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Writ Petition No. 147 of 1965, decided on 4th May 1965.

S. 59‑Delegatee of Chief Election Commissioner‑Cannot further delegate powers delegated to him‑Election Tribunal appointed under section 59‑Has no power to transfer matter pending before him to any other Election Tribunal of competent jurisdiction‑Successor‑in‑office must succeed one who has ceased to exist‑Two Tribunals co‑existing‑One cannot be said to succeed the other.

Ibrahim Memon for Azizullah Shaikh for Petitioners.

Muhammad Halim A. A.‑G. assisted by Mazhar Ali for Respondents Nos. 1 and 2.

Date of hearing: 4th May 1965.

This is a petition under Article 98 of the Constitution. The facts giving rise to the petition briefly put, are these: The petitioner, Mir Muhammad, contested election to the Electoral College from Unit No. 93, District Jacobabad, and petitioner Haji Ata Muhammad from Unit No. 85, District Jacobabad. After the polls were taken, the petitioners were declared successful. The respondents 3 and 4 filed election petitions before the Additional Commissioner, Khairpur Division, who was appointed as an Election Tribunal under section 59 of the Electoral College Act, 1964, for the entire Khairpur Division. The petitioner, Ata Muhammad, received notice from the Election Tribunal and the Additional Commis sioner, Khairpur Division, in respect of the election petitioner against him for 9th March 1965. He appeared before the learned Election Tribunal. He, however, was directed by the Additional Commissioner to appear before the Deputy Commissioner who had also been appointed an Election Tribunal.

2. The petitioner, Mir Mohammad, received a notice from the Additional Commissioner (Election Tribunal) in respect of the election petition against him to appear before him on 9‑3‑1965. He was also directed to appear before the Deputy Commissioner (Election Tribunal).

3. The petitioners filed a petition in this Court on 16‑3‑1965. He merely challenged the authority of the Election Tribunal (Additional Commissioner, Khairpur Division) to transfer the election petition pending before him to another Election Tribunal. The petition was admitted on 24‑3‑65 for consideration of the question whether the Election Tribunal (Additional Commissioner, Khairpur Division) has any authority or power to transfer an election petition pending before it to another Election Tribunal of competent jurisdiction.

4. We have heard the learned Advocates for the parties as to the authority and power of one Election Tribunal to transfer a petition pending before it to another Election Tribunal. We are of the view that one Election Tribunal under the Electoral College A Act or the Rules made thereunder has no power to transfer a matter pending before it to another Election Tribunal. In this connection, the learned Assistant Advocate‑General, Mr. Haleem, contended that the Provincial Authority had jurisdiction to transfer the election petition pending before one Election Tribunal to another Election Tribunal. It is not necessary for us to go into the validity of this submission, as we are of the view that in the present case the election petitions were not transferred by the Provincial Election Authority but by the Election Tribunal itself.

5. In order to dispose of this contention a brief reference may be made to certain provisions of the Electoral College Act, 1964. Under section 3, the Commissioner (the Chief Election Commis sioner) has the power in consultation with the Provincial Government; to appoint a Provincial Election Authority for the Province. Under sub‑clause (2) of the same section, a Provincial Election Authority shall exercise such powers and perform such functions under the Act as may be delegated to it by the Commissioner. The admitted position is that the Chief Election Commissioner has, among other functions, delegated its authority under section 59 of the Act to the Provincial Commissioner. Under section 59, the Commissioner has the power to appoint an officer to be an Election Tribunal for such area as may be prescribed in the notification. Mr. Haleem relied on a letter which he produced before us today dated 22nd February 1965, addressed by Mr. Afzal. Agha, C. S. P. Chairman, Provincial Election Authority, West Pakistan, to all Divisional Commissioner West Pakistan. It would appear from this, letter that he (Mr. Agha) appointed the Commissioners, the Additional Commis sioners and Deputy Commissioners, as Election Tribunals in the various Divisions of West Pakistan. The relevant portion of this letter reads as under:‑--

"The election petitions pertaining to your Division may be distributed by you between the three Tribunals. Whenever the number of election petitions in a district is very large, there is no bar to a portion of such election petitions being assigned to the Additional Commissioner or the Commissioner even though the orders passed by the Deputy Commissioner are not involved. The intention is that the work should be distributed evenly amongst these Tribunals so that the disposal of election petitions is expedited."

Mr. Haleem relied on the above direction of the Chairman, Provincial Election Authority, West Pakistan, in support of his contention that the petitions were transferred by the Provincial Authority itself.

6. It is difficult to construe from what is stated above that the Provincial Election Authority had transferred the petitions in question to another Election Tribunal. What is stated above by the Provincial Election Authority is that the Divisional Commis sioners could transfer the petitions pending before one Tribunal to another Tribunal.

7. The next question would be in view of the directions of the Provincial Election Authority whether the Provincial Election Authority could delegate the power to transfer election petitions '(if it had such a power) from one Tribunal to another Tribunal. We are clearly of the view that a delegated has no power in the absence of any provision of law under the Electoral College Act and the Rules made thereunder, to further delegate the power delegated to it by, the Chief Election Commissioner to any other B authority. In that view of the matter, we are of the opinion that the Election Tribunal (Additional Commissioner) had no authority or power to transfer the election petitions pending before it to another Election Tribunal.

8. In the next place it was contended by the learned Assistant Advocate‑General that the Election Tribunal (Deputy Commissioner) to whom the election petition was transferred by the Additional Commissioner (Election Tribunal) should be deemed to be the successor Tribunal to the Additional Commis sioner within the meaning of sub‑clause (2) of section 59 of the Electoral College Act. In order to appreciate the contention of the learned Assistant Advocate‑General, it would be useful to reproduce subsection (2) of section 59 of the Act, which reads as under:‑--

"Where the person constituting an Election Tribunal is succeeded by another, 'the trial of a petition shall continue before the person so succeeding and any evidence already recorded shall remain upon the record and it shall not be necessary to re‑examine the witnesses who have already been examined and discharged."

To us, the above provision appears to be very clear. The Tribunal to whom the election petition is transferred cannot be said to be a successor Election Tribunal to the one who was dealing with the matter. The above provision contemplates a situation where one Election Tribunal has ceased to exist and is replaced by another Tribunal. It is only to meet that situation that the Legislature has made provision in order to safeguard the interest of the parties and to save time that evidence already recorded shall remain upon the record and shall not be necessary for the succeeding Tribunal to re‑examine the persons who were already examined and discharged. If two Tribunals are co‑existing together, the one cannot be said to have 'succeeded the other: No other point was urged on behalf of the respondent.

9. The result is that the election petition of the respondents continues to be on the file of the Additional Commissioner (Election Tribunal), Jacobabad. The Election Tribunal to dispose of the matter according to law. We make no order as to costs.

K.B.A. Petition accepted.

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