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Civil Appeal No. 35 of 1968, decided on 2nd December 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 5th April 1968, in W. P. No. 809 of 1967).
‑‑Retrospectively‑ Procedural law‑Change in procedure without affecting substantive right Operates on pending cases.
r. 7‑Rule 7 as newly substituted by Notification. No. BDI16‑4160 dated 26‑2‑66‑Amended rule, being procedural in nature, operates retrospectively.
Where the contention was that the amended rule 7 of the West Pakistan Basic Democracies (Elections of Chairman) Rules, 1960 which came into force on 26‑2‑66 long after an election petition had been filed, was not applicable to proceeding relating to that application, it was held At the argument suffered from a fallacy as there can be no vested right in procedure and change in procedure without affecting substantive rights, will operate on pending cases. The amended rule which merely provided for an additional forum for the decision of election petitions brought about a procedural change which would govern pending petitions entrusted to it.
Rr. 7 & 5 (5)‑Two contesting candidates‑Both found to have drawn equal number of votes‑Proper course: to draw lots under r. 5 (5)‑Controlling Authority hearing election petition‑Not justified, in circumstance, to order fresh election.
Sh. Aftab Hussain, Senior Advocate Supreme Court (D. M. Awan, Advocate Supreme Court with him) instructed by Sh. Masud Akhtar, Attorney for Appellant.
M. B. Zaman, Senior Advocate Supreme Court (Bashir Zafar, Advocate Supreme Court with him) instructed by Fazle‑Hussain,
Attorney for Respondent No. 1.
Respondent No. 2:‑Ex parte.
Date of hearing : 2nd December 1968.
‑This appeal by special leave against a decision of the High Court of West Pakistan at Lahore, has been brought in the following circumstances.
The appellant Ch. Safdar Ali contested the election of the Chairman, Union Committee No. 22, Model Town, Lahore, against the respondent Karam Elahi, the only other contesting candidate. The election was held on the 18th of January 1966 and resulted in a tie, both the contestants having secured 8 votes, each, in the total poll of 16. On a count the Presiding Officer rejected one of the respondent's votes on the ground, of ambiguity as the cross mark which it bore against the name; of the respondent was not strictly regular and in addition it has a tick mark against the name of the appellant also. In the result the appellant gained a majority of one and was declared elected.
On the 23rd of January 1966, the respondent filed an election petition before the Controlling Authority, i.e., the Collector, Lahore, under Rule 7 of the West Pakistan Basic
Democracies (Election of Chairman) Rules, 1960 (hereinafter described as the Rules) on 11‑6‑1966. The Collector being under pressure of work wrote to Mian A. M. Saeed, Additional Commis sioner (Revenue), Lahore Division, to take up the disposal of some of the election petitions to which he agreed subject to the approval of the Commissioner, Simultaneously, the Collector sent 13 pending election petitions to the Additional Commissioner, which included the one filed by the respondent. The Additional commissioner did not possess the powers of an Election Tribunal and asked for their conferment by the Government. These were conferred on him on the 15th of October 1960 by a Notification No. BDI/16‑151/66, in the following terms :‑‑
"In exercise of the powers conferred on him by Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, the Governor of West Pakistan is pleased to appoint the Additional Commissioner (Revenue) Lahore Division to hear and decide the Election Petitions listed in the Schedule to this Notification
1. ---------------------------------------------
2. ---------------------------------------------
10. Malik Ikram Elahi v. (1) Sh. Saeed Iqbal Shami,
(2) Ch. Safdar Ali.
13. ---------------------------------------------
The learned Additional Commissioner thereafter heard the petition and came to the conclusion that the Presiding Office had wrongly rejected one ballot paper of the respondent, thu giving a lead to the appellant. Both the candidates according him had received equal number of votes and, therefore, he decide that "he had no choice except to declare the election void and t direct that re‑election be held to give a chance to both the candidates to try their strength and luck in the re‑election".
Aggrieved by this order the appellant moved a Writ Petition in the High Court which was dismissed.
Leave to appeal was granted by this Court to consider the two contentions raised for the appellant namely
(1) That there was no provision in the Basic Democracies Order or the Rules made there under for the transfer of the election petition from the Controlling Authority to any other agency and the Additional Commissioner not being competently seized of the election petition, his decision is without jurisdic tion.
(2) Assuming that the transfer was valid the petition had become time‑barred when on the 15th of October 1966 the Additional Commissioner was invested with powers to deal with it.
The second contention has a short answer. As noticed above the election petition was filed before the Collector on the 23rd of January 1966 within 5 days of the announcement of the result. The fact that it remained pending with him and was subsequently entrusted to the Additional Commissioner does not in any manner alter the date of its institution, to take it forward to the time when Mr. A. M. Saeed became competent to deal with it. It is fantastic to argue that the date of the institution of the election petition should be ‑ taken to be the date when Mr. A. M. Saeed was invested with powers for its disposal. The order cited above whereby Mr. A. M. Saeed was authorised to decide this petition states that he was "to hear and decide" the petition and postulates that it was already pending.
For the first contention the learned counsel submitted that under the unamended Rule 7(1) the petition could be presented only to the Controlling Authority and under Rule 7(2) he alone could declare the election as void for any material irregularity or any sufficient reason to be recorded. By Notification No. BDI/6‑4/60, dated the 26th of February 1966, Rule 7 was substituted by a new rule as follows:‑
"7(1) No election of a Chairman shall be called in question except by an election petition presented to the Controlling Authority or such other officer as Government may appoint, in this behalf within 90 days of the declaration of the result.
(2). -----------------------------------------------------------------
(3) The Controlling Authority, or the officer appointed by Government under sub‑rule (1), as the case may be, may, after such enquiry, as it may consider necessary, uphold the election or award any declaration prayed for under sub‑rule (1), for any material irregularity, or any other sufficient reason to be recorded."
The learned counsel for the appellant contended that the amended rule which came into force on 26‑2‑1966 long after this election petition had been filed was not applicable. The argument suffered from a fallacy as there can be no vested right in procedure and change in procedure without affecting substantive rights, will operate on pending cases. The amended rule which merely provided for an additional forum for the decision of election petitions brought about a procedural change which would govern pending petitions entrusted to it. It may, however, be pointed out that the Additional Commissioner was competent to decide the petition even under the unamended rule. Having been specially appointed under the Basic Democracies Order to perform the duties of an Election Tribunal for the decision of election petitions he would be deemed to be a Collector and the Controlling Authority qua those petitions according to the definition of these terms in the Order. Collector is defined in section 3(8) of the Order "3(8) Collector' means the chief officer in charge of the revenue administration of the district concerned and includes a Deputy Commissioner, and any other officer specially appointed by the Government to perform all or any of the functions of a Collector under this Order."
There is, therefore, no doubt that the Additional Commis sioner had the jurisdiction to decide the election petition both under the old and the new rules.
It seems, however, that in making a direction for a fresh election the learned Additional Commissioner has not taken note of subsection (5) of section 5 of the Rules which reads :‑
"The candidate obtaining the highest number of votes shall be declared by the Presiding Officer to have been elected as the Chairman if for the purposes of the declaration of the result and if there is a tie between two or more candidates who have obtained an equal number of votes, the result shall be declared by the Presiding Officer by drawing lots."
As both the candidates had drawn equal number of votes the requirement of this rule was to draw lots between them. Instead they have been driven to a fresh election in clear a defiance of this rule. The learned counsel for the parties agree that the drawing of lots in this case was the correct legal course which should have been followed and which should even now be followed to decide the fate of this election.
In the result we allow this appeal and by setting aside the order of the High Court direct, pursuant to the consent of the parties, that the Additional Commissioner (Revenue) Lahore Division shall‑draw' lots' between the two rival contestants as required by law, to determine the result of the election. As it is a case of divided success, we leave the parties to bear their own cost.
Appeal partly accepted
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