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Writ Petition No. 647 of 1965, decided on 31st May 1966.

S. 23 (3) (iii) read with Electoral College Rules, 1964, rr. 14, 19 & 36(1‑A) Electoral roll revised and duly published‑Election has to be held on basis of such roll‑ Objection that voter was minor‑Cannot be taken in election petition.

Imtiaz Ali v. Ghulam Muhammad Butt P L D 1958 S C 228 and Ghulam Abbas v. Additional Commissioner, Khanpur P L D 1965 Kar. 625 rel.

S. 60 read with r. 36(1‑A), Electoral College Rules, 1964‑Election set aside on ground that certain persons cast their votes twice; once in another electoral unit and second time in electoral unit in respect of which election was in dispute‑Election petition containing no such allegation‑No evidence on record in support of allegation‑Order setting aside election ,illegal‑Election Tribunal in dealing with election petition performs judicial functions and thus should act in mariner which is consistent with hell recognised principle of justice, equity and fair play.

Muhammad Saeed v. Election Petition Tribunal, West Pakistan and others P L D 1957 S C 91 and Anwar v. Crown P L D 1955 F C 185 fol.

Muhammad Akram v. C. A. Saeed P L D 1965 Lab. 703 and Board of Education v. Rice 1911 A C 181 rel.

S. 87‑Transfer of election petition‑No provision in Act for transfer of election petition‑Chief Election Commissioner not competent to direct Chairman, Provincial Election Authority to exercise power of transfer.

‑Delegate not competent to delegate his authority to any other person.

S. 59‑Election petition pending before Additional Commissioner transferred by Commis sioner to Deputy Commissioner not competent to pass such order‑Consequent order by Deputy Commissioner held, without jurisdiction.

Rafiq Ahmad Sheikh for Petitioner.

Advocate‑General with Manzar‑i‑Alam (on 20th January 1966) for Respondent No. 1.

Syed Mahmood Shah for Respondent No. 2.

Dates of hearing: 19th and 20th January 1966.

The petitioner and respondent v. No. 2, Ramzan, contested election for the Electoral College from Electoral Unit No. 80, District Mianwali. The election was held on the 9th of November 1964. The petitioner was declared elected having obtained 331 votes as against respondent who secured only 306 votes. Respondent filed election petition and the Tribunal, respondent No. 1, by its order dated the 8th of April 1965 accepted the same and ordered the election of the petitioner to be void. The petitioner has filed this petition under Article 98 of the Constitution asserting that the order of the Tribunal was without lawful authority.

2. The operative part of the order of the Tribunal is:‑

"In view of the fact that it has been proved that a large number of voters, about 26 of them, were minors and that there were some who had cast their votes twice, once in another Electoral Unit and second time in this Electoral Unit and in view of the other irregularities committed, the election petition must succeed and it is ordered that the election would be held void."

The parties were given an opportunity to lead evidence. Respon dent did not examine any witness. He merely produced birth entries of 28 persons and a school certificate of the: Headmaster indicating the age of about 14 persons. There was no evidence led to connect the entries in the birth register or the school certificate with the persons who were entered in the electoral roll for the said unit. These documents, however, furnished not evidence to prove that any of the voters who cast his vote in favour of the petitioner was a minor. The finding of the Tribunal that minors had cast votes in favour of the petitioner is, therefore, based on no evidence.

Even‑ if the birth entries and the school certificate had been proved to relate to the persons who were entered in the electoral roll, then too the Tribunal could not question the validity of the entries in the‑ electoral roll. It was held in Imtiaz Ali v. Ghulam Muhammad Butt (P L D 1958 S C 228) that after an electoral roll has been revised and duly published, no further objection could be taken to it, and the election was to be held on the basis of that roll. The precise question under the Electoral College Act has been considered in Ghulam Abbas v. Additional Commissioner, Khairpur (P L D 1965 Kar. 625) and his Lordship the Chief Justice observed:‑

"The finality that has been given to the orders passed by the Revising Authority against any objection as to any entry in the electoral roll cannot be gone into by another authority, namely, Election Tribunal that has been created under the same Rules and the Act. The Election Tribunal is bound by the Rules framed by the Central Government.

" It was further observed as:‑

a person who is enrolled on the electoral roll has got a constitutional right to elect a member from an electoral unit. This, to our mind, cannot be taken away by the Election Tribunal by re‑opening the entries of the electoral roll. In this connection a reference may be made to the definition of voter' given under the Electoral College Act. It means in relation to an electoral unit, a person whose name for the time being appears on the electoral roll for that unit. A person whose name appears on the electoral roll has, as we have already observed, a constitutional right to cast vote in accordance with Article 15 of the Constitution so long as his name is not removed from the electoral roll in accordance with the procedure provided in the Act:

We 'would also like to observe that the intention of the framers of the rules and the Act was to attach conclusiveness and finality to the electoral roll. That this is so appears from the Act as well as from the rules that no provision has been made for making a voter a. party in the election petition. If the intention was to allow a candidate to challenge the electoral roll in an election petition, it would have been provided that the voter, whose right to remain on the electoral roll is challenged, should be made a party. The. Election Tribunal cannot defranchise a person whose name appears on the electoral roll without giving him an opportunity to be heard. The right of franchise conferred under Article 157 is a constitu tional one which cannot be taken away without affording an opportunity to the voter. This would be against the maxim "audi alteram partem. In this connection we may also observe that where the rules have provided a thing to be done in a particular manner it is to be done in the 'same way or not at all. The rules provide a certain procedure for the removal of the name of a voter from the electoral roll. The effect of the order of the Election Tribunal would be to remove a certain person from the electoral roll. That he could not do except as provided under the rules and the Act."

3. The other ground taken by the Tribunal was that certain persons had "cast their votes twice, once in another Electoral Unit and second time in this Electoral Unit". Our attention was drawn by the learned counsel for the petitioner to the election petition filed by the respondent. He had made no such allegation in his petition. The Tribunal, therefore, could not make this as the basis for the decision when the respondent had not raised this as a ground for setting aside the election. It is also not understandable as to how the Tribunal could arrive at such decision when no evidence whatsoever was led in this respect. By the setting aside of the election the petitioner has been deprived of a very valuable right which was created in his favour by the said election. The Tribunal in dealing with the election petition was indeed performing a judicial. function. It had, therefore, to act in a manner which was to be consistent with the well recognised principles of justice, equity and fairplay. In dealing with the functions of the Tribunal and as to how it is to act, Mr. Justice Muhammad Munir in Muhammad Saeed v. Election Petitions Tribunal, West Pakistan and others (P L D 1957 S C 91) observed as:

.if the Tribunal has made no honest effort to arrive at a correct conclusion or has come to a decision which no reasonable body could ever have come to or has, on no evidence, recorded findings which have deprived persons of important constitutional rights the exercise of which is the very basis on which the whole constitutional fabric rests, this Court. will be acting in betrayal of the constitution if on any such case being made out did not interfere with the verdict of the Tribunal."

The High Court in Muhammad Akram v. C. A. Saeed (P L D 1965 Lah. 703) adopted the observations of Lord Lorrburn, L. C. in Board of Education v. Rice (1911 A C 181) viz:

" they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it was a trial . . . . . They can obtain infor mation in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."

And held:

The proceedings before an administrative Tribunal rest on lower plane than the proceedings before the Election Tribunal, which is a tribunal of special jurisdiction performing judicial functions."

The order passed by 'the Tribunal in this case is anything but a judicial order. It is passed on no evidence and is absolutely arbitrary. The Tribunal was under a statutory obligation to have held the enquiry as is contemplated in rule 26 of the Electoral College Rules. read with section 60 of the Act. The enquiry was to be a summary one but in this case nothing whatsoever was done. The order is without any legal basis and is, therefore, without lawful authority.

4. Towards the conclusion of the hearing, it was brought to our notice that the Tribunal had no jurisdiction in this case. The Tribunal is appointed under section 59 of the Electoral College Act which reads as:‑

"59. Appointment of Tribunal.‑(1) For the trial of election petitions, the Commissioner shall, by notification in the official Gazette, appoint an officer to be an Election Tribunal for such area as may be specified in the notification.

(2) 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."

The Commissioner bad delegated his powers under section 83 to the Chairman, Provincial Election Authority. The Chairman of the Provincial Election Authority by a Notification No. 70 (1) PEA/ 64, dated the 21st of November 1964 appointed the Additional Commissioner (Revenue), Sargodha as the Tribunal. The respon dent filed the election petition before the Tribunal.

Subsequently by another notification dated the 20th February 1965, the Chairman of the Provincial Election Authority appointed each Divisional Commissioner and each Deputy Commissioner in West Pakistan to be the Election Tribunal for the areas within their respective jurisdiction. These Tribunals were in, addition to Election Tribunals already appointed under Provincial Election Authority Notification No. 70 (1) PEA/64, dated the 21st of November 1964.

5. The Additional Commissioner, Sargodha, was seized of the matter. The case came up before him on the 8th of January 1965, 23rd of January 1965 and on the 20th of February 1965. On the 20th of February, he directed that the case would be heard at Mianwali. On that date instead of the Additional Commis sioner hearing, the case as a Tribunal, it came up before the Deputy Commissioner and the subsequent proceedings took place before him. The ‑ Deputy Commissioner presumably acted in pursuance of the notification dated the 20th of February 1965, referred to above. As to how the matter came up before the Deputy Commissioner is not clear. There is no order of transfer on the record nor is it indicated on the record that the Additional Commissioner transferred the case himself or that it was transferred at the instance of some (other party. The Secretary, Provincial Election Authority, West Pakistan, produced before us a letter of the Chairman of the Provincial Election Authority, dated the 22nd of February 1965, addressed to the Commissioner asking him to distribute the work pending among the different Tribunals. The Divisional Commissioners were also asked to intimate, the number of election petitions assigned to each Election Tribunal, to the Provincial Election Authority.

6. The position which emerges from these facts is that the Additional Commissioners were constituted the Election Tribunals by the notification dated the 1st of November 1964. The Provincial Election Authority subsequently also appointed the Commissioners and the Deputy Commissioners to be the Tribunals by a notification dated the 20th of February 1965. An election petition in respect of an election from an Electoral Unit under clause (3) of section 58 of the Electoral College Act was to be presented to the Tribunal appointed under section 59 in a prescribed manner. The election petition had to be filed within fifteen days of the publication of the names of the returned candidates under clause (2) of section 46 of the Act. The Electoral College was constituted by a notification dated the 21^st of November 1964 and the Presidential Election was held through the Electoral College on the 2nd of January 1965. The names of all the successful candidates, under the circumstances, must have been published in the official Gazette before that date. Since they had to file the election petitions within fifteen days of such publication, it is not conceivable that any election petition could be directly filed before the Commissioners or the Deputy Commissioners who had, in this behalf, been appointed as Election Tribunals by the notification dated the 20th February 1965. The election petitions, therefore, as a matter of course must have been filed before the Additional Commissioners who at the relevant time were the Tribunals constituted under the electoral College Act. The Commissioners and the Deputy Commissioners, therefore, could only hear the election petitions if it was possible to transfer the petitions from the Tribunals before whom they were pending. Admittedly, the Chief Election Commissioner or the Provincial Election Authority did not transfer any case to the Tribunals so constituted from the Additional Commissioners. What appears to have happened is that the Commissioners, acting under the directions of the Provincial Election Authority, distributed among the different Tribunals the election petitions which were already pending before the Additional Commissioners.

7. There is no provision in the Act for transferring the election petitions from one Tribunal to another. It contemplates of one situation when a case may be heard by a Tribunal other than the one before which the election petition was filed. Under the Act, only an officer can be appointed as a Tribunal. He may be succeeded by another officer which may happen either on account of his death, resignation, retirement or removal. In such a case the election petition is to be heard by his successor‑in office under section 58 (2) without resorting to a de novo trial.

It is strange indeed that there should be no provision in the Act for the transfer of a case from one Tribunal to another. An officer appointed as a Tribunal may be disqualified to act in a particular election petition for many reasons. He may be under an influence brought about by his own act or by the act of another which has the effect of paralysing his judicial faculties. Bias in a Judge as held in Anwar v. Crown (P L D 1955 F C 185) is the paralysis, complete or partial, of judicial faculties. In judicial matters it may spring from personal or any other considerations. In a particular case, there may exist circumstances which are likely to cause a reasonable apprehension in the mind of a party to an election petition that he will not have a fair trial at the hands of a certain person. It is fundamental principle of the administra tion of justice that it not only must by done but seem to be done, and however right such a person deciding the case may be, neither the public nor the aggrieved party will be satisfied with his adjudication. The Legislature has always taken notice of such an eventuality in all cases where the Tribunals are constituted to decide cases of judicial or quasi judicial nature. In fitness of things there should have been an express provision in the Act for empowering someone to transfer the election petition from one Tribunal to another.

Reliance was, however, placed on behalf of the respondent, on a letter of the Chief Election Commissioner, dated the 3rd of May 1965, whereby he authorised the Chairman, Provincial Election Authority to consider the requests for transfer of election petitions and directed that wherever he felt convinced that the transfer of a petition from one Tribunal to another was necessary in the interest of fairness of election, he could do so, to contend that the directions were given by the Chief Election Commissioner under section 87 of the Act which reads as:‑

"87. Directions by Commissioner in certain cases.‑Where this Act makes any provision for anything to be done, but no provision or no sufficient provision has been made as respects the authority by whom, or the manner in which, it shall be done, then, it shall be done by such authority and in such manner as the Commissioner may direct."

The power under section 87 could be exercised only if there was a provision for the transfer in the Act but there was no provision as respect the authority by whom or the manner in which it was to be exercised. Since there is no provision in the Act for the transfer of an election petition, the Chief Election Commissioner could not under section 87 direct the Chairman, Provincial Election Authority, to exercise this power.

Assuming that the Chief Election Commissioner was competent to give this direction under section 87, then too the Chairman, Provincial Election Authority, had to exercise himself.

He directed the Commissioners to exercise this power. He being the delegate himself, could not delegate his authority to any other person. Moreover, under this direction, the Chairman, Provincial Election Authority, had to exercise the power of transfer with reference to each election petition and not that help could transfer the cases in bulk from one Tribunal to another.

8. It was next contended that the Chairman, Provincial Election Authority, had been delegated by the Chief Election Commissioner his powers under section 82. Section 82 reads as:

" 82, Commissioner to ensure fair elections, etc.‑Save as otherwise provided the Commissioner may issue such instruc tions and exercise such powers including the power to review an order passed by any officer under this Act or the rules, and make such consequential orders as may, in his opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of this Act and the rules, and that corrupt practices are guarded against."

By virtue of the delegation, the Chairman, Provincial Election Authority could issue the instructions and also exercise any power which in his opinion was necessary for ensuring that an election is conducted honestly, justly and fairly. The election means a valid election. The election, therefore, is not concluded by the declaration of the result. There may be disputes about an election and they may arise in connection with the count or other matters. When a provision is made for the con situation of an Election Tribunal to hear the election petitions in respect of such disputes, it is with a view to achieving the object that the election "is conducted honestly, justly and fairly." With the decision of the election petition, all the stages of the election are completed. To achieve the object that the election is held honestly, justly and fairly, it is also necessary to see that the Tribunals constituted to hear the election disputes are not disqualified to hear the petitions by reason of the personal bias, partiality or any other defect. In such a case, if the Chief Election Commissioner or his delegate acts under section 82 of the Act and transfers a case from one Tribunal to another, the exercise of that authority by him, under the circumstances, will be covered by the provisions of section 82. The authority, therefore, has to be exercised by the Commissioner himself or his delegate, the Chairman, Provincial Election Authority. The latter could not further delegate this authority by instructions to any other officer. It was, therefore, not competent for the Chairman of the Provincial Election Authority to have asked the Commissioners to distribute the election petitions among the different Tribunals, and thus the transfer ordered by the Commissioner, as a result of the distribution of the election petitions among different Tribunals, is without any lawful basis.

9. The election petition was pending before the Additional Commissioner, Sargodha. He was seized of the matter. The case was transferred from him to the Deputy Commissioner, Mianwali, by the order of the Commissioner, Sargodha. The G Commissioner, Sargodha, was not competent to have passed this order. Consequently, the Deputy Commissioner to whom the petition was transferred by the Commissioner had no jurisdiction to hear and decide this election petition. The proceedings before him vitiate.

10. In the view of the matter we take, the order of the Tribunal dated the 8th of April 196.5 is without jurisdiction and at any rate it is inflagrant violation of section 60 of the Act. The petition is accepted with costs and the order is declared as without lawful authority and of no legal effect. The Additional Commissioner, Sargodha, is directed to decide the election petition on merits.

K. M. A. Petition accepted.

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