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Civil Petition for Special Leave to Appeal No. 56‑D of 1968, decided on 21st August 1968.

(On appeal from the judgment and order of the High Court .of East Pakistan, Dacca, dated the 1st February 1968, in Petition No. 231 of 1966).

Art. 98‑Election of Chairman to Union Council‑Person withdrawing his election petition on basis of compromise‑High Court, in circumstance, whether justified in setting aside findings of fact on matter having been re agitated by that person in writ jurisdiction‑Special Leave to Appeal granted by Supreme Court to consider question.

Asrarul Hossain, Advocate‑General East Pakistan (A. Huq, Advocate Supreme Court with him) instructed by A. W. Mian, Attorney for Petitioner.

Nemo for Respondents.

Date of hearing : 21st August 1968.

The facts giving rise to this petition for special leave to apReal are shortly as follows :‑

The election of the Chairman of Halidhani Union Council P. S. Jhaniadah, district Jessore, took place on the 25th August 1965. Respondent, Rustam Ali, and respondent, Nurul Haque Joardar, were the two candidates at the said election and the former having secured 8 votes as against 7 votes by the latter was declared elected. Nurul Haque challenged the said election before the Collector, but eventually he prayed for withdrawal of the case and his prayer was allowed. Nurul Haque then filed a petition for restoration of this case, but ultimately he did not pursue the matter and filed an appeal before the Commis sioner, against the order allowing withdrawal of the petition. In the appeal he challenged the said order on the ground that the clerk of his lawyer has filed petition for withdrawal without his knowledge. The Additional Commissioner, who heard the appeal, while disbelieving the story that the petition for withdrawal had been filed without the knowledge of the appellant, also entered into the merits of the case and found on examination of the voting papers that one in favour of the appellant, Nurul Haque, and one in favour of Rustam Ali bore double cross‑marks and, as such, should have been rejected. He, therefore, held that even then Rustam Ali had secured 7 valid votes as against 6 secured by the appellant and, as such, Rustam Ali was duly elected as Chairman of the Union Council.

Nurul Haque then challenged his order by filing a writ in the High Court. The respondent filed counter‑affidavit asserting that a joint petition for withdrawal of the election case on the basis of a compromise had been filed in presence of the petitioner and, as such, the petition under Article 98 of the Constitution was not maintainable. The High Court took the view that during pendency of the restoration petition an appeal before the Commissioner was not competent and that the decision on merits also required re‑consideration. The learned Judges, therefore, allowed the writ petition, set aside the order of the Commissioner and remanded the case to him "to re‑consider the question of maintainability of the appeal as well as the question as to whether the alleged ballot paper of the petitioner (Nurul Haque) contained two cross‑marks from the very beginning, giving opportunity to the petitioner and also the other side, if necessary, to adduce evidence in that respect." The Province of East Pakistan seeks special leave to appeal against the above order of the High Court.

It was contended inter alia :---

(i) that in the facts and circumstances of the case the writ petition was not maintainable ; and

(ii) that in view of the findings of the appellate Court that the election petition had been withdrawn on the basis of a compromise, the High Court was not competent to set aside the said findings of fact.

In our opinion, these points require consideration and we, accordingly, grant leave to appeal.

Leave granted.

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