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Petition No. 64 of 1965, decided on 8th February 1966.
‑Expression "materially affected " Uncertainty imported into result of election by an illegality proved before Tribunal (i.e. reception of illegal votes)‑Election can rightly be said to have been "materially affected"‑Whole election can, in such case, be set aside.
When the Tribunal acting under the Electoral College Act, 1964 is confronted with a situation, which makes it impossible to decide the result of the election, undoubtedly, such a situation materially affects the election. The in decisive nature of the problem has a material and vital effect upon the result of the election in the light of the finding arrived at by the Tribunal. The Tribunal is competent to set aside the whole election on a mere finding that the number of votes illegally recorded in an election was equal to difference of votes between the successful candidate and the candidate receiving the next highest number of votes.
Nur Muhammad v. Khan Saheb S. M. Solaiman 49 C W N 10; 2 O'Malley and Hardcastle 77 (1874); Woodward v. Sarsons and Sadler (1875) L R 10 C P 733 and Vashist Narain Sharma v. Dev Chandra 1955 S C A 41 not applicable.
Abdul Quddus Khandker v. The Election Tribunal and Additional Deputy Commissioner, Bogra and others P L D 1966 Dacca 604 rel.
Abdul Aziz Kabiraj v. S. A. Choudhury P L D 1966 Dacca 561 and Niranjan Kumar Das v. Election Tribunal and Additional Commissioner, Khulna and others 17 D L R 321 ref.
Ahmad Sobhan with S. S. Halder for Petitioner.
Abdur Rasheed for Respondent No. 2.
M. A. Islam: Amicus Curiae.
.‑This reference arises under the following circumstances.
In Petition No. 64 of 1965, under Article 98 of the Constitution, the petitioner by the name of Ananda Bachar, challenged the legality of a decision of an Election Tribunal which had set aside the election of the petitioner as a member of an Electoral College appertaining to Unit No. 6, Fingri Union Council No. 1 within P. S. Assasuni, District Khulna. The order of the said Election Tribunal setting aside the election as a whole was also impeached in the above‑mentioned petition.
The petitioner and respondent No. 2 Abdul Khaleque had contested the said Election along with some others. The former polled the largest number of votes and respondent No. 2 obtained two votes less than him. On petitioner being declared elected, respondent No. 2, who polled the next highest number of votes, that is, two votes less than the petitioner, challenged the validity of the election on various grounds and the said election petition was heard and disposed of by respondent No. 1 who was constituted Election Tribunal for the said purpose.
Respondent No. 1, namely, the said Election Tribunal, declared that the impugned election was improperly conducted and was not held in accordance with law. He, therefore, set aside the said election.
In this Court by a petition, which has been marked as stated above, namely, Petition No. 64 of 1965, the petitioner, Ananda Bachar, has challenged the decision of the Election Tribunal, which had set aside the said election in toto.
On the 22nd of March, 1965 this Court issued a Rule nisi calling upon the respondents , to show cause why the order dated 26‑2‑1965 passed by the respondent No. 1 in Election Petition No. 49 of 1964 should not be declared to be of no legal effect and as having been made without lawful authority. This Court passed no interim order staying the holding of fresh election in pursuance of the impugned order. It appears that steps were, in fact, taken by appropriate authorities to hold an election which was scheduled to be held on the 28th April 1965. This fact was brought to the notice of the Division Bench of this Court which had issued the aforesaid Rule nisi, on the 26th April, 1965. An ad interim order staying the holding of the contemplated election was granted in the following terms:
"Let a Rule nisi issue calling upon the Respondents to show cause why the direction of the respondent No. 1 contained in his order dated 26th February 1965 in Election Petition No. 49 of 1964 for holding a fresh election of Unit No. 6 of No. 1 Fingri Union Council should not be stayed pending the hearing of the Rule in the above matter issued by this Court on the 22nd March, 1965, or such other or further order or orders passed as to this Court may seem fit and proper.
Ad interim stay is granted as prayed for.
Let the order be communicated telegraphically at the cost of the petitioner.
A. Sattar
S. D. Ahmed."
As there was a gap of practically one day only in between the proposed date of holding the election, petitioner obtained leave of the Court to communicate telegraphically the aforesaid order at the cost of the petitioner. This must have been done because of the desperate urgency of the situation. It should be noted that the petitioner did not ask for service of the order upon the relevant Sub‑Divisional Magistrate or the Presiding Officer who was actually responsible for holding the election. In the affidavit‑in‑opposition which has been filed on behalf of respondent No. 2 it has been stated that, in fact, on the 27th April, 1965 the said respondent was declared to have been elected uncontested on re‑election. It has further been averred that the said respondent No. 2 received the order of this Court on the 9th of May, 1965 staying the aforesaid re‑election.
The result has been that the election has taken place according to the impugned decision given by respondent No. 1 functioning as an Election Tribunal. Therefore, there can be no manner of doubt that because of the laches on the part of the petitioner himself, re‑election had, in fact, taken place and respondent No. 2 was declared as successful in the election without any contest. We hold that the Rule n1si issued by this Court has become infructuous and we accordingly discharge the Rule without any order as to costs.
This would have been enough to dispose of the case which has been referred to us. We would, however, like to deal with a number of points which arose out of the order that has been passed by the referring Bench on the 19th August, 1965. The points for decision as formulated by the referring Bench has been stated thus:
"Whether the Election Tribunal constituted under section 58 of the Electoral College Act is justified in setting aside election on mere proof of the fact that certain votes have been illegally received and the number of such votes exactly happens to correspond to the difference between the votes received by the elected candidate and those by the candidate who secured the next highest number of votes or whether the said Tribunal must be satisfied before it can set aside an election on the ground of illegal reception of votes that the returned candidate had some responsibility in this regard."
It would be noticed that this question covers two distinct questions. The first question as formulated above is whether it is permissible for the Tribunal, in exercise of jurisdiction conferred on it under Rule 36 (1) of the Electoral College Rules framed under section 86 of Electoral College Act, 1964, on the mere finding that the number of votes illegally recorded was equal to the difference of the votes between the successful candidate and the petitioner, to set aside the election. The second question is, whether in such an eventuality, the Tribunal must also be satisfied that the responsibility for reception of illegal votes is fastened on the successful candidate. Reference has been made to a decision of a Division Bench of this Court in the case of Abdul Quddus Khandker v. The Election Tribunal and Additional Deputy Commissioner, Bogra and others (P L D 1966 Dacca 604), to which we were parties and to two other judgments of this Court as also to two judgments of Indian Courts. Before I discuss these judg ments, it is useful to quote the precise language of rule 36 (1‑A) of the Electoral College Rules framed under section 86 of the Electoral College Act, 1964, which runs thus
"The Tribunal shall declare the election of the returned candidate or the election as a whole to be 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."
In the aforesaid case (P L D 1966 Dacca 604) this Court rejected, in limine, a petition impeaching the legality of the decision of the Election Tribunal which had set aside the relevant election under the following circumstances. Before the Election Tribunal it was alleged that the successful candidate had received two votes more than the election‑petitioner who had polled the second largest number of votes. The election‑petitioner (a phrase by which I mean the person who filed the election petition) proved that two votes NA ere illegally received at the polls. The Tribunal found that in such a situation it must be held that the result of the election had been materially affected and proceeded to set aside the election. This Court held that, from the judgment pronounced by the Election Tribunal, it was patent that no other view could have been taken by it on the facts of the case as stated above. It was held that; on proved facts of the case, an uncertainty was positively imported into the result of the election which was thus "materially affected".
However, in another decision of a Division Bench of this Court, namely, in the case of Abdul Aziz Kabiraj v. S. A. Chou dhury (P L D 1966 Dacca 561) a similar decision of the Election Tribunal was set aside although the facts were identical.
In delivering the judgment in the earlier case reported in P L D 1966 Dacca 604, Murshed, C. J., referred to the decision in Abdul Aziz's case and observed as follows: -
"We have read the judgment pronounced by this Court in the said Petition No. 89 of 1965. The ratio decidendi in the aforesaid case, as it appears from the judgment pronounced by Sayem, J., is as follows :‑
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 considerations, namely, of equity and fairness that are no considerations that can enter into the trial of an election petition under the Electorate (sic) College Act, as is evident from the rule cited above.'
In the above‑mentioned case the impugned order passed by the relevant Election Tribunal is to the following effect:
In the circumstances of the case I find that it was possible that due to personation result of the election has been affected or at least might have been affected. In all fairness, therefore, it is meet and proper that the election be declared void . . .'
It would be noted that, in the case referred to above, the Tribunal had declared the election to be void on equitable ground although it did not specifically find that the result of the election was materially affected by two illegal votes. This Court set at naught the order passed by the Tribunal on the ground that the foundation of the jurisdiction of the Tribunal to declare an election to be void was a finding that the result of the election had been materially affected. Sayem, J., further observed that it was not permissible to declare an election to be void on pure equitable grounds which would be extraneous to the requirement of law.
In the case before us the Election Tribunal has found that, there was false personation in respect of two votes, namely, a vote which had been cast in the name of a deceased voter and a vote cast in the name of a person who was physically absent from Pakistan when the election was held. The Tribunal, therefore, came to a definite finding that, in view of the narrow difference (namely, a margin of two votes) in the votes polled by the two rival contestants, the result of the election had been materially affected. On such finding the election was declared to be void. In our opinion, the Tribunal had properly exercised its jurisdiction in holding that the casting of two illegal votes by false personation had materially affected the result of the election.
There is a fundamental difference between the finding which was recorded by the Tribunal in the case cited before us (Petition No. 89 of 1965 under the Article 98 of the Con stitution) and the finding recorded by the Tribunal in the present case. In the case, under our consideration, there is a finding that the result of the election was materially affected, whereas in the other case (cited before us) there is no such finding. The absence of such a finding is the ratio of the decision in the aforesaid case which need not be discussed any further in respect of other observations made by Sayem, J. Having noticed the point of distinction, we would observe that the said decision must be confined to the fact of that case, namely, the absence of a finding as required by the provisions of Rule 36 (1‑A). We may, however, add, with great respects to the Bench which decided that case, that, in the background of that case, the finding that two votes had been cast by false personation must lead to the irresistible inference that the result of the election was, in fact, materially affected, although no such finding was recorded by the said Tribunal. We may now take leave of that case." The Court further proceeded to observe as follows:
"We are clear in our minds that the Tribunal has legitimately found that, in the context of a difference of two votes between the rival candidates, the two votes, which were recorded by false personation, had materially affected the result of the election.
The requirement of Rule 36 (1‑A) is a finding that the result of the election has been materially affected' and not a finding that the successful candidate has been adversely affected' or actually affected'. The phraseology of the Rule must be borne in mind."
It will be seen that there are certain observations in the judgment pronounced by Sayem, J., which militate against that view. Our attention has been drawn to another decision, that is, the case of Niranjan Kumar Das v. Election Tribunal and Additional Commissioner, Khulna and others (17 D L R 321). In the afore said case there was equality of votes between the successful candidate and his next rival, with the result that the result of the election was decided by lots in accordance with the rules framed in this behalf The election of the successful candidate by such process was challenged by an election petition and it was shown that a few votes were illegally received during that election. The Election Tribunal held that, in view of the reception of illegal votes, it must be held that the result of the election was materially affected and, therefore, the election was set aside because it was impossible to decide for certainty whether a decision by lot was called for. The decision of the Court as given by Salahuddin Ahmad, J., has been faithfully reported in head note of the case (17 D L R 321), which reads as follows:
"Mere proof of the fact that there has been impersonation and certain votes have been cast on the election on behalf of persons who were not present on the date of election is not enough to hold that a particular election has been materially affected by the casting of such votes. It is evident that in such a case it is difficult to discover in whose favour these votes were cast without infringing the secrecy provisions of the Electoral College Act, and unless it can be proved that such votes were cast in favour of the successful candidate, it cannot possibly be said that this election has been materially affected by the receipt of such votes."
It is clear that in ‑so far as the Abdul Quddus Khondker's case is concerned there was no dissent by the Division Bench presided over by Murhed, C. J., from what was said by A. M. Sayem, J., in the case of Abdul Aziz Kabiraj v. S. A. Chowdhury, Election Tribunal & Additional Deputy Commis sioner, Rajshahi. That case was, however, distinguished from the case under consideration. While considering these cases the present order of reference has been made.
At the hearing of this case before the present Bench we had the advantage of hearing full arguments addressed to us and, particularly, the helpful arguments addressed to us by Mr. M. A. Islam who appeared as amicus curiae.
The first thing that strikes us is that there is hardly any real conflict in the decisions that have been mentioned in the order of reference made on the 19th of August 1965. The first case mentioned in the order of reference is the case of Nur Muhammad v. Khan Saheb S. M. Solaiman (49 C W N 10). That case called for a con struction of the phrase "materially affected". Mitten, J., in delivering the judgment of the Court referred to the Borough of Hackney's case ((1874) 2 O'Malley & Hardcastle 77) and the case of Woodwardv. Sarsons and Sadler ((1875) L R 10 C P 733). It seems to us that none of these cases is quite relevant for the purpose of the enquiry before us. Then again, there has also been a reference to a decision of the Indian Supreme Court in the case of Yashist Narain Sharma v. Dev Chandra ((1955) S C A 41). This case is also not very material for our purpose, the reason being that in the aforesaid ease the challenge to the election was made on the ground of illegal reception of nomination paper. A different kind of situation arises in such a case. Moreover, the language of the Ballot Act of 1872, which is a statute of Westminster, is different from the one under our consideration. Clause 13 of the Ballot Act of 1872 runs thus:
"No election shall be declared invalid by reason of a non compliance with the rules contained in the First Schedule to this Act, or any mistake in the use of the forms in the second Schedule to this Act, if it appears to the Tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in tile body of this Act, and that such non‑compliance or mistake did not affect the result of the election.."
In Woodward v. Sarsons and Sadler the scheme of that clause has been fully discussed. It would be noticed that the English statute imposes an embargo upon the Court to declare an election to be void, except under certain exceptional circumstances. The mandate is to preserve the election, except on certain specified grounds. The further mandate of the clause is that if it is found that there has been no breach of the provisions of the Act itself, a mere non‑compliance with the rules set out in the First Schedule to that Act would not vitiate the election and render it void. Therefore the Court was required to investigate as to whether the Act itself has been complied with and, if so, whether there has been any breach of the rules. If the Court comes to a finding that there has been a breach of the rules, as distinguished from a breach of the Act itself, the Court was required to investigate further, whether the result of the election has been affected. It is important to mark the precise language of the statute. The requirement to investigate whether the result of the election has been affected, must, of necessity, mean that the result of the election has been actually affected.
We have already quoted the text of Rule 36 (1‑A) of the Electoral College Rules framed under section 86 of the Electoral College Act, 1964. It would be noticed that the mandate of the said rule is to declare the election to be void, as a legal obligation cast upon the Tribunal, if it comes to the conclusion that the result of the election has been materially affected. In the judgment pronounced by Murhed, C. J, in Abdul Quddus Khandker's case a distinction has been drawn between the phrases "materially affected", "adversely affected" and "actually affected."
The question which is raised by a situation as unfolded in the present petition before us is a simple one and may be illustrated thus A and B are two contestants to an election in which A receives one hundred votes and B ninety‑eight. B files an election petition and conclusively proves before the Election Tribunal that, in fact, two votes were illegally received during the said election, without any proof (which it is almost impossible to prove in view of the requirement of the law in this behalf) that A was actually the recipient of the said illegal votes. None theless, the fact reniuins that A has affirmatively established that two votes were illegally received. Two possibilities arise in the case mentioned above‑either one or both the illegal votes were cast in favour of B or they may have been given to A. Reception of illegal vote is a question of fact which has been conclusively proved. Furthermore, the background and circumstance of this case, as distinguished from various other kinds of cases which arise before such Tribunal, are also peculiar, namely, that there is a difference of two votes only between the successful and unsuccessful candidate. Now with respect to this difference, namely, two votes, it has already been proved that an equivalent figure, namely, two votes, were illegally received. The Tribunal must, therefore, ask itself a further question: What is the effect of this finding on the result of the election itself Has it materially "affected" the election (and I distinguish this question from the question which I had posed earlier, namely, has it actually affected the election) If the Tribunal has to decide whether the result of the election has actually been affected, then there could be no manner of doubt that it was impossible for the Tribunal to hold so because the actual result would be an uncertainty.
I now come to the original question: Has the result of the election been materially "affected" The answer must be, "yes", because the facts and circumstances establish, as a certainty, and not as a matter of speculation and surmise, that an uncertainty has been definitely injected into the result of the election. This uncertainty is a positive fact established by proved facts and the consequence is inescapable, having regard to the language of the rule.
In Abdul Quddus Khandker's case this Court has observed thus:
"When a Tribunal is driven to the position where it cannot be decided one way or the other as to what could have been the possible result of the election it must be held that the impugned votes had materially affected the election inasmuch as a cul de sac has been reached with regard to the result."
We are in agreement with the aforesaid observations for the simple reason that the facts as established by positive evidence lead to a blind ally as to the result of the election. When an uncertainty is imported into the result of an election‑and the uncertainty is imported by the illegality that has been proved, namely, by reception of illegal votes, can it be said that the result of the election has not been "affected" in the sense that it has been rendered uncertain It has been observed in the judgment quoted above, namely, Abdul Quddus Khandker's case:
"When the Tribunal is confronted with a situation which makes it impossible to decide the result of the election, there is no manner of doubt that such a situation materially affects the election. The indecisive nature of the problem has a material and vital effect upon the result of the election in the light of the finding arrived at by the Tribunal."
We may respectfully add that the indecisive nature of the situation is a result of the facts proved before the Tribunal and that it is not, in such circumstances, a matter of conjecture.
If the rule had teen that a Tribunal shall not declare an election to be void unless it finds that the result of the election has been actually affected, then our answer would have been different from the one we have given above because in such a case it could not be said that the result of the election has been, in fact, affected. Then again, if the requirement was to find, affirmatively, whether the successful candidate would have been "adversely" affected in consequence of the finding arrived at by the Tribunal, the answer would also have been different. If the result of the finding is to make the result of the election unpredictible, the very fact of such uncertainty, must be held to have materially "affected" the election. This appears to be the logic of the situation upon principles that arise out of the require ment of the rule, which applies to the present case.
The answer with regard to the first part of the question is, yes". We have, at the present moment, refrained from dealing with the case where the person who filed the election petition was not the candidate who obtained the second highest number of votes in the circumstances adumbrated above.
With regard to the second part of the question, we say that the question does, not arise. The relevant rule does not require, in the case with which we are concerned, to investigate as to whether the successful candidate was guilty of the illegality that has been perpetrated, namely, reception of illegal votes. It may be that in the case we have discussed above, it is not proved that the contestant to the election was responsible for the recep tion of the illegal votes. Nonetheless, illegal votes have been received and the result of such reception is that the election has been materially affected in the sense we have indicated above. In the case discussed above, it is the duty of the Court, under the rule quoted above, to pronounce the election to be void. When the inevitable result of what has been proved is to import, also a positive fact, an uncertainty into the result of the election, it must be said that the election has been materially "affected".
This disposes of the questions, which have been posed before us.
We have already discharged the Rule without any order as to costs. The case is thus disposed of in terms of the order made above.
.‑I agree.
.‑I agree.
K. B. A.
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