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Writ Petition No. 201 of 1965, decided on 11th August 1965.

Ss. 53(1)(i), 61, 62 & 2(6)‑Words "corrupt or illegal practice" and "any election" in S. 53(1)(i)‑Corrupt or illegal practice must be one as defined in Ss. 60 & 61 and "any election" must be one held under Act -Candidate failing to submit return of election expenses in election held under National and Provincial Assemblies (First Elections) Order, 1962 and found guilty of illegal practice under Article 54 of that Order‑Not disqualified from contesting election under Electoral College Act, 1964‑National and Provincial Assemblies (First Elections) Order (4 of 1962), Art. 54.

, Art. 6, Fundamental Right No. 4‑Retrospective punishment even of different kind than provided by present law comes within mischief of Fundamental Right No. 4.

Art. 6, Fundamental Right No. 4 ‑ Disqualification preventing person from exercising his right of franchise or, right to an elective office‑Whether punish ment within mischief of Fundamental Right No. 4 [Quaere]‑Elec toral College Act (IV of 1964), S. 53.

Jamalus Sattar v. Chief Election Commissioner P L D 1964 Dacca 788; John A. Cummings v. The State of Missouri 18 Law. Ed. 356; Banjamin Hawker v. People of the State of New York 42 Law. Ed. 1002; Hobbs v. Morey (1904) 1 K B 74 and Pritchard v. Mayor etc. of Bangor (1888) 13 A C 241 ref.

Words used in enactment must receive uniform interpretation wherever they occur unless context requires different interpretation.

Penal measures or provisions imposing burden or involving curtailment of rights‑To be strictly construed.

, Ss. 58 & 60‑Election of candidate set aside by Tribunal on ground of disqualification attaching to him ‑ Disqualification not manifest or patent but unearthed after investigation‑Tribunal, in circumstance, cannot treat votes of disqualified candidate as merely thrown 'away and declare candidate securing next highest number of votes as elected.

Ahmad Sobhan with Abu Taher Chowdliury for Petitioner.

Farid Ahmad for Respondent No. 2.

Quazi Shafiuddln for Respondent No. 3.

Maksum‑ul‑Hakim Advocate‑General with Moazzem Hossain and D. C. Bliattacharjee : Amicus curiae.

Dates of hearing: 27th July, 9th and 11th August 1965.

.‑Petitioner, Saheb Mia Chowdhury, contested an election to the electoral college from Unit No. 3 of Hoanak Union Council No. 3, P. S. Maheshkhali, District Chittagong, under the Electoral College Act, 1964 (hereinafter called the Act). His nomination was duly accepted and he contested the said election against respondents Nos. 2 and 3. He polled the largest number of votes and was declared elected by the Returning Officer. Subsequently respondent No. 2 filed an election petition challenging the election of the petitioner on the ground, inter alia, that he (the petitioner) was disqualified from being a member of the electoral college .on the ground that the peti tioner (who was the opposite‑party in the Election Petition) having failed to submit a return of his election expenses with regard to a previous election, was convicted under President's Order No. IV of 1962, (hereinafter called the Order) and was sentenced to pay a fine of rupees fifty. Although he was not disqualified for future elections by the Chief Election Commis sioner under section 79 of the Order, non‑submission of election return amounted to "illegal practice" under the said Order and not under the present Act, namely, the Electoral College Act, 1964. Respondent No. 2 also prayed that he might be declared elected in the aforesaid election because he also ran the race and polled the second largest number of votes.

Under the law the Additional Deputy Commissioner (Revenue) of Chittagong was constituted into an Election Tribunal to hear such election petitions. The Election Tribunal, namely, respondent No. 1, came to a finding that the petitioner had not submitted a return, within the period specified by law, of his expenses in respect of an election to the Provincial Assembly, which was contested by him some years ago and was, therefore, convicted under the prevailing law, for not submitting the afore said return. Petitioner was sentenced to pay a fine of Rs. 50 The Chief Election Commissioner, who was legally authorised to impose a disqualification upon him, on such conviction, however, did not inflict any such disqualification on him. The Election Tribunal also found that under President's Order No. IV of 1962, non‑submission of return as to election expenses was "illegal practice" within the meaning of the said Order notwithstanding the fact that under the Electoral College Act such non‑submission of return does not amount to illegal practice. The Tribunal travelled from President's Order No. IV of 1962, to the Electoral College Act, 1964, and, applying the provisions of section 53(1) (i) of the said Act, set aside the election of the petitioner. Respondent No. 2 was declared to be elected in the impugned election to the Electoral College. Against the aforesaid order petitioner obtained the present Rule nisi.

At the hearing of the Rule it was argued that section 53(1)(i) of the Act had no manner of application to the facts of this case. It appears to us that the Election Tribunal misdirected itself in applying the provisions of section 53(1)(i) to the said election petition. The basic fact is that the present election was held under the said Act and not under President's Order No. IV of 1962. The present Election Tribunal had dovetailed the said Act and the Order in a manner which, in our opinion, is not warranted by law.

Section 53(1)(i) of the Act runs thus

"(1) A person shall be disqualified from being, or being elected as, a member of the Electoral College for any electoral unit if‑ . . . . ."

"(i) he has been convicted of a corrupt or illegal practice relating to any election, unless a period of two years, or such less period as the Central Government may, by notification in the official Gazette, specify in this behalf, has elapsed from the date of expiration of the sentence, or, in the case of a sentence of fine only, from the date of conviction."

It is obvious that clause (i) of subsection (1) of section 53 of the Act refers to "corrupt practice" or "illegal practice" as defined in sections 61 and 62 of the said Act. Non‑submission of election return is neither "corrupt practice" nor "illegal practice" within the meaning of the Act, but it amounted to "illegal practice" within the mischief of the Order. Furthermore, section 53(l)(i) speaks of corrupt or illegal practice in relation to "any election" which, of necessity must mean "any election" held under the said Act, and not all kinds of elections under various other provisions of law. Section 2(6) of the Act reads thus:

" election' means an election to the Electoral College held under this Act."

Thus, there are two patent difficulties in applying the Electoral College Act to the facts stated above. In the first place, the requirement of section 53(1)(i) is that the petitioner must have been convicted of corrupt or illegal practice within the meaning of the Act and, secondly, the illegal or corrupt practice referred to above must have been in relation to the present election under the Electoral College Act and not with regard to any other election held under a different law.

Mr. Farid Ahmad, appearing on behalf of respondent No. 2, has argued that the expression "any election" in clause (i) of subsection (1) of section 53 of the Act means any election what soever, including elections held under some other distinct and separate provisions of law. When the Act itself has defined the term "election" there is no warrant for making a departure from such statutory definition of the expression in order to travel to all sorts of elections. Where are we to draw the line

Even if we were to accept the contention of Mr. Farid Ahmad on this point, petitioner could still urge that "illegal practice" within the meaning of section 53(1)(i) must mean "illegal practice" as defined in the Act itself. We, however, think that the word "election" in section 53(1)(i) must be confined to its definition as given in the Act itself and that similarly we must look to the Act (section 62) to ascertain the meaning of the expression "illegal practice".

There is another objection to the interpretation given by Mr. Farid Ahmad. If any election is construed to mean all manner of elections, section 53(l)(i) might militate against the provisions of paragraph 4 of the Fundamental Rights appended to the Constitution, which reads thus:

"4. Protection against retrospective punishment.

No law shall authorise the punishment of a person‑---

(a) for an act or omission that was not punishable by law at the time of the act or omission; or

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed."

A Division Bench of this Court in the case of Jamalus Sattar v. Chief Election Commissioner (P L D 1964 Dacca 788) held the view that a disqualifica tion of the aforesaid description amounted to "punishment" within the meaning of the Constitution.

Mr. Farid Ahmad has argued that a disqualification, which prevents a person from exercising his right of franchise or a right to an elective office is not a punishment within the mischief of the Article of the Constitution as set out above. Without entering into details it is sufficient to state that a disqualification imposed with regard to the membership of an Assembly may operate as a punishment if, upon conviction, in relation to a pure election offence, a greater penalty is inflicted than what was permissible at the time when the said offence was committed. The position will also be the same if subsequently the penalty imposes a more onerous burden than what was previously inflicted upon him. If the disqualification is a mere domestic wall to bar entry into an elective body, it may not come within the mischief of fundamental rights as stated above. But, in this case the petitioner before us, upon conviction for not submitting election return, was sentenced to pay a fine of rupees fifty and was expressly exempted from incurring any disqualification on the said ground from contesting an election. To‑day upon a pretended application of another law he is said to have incurred such disqualification on the pelf‑same ground. The Constitution bars the imposition of a retrospective punishment. The decision in the case of John A. Cummings v. The State of Missouri (18 Law. Ed. 356), and the case of Banjamin Hawker v. People of the State of New York (42 Law. Ed. 1002) would illustrate what we have stated above. It is, however, not necessary to pursue this point any further.

Mr. Farid Ahmad has further argued that under the provi sions of the said Order non‑submission of election return entailed certain kind of disqualification and, therefore, there could be no question of an additional punishment within paragraph 4 of the Fundamental Rights enumerated in the Constitution. But the punishment, which the former law has provided, was of a kind different from the one which is provided under the present law. Even a retrospective punishment of a different kind comes within the mischief of the Constitution.

We may take leave of this case by saying that an accepted rule of interpretation is that words must receive a uniform inter pretation wherever they occur in any particular enactment unless the context requires a different interpretation. There is nothing in section 53(1)(i) of the Act which requires that that definition of the term "illegal practice" expressly stated in the Act would not be available in construing the said section. Besides, this case attracts another cannon of construction, namely, penal measures or provisions which impose a burden or involve curtailment of rights must be strictly construed. We hold that the expressions "illegal practice" and "election", as used in section 53(1)(i), must receive the meaning which has been assigned to them by the Act and that there is no justification for ignoring the definition furnished by the statute itself. In this view of the matter, paragraph 4 (quoted above) of the category of Fundamental Rights appended to the Constitution is not called into operation.

Lastly, it was argued, on behalf of the petitioner, that the Election Tribunal acted illegally in declaring respondent No. 2 as the elected candidate. It has been pointed out that the petitioner was not manifestly and patently disqualified on the face of his nomination paper if, upon investigation, he has been held to be so disqualified. It was not the kind of disqualification which was apparent to the voters who had elected him. It could not, therefore, be said that the voters had knowingly thrown away their votes. In these circumstances, it was submitted that the Tribunal could not declare respondent No. 2 as the successful candidate. Mr. Ahmed Sobhan has referred to the case of Hobbs v. Morey ((1904) 1 K B 74). We think that this case and the case of Pritchard v. Mayor etc. of Bangore ((1888) 13 A C 241) support the point canvassed on behalf of the petitioner. The votes cast in favour of the petitioner, in the circumstances discussed above, could not be treated as votes which were thrown away by voters. There is substance in this contention of the petitioner. In any event, having held that the election of the petitioner has been illegally set aside, it must also be held that declaration of the election in favour of the respondent No. 2 was also bad.

The result is that we make the Rule absolute and declare that the order dated the 8th of June 1965, passed by respondent No. 1 in Case No. 17 of 1964, was made without any lawful authority and is of no effect. We, however, make no order as to costs of this application.

We would like to acknowledge the assistance which we had received from learned lawyers who appeared for the parties before us and also from learned Advocate‑General of East Pakistan, who appeared amicus curiae at our request.

The prayer made under Article 58(2) of the Constitution for a certificate as to the fitness of the case for appeal before the Supreme Court is refused.

‑I agree.

K. B. A. Rule made absolute.

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