validly invoked to amend the law relating to elections as contained in President's Order No. 10.
42. Another argument raised by Mr. Fazl-i-Mahmood is that even if it be assumed that President's Order No. 10 is valid and vested in the Commission the power to frame rules thereunder, that power could not be exercised suo Motu. The learned Member has referred in paragraph 6 of the impugned order to a press note issued on the 12th of April 1962 which, while stating that the Commission had authorised its Members to dispose of review applications filed against the orders of rejection of nomination papers, made no mention of the Commission's having granted the power to the said Members to review such powers suo Motu. The learned Deputy Attorney- General has, however, filed a copy of the proceedings of the Commission conducted on the 12th of April 1962, which runs:
"Proceedings of the Election Commission dated 12-4-1962.
"(1) In view of the promulgation of Order No. 10 of 1962 by the President, with regard to provision for review of the rejection of the nomination of a candidate, the Members agreed with C. E. C. (Chief Election Commissioner) that the power to entertain and decide the review petitions and to take action suo Motu (sic) may be delegated to the Members.
(2) The Members similarly agreed to the issue of rules to this connection by amendment of the existing rules as suggested by C. E. C.
(3) The agreement of the Members was taken through telephone calls during the night of 12-4-1962.
"May form part of the proceedings of the Commission and may be confirmed as such."
The above account of the proceedings was confirmed by the learned Commissioner on the 14th of April 1962. It is, therefore, correct, as stated by the learned Member, that the power of calling for a record suo motu had been vested in him by the Commission. Attention may also be drawn to Article 2 (i) of President's Order No. 10. It runs:
"If the nomination of a person as a candidate for election to the National Assembly or a Provincial Assembly has been rejected after scrutiny by the Returning Officer, the Election Commission, or if the Election Commission is not in existence, the Chief Election Commissioner has the power to review such rejection and pass such orders as the Election Commission or the Chief Election Commissioner may deem fit.
It will be seen that the language of the above sub-Article differs materially from that of Order 47, rule 1, of the Civil Procedure Code, which provides only for review by any person considering himself aggrieved by the decree or order in question. This argument of the petitioner is, therefore, without force, and to sum up on this point I am of the opinion that the delegation made by the Commission in favour of its Members is not open to exception.
43. The only Presidential Order remaining to be discussed is the Settlement of Disputes (First Elections) Order (No. 13 of 1962), passed on the 29th of April. This Order also purported to be passed in exercise of the powers conferred by clause (8) of Article 229 of the Constitution, and as the title sufficiently indicates, it lays down the procedure for dealing with disputes relating to the conduct of elections. The scheme briefly is that, save as provided in clause (2) of Article 3, no election shall be called in question except by an election petition. Clause (2) of Article 3 provides that where, on scrutiny under Article 13 of President's Order No. 4, the Returning Officer rejects the nomination of a candidate, or a contesting candidate is aggrieved by any proceedings under Article 37 of the same Order (No. 4), an appeal shall lie to the Commission. The validity of Order No. 13 is also in no way open to question. Mr. Fa21-i-Mahmood has called attention to Article 27 (b), which provides that an election is to be declared void by the Election Tribunal if the result of the election has been materially affected by the improper acceptance of a nomination that was invalid. Mr. Fazl-i-Mahmood appears to find some discrepancy or inconsistency between the procedure to be followed where a nomination paper is wrongly accepted by the Returning Officer and that laid down in the case of rejection, but I am unable to share his view. The difference in procedure is based on the obvious fact that in the event of improper acceptance of a nomination paper by the Returning Officer, the election need only be set aside if the result has been materially affected thereby, whereas, if a paper has been wrongly rejected, it is difficult to see how a fresh election can be avoided, it being impossible to exclude the possibility that the candidate concerned might have been elected.
44. Mr. Fazl-i-Mahmood again argues that President's Order No. 13 is in conflict with Article 171 (1) of the Constitu tion, but this contention has already been dealt with in paragraph 27 above.
45. I am, therefore, of the opinion that President's Order No. 13 is perfectly valid.
46. It will be convenient at this stage to deal with the remaining objections of the petitioners to the order of the learned Member holding that Mr. Chatha was not disqualified from standing for election to the Assembly. It is contended that he had no authority in law to set aside the order of the EBDO Tribunal and the notification of the West Pakistan Government disqualifying Mr. Chatha. This, however, is putting the matter in a misleading form. The question before the Member was whether Mr. Chatha's nomination papers had been rightly or wrongly rejected, and in order to decide that question he obviously had to consider the contention of the Returning Officer that the order of the above Tribunal stood in Mr. Chatha's way. He then proceeded to give his reasons for repelling that contention, but a reference to his order shows that he nowhere purported to quash that of the Tribunal, as contended by Mr. Fazl-i-Mahmood. This is clear from the following passage in paragraph 18 of his order, a portion of which has already been cited in paragraph 18 above :-
"The Tribunal, therefore, not only assumed jurisdiction in a matter which it did not possess, it also violated the very law under which it was acting and, therefore, it cannot be success fully urged that the order of the Tribunal, declaring that the petitioner stood disqualified, was a legal and a proper order. On the basis of that order the petitioner could not have incur red the disqualification for being a member or a candidate for the membership of any elective body and, therefore, that order, or the notification of the Government, does not stand in the petitioner's way.
The only order set aside by the learned Member was that dated the 7th of April 1962, passed by Mr. Aftab Ahmad Khan, Returning Officer.
47. Mr. Fazl-i-Mahmood proceeds to put the same argument in a slightly different form, urging that the only matter before the Member was the review of the order of the Returning Officer and that he had no power to extend the scope of his inquiry by reviewing the order of the EBDO Tribunal, which was not a Tribunal subordinate to the Election Commission. The answer already given applies with equal force to his form of the argument.
48. Pursuing the same theme, Mr. Fazl-i-Mahmood urges that the learned Member was not competent to review the proceedings before the EBDO Tribunal in the absence of the record of those proceedings. It is no doubt true that a writ of certiorari could not have been issued without calling for the record, but the learned Member at no time purported to issue any such writ.
49. The contention of Mr. Fazl-i-Mahmood that if Mr. Chatha had felt aggrieved by the decision of the EBDO Tribunal or the subsequent Government notification passed thereon, he ought to have challenged its validity, is also miscon ceived. Up to the time of the passing of President's Order No. 7 of 1962 Mr. Chatha did stand disqualified, independently of the order of the Tribunal, from standing for election to any elective body and his cause of action only arose when the disqualification was removed by the Order in question.
50. Mr. Fazl-i-Mahmood next challenges the opinion of the learned Member that even if the President could not have passed Order No. 7 of 1962 in exercise of his power under Article 229 (8) or Article 103 (2) (e) of the Constitution, he could have passed it under Article 224 (3) to remove a difficulty. It is not, however, necessary to discuss whether the above opinion is correct, since, in my view, the Order was validly passed under Article 229 (8) of the Constitution.
51. Alternatively, Mr. Fazl-i-Mahmood argues that the President nowhere stated in the preamble to the Order that any difficulty had arisen, the Order- purporting to have been issued to remove certain doubts. This contention ignores the very title of the O:der, namely, Removal of Difficulties (First Elections) Order. It may be added that the distinction between a doubt and a difficulty is extremely tenuous.
52. In paragraph 28 of Petition No. 522 Mr. Fazl-i- Mahmood draws attention to the fact that on the 30th of May 1962, Mr. Iftikhar Husain Rana (petitioner in Petition No. 710) filed an Election Petition (No. 38 of 1962) before the Election Tribunal in which, inter alia, he challenged the validity of the order of the learned Member accepting the nomination of Mr. Chatha and also alleged that the latter had been guilty of corrupt practices. In its order reported in P L D 1963 Election Tribunal (W. P.) 32, the Tribunal gave a finding that the order of the Commission accepting the nomination of Mr. Chatha was final and not amenable to further review. According to Mr. Fazl-i-Mahmood, in giving -the above finding the Tribunal refused to exercise a jurisdiction vested in it, but I am unable to accept this contention. Article 2 (2) of President's Order No. 10 clearly lays down that the order or orders passed on review under Article 2 (1) shall be final, and the Election Tribunal was bound by the order. I may also draw attention to the observation of the Tribunal in the concluding sentence of paragraph 4 of its order to the effect that learned counsel for the petitioner did not challenge the validity of President's Order No. 10. If the then petitioner himself did not challenge the order, it would be asking too much of the Election Tribunal to go into the matter on its own initiative, even if it were competent to do so. I am also, for the reasons already given, not impressed with the argument of Mr. War that the Election Tribunal alone was competent to decide the question whether the election was liable to be set aside on account of the wrong acceptance of a nomination paper.
53. Mr. Fazl-i-Mahmood has relied on the fact that he was a respondent in the election petition referred to in the previous paragraph to explain the delay in filing the present petitions, but this explanation is scarcely adequate. Although the decision of the Tribunal was not reported in the P. L. D. until May 1963, the petition was actually dismissed on the 12th of November 1962. A more probable explanation is that the petitioner was encouraged by the finding of the Dacca High Court in Fazlul Quader Chowdhury's case to file the present petitions.
54. No other argument advanced by learned counsel for the petitioners has any force. I would, therefore, dismiss the petitions, but would leave the parties to bear their own costs.
.-I agree.
.-I agree.
K. B. A.
Petition dismissed.
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