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Writ Petition No. 50 of 1965, decided on 6th December 1965.

Art. 98, cl. (2)(a)(i)‑---Writ jurisdiction---‑Mere fact of Election Commission having its regional office at Dacca‑Not sufficient to constitute it a "person" perform ing functions in East Pakistan‑High Court of East Pakistan, in circumstances, held, had no jurisdiction for issuing writ, under Art. 98.

The Election Commission indisputably performs functions in connection with the affairs of the Centre. The mere fact that it has a regional office in Dacca does not lead to the conclusion that it is a "person" performing functions in this Province.

It was contended on behalf of the petitioner that, as the Election Commission is supposed to carry on the functions contemplated by Article 153 throughout the territory of Pakistan and for that end has a regional office in Dacca, a direction contemplated by Article 98(2)(a)(i) can be issued by the East Pakistan High Court against it. The contention was not accepted and it was held that the petitioner was not entitled to ask for issuing the direction upon the Election Commission from that High Court.

Art. 77‑--Disqualification‑Election Com mission has no discretion in not disqualifying person found guilty of corrupt practices.

Provisions in Article 77 of the President's Order No. 4 of 1962 do not leave any discretion in the Election Commission not to disqualify a person from election once he is found guilty by the Tribunal.

Interpretation of Statutes by Maxwell ref.

Ahmed Sobhan and Abu Taher Choudhry for Petitioner.

Md. Nurul Huda, Deputy Attorney‑General and K. Haroon ur Rashid for Respondent No. 1.

Date of hearing: 30th November 1965.

The petitioner, the respondent No. 3 Mr. Abdul Awal Bhuiyan, and Mr. Nazir Ali Khan were candidates at the by‑election held on the 20th October 1963, in Constituency No. PE 126 Comilla‑VI. The respondent No. 3, having secured the highest number of votes, was declared elected. The petitioner filed an Election Petition for setting aside the election in which allegations of corrupt practices, against the respondent No. 3 as well as the respondent No. 2 who was at the relevant time a Minister of the Provincial Government, were made. The Tribunal unanimously found that Mr. Abdul Awal Bhuiyan had committed corrupt practices under Articles 52, 61 and 62 of President's Order No. 4 of 1962, In the case of Mr. Mofizuddin Ahmed, two of the members of the Tribunal found him guilty of having committed corrupt practices under Article 63 of the President's Order No. 4 by exercise of undue influence on two electors. The judgment of the Tribunal was delivered on the 16th November 1964, and the petitioner's case is that the respondent No. 1, namely, the Election Commission, Pakistan has not up to now taken any action under Article 77 of President's Order No. 39 of 1962 by disqualifying the respondents 2 and 3.

In the affidavit‑in‑opposition on behalf of the respondent No. 1 which has been affirmed by Mr. S. C. Mahboob Ali, Regional Election Commissioner, the stand taken is that, as the Election Commission did not receive the entire record of the Tribunal, no action could be taken under Article 77. It has been pointed out that the question would receive the Commission's consideration in due course according to law.

At the time of the hearing of this application, learned Deputy Attorney‑General, however, stated that the Election Commission did not consider it necessary to take any action against the respondents 2 and 3 particularly against the respondent No. 2. The stand taken appears to be that the Election Commission is not bound to take action against any person who is found guilty of any corrupt or illegal practice by an election Tribunal.

The question that falls for determination in this case is: Whether the Election Commission is bound to disqualify any person who is found guilty of any corrupt or illegal practice by a Tribunal under the provistors of President's Order No. 4 of 1962 read with Presidents Order No. 39 of 1962.

The petitioner in this case has prayed for a direction upon the respondent No. l to take action against the respondents 2 and 3 under Article 77 of President's Order No. 4 of 1962 as amended by President's Order No. 39 of 1962.

We feel that, before taking up the main point for considera tion, it is necessary to consider whether this Court has jurisdiction to issue the direction asked for by the petitioner which is virtually the only relief which has been prayed for in this case. Provision for issuing such a direction has been made in paragraph (a)(i) of clause (2) of Article 98. This provision is in the following terms‑

"(2) Subject to this constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law‑

(a) On the application of any aggrieved Party, make an order‑

(i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do;"

The petitioner in the petition has stated that the address of the Election Commission is Rawalpindi, West Pakistan. The petition also shows that the said Commission has a regional Office at Naya Paltan, P. S. Ramna, Dacca.

The point that arises for consideration is: Whether in view of these facts, it can be said that the Commission is a "person" performing in the Province of East Pakistan functions in connec tion with the affairs of the Centre. The Election Commission indisputably performs functions in connection with the affairs of the Centre. The mere fact that it has a regional office in Dacca does not lead to the conclusion that it is a "person" performing functions in this Province. Provisions in regard to the Election Commission and the functions that it is supposed to discharge have been made in Article 153 of the Constitution.

It has been contended on behalf of the petitioner that, as the Election Commission is supposed to carry on the functions contemplated by Article 153 throughout the territory of Pakistan and for that end has a regional office in Dacca, a direction contemplated by Article 98 (2)(a)(i) can be issued, by this Court against it. After giving our due consideration to the arguments of Mr. Sobhan and the provisions to which reference has already been made, we are unable to accept the contention. B We are, therefore, of the view that the petitioner is not entitled to ask for issuing the direction upon the Election Commission from this Court.

Having regard to the finding to which we have arrived it is not necessary to give a decision on the merits of the contentions of the parties in regard to the main prayer of the petitioner. We may, however, point out, without expressing our final opinion on the same, that in view of the authorities on the subject upon which Mr. Sobban has relied, we were inclined to accept his argument that the provisions in Article 77 of the President's Order No. 4 of 1962 do not leave any discretion in the Election Commission not to disqualify a person from election once he is found guilty by the Tribunal. Reference in this connection may be made to Maxwell on the Interpretation of Statutes (11^th Edition) page 231 wherein expressions such as "may", "shall, if they think fit", "shall have power" and "it shall be lawful" have been found to convey a compulsory force.

In view, however, of our finding with regard to jurisdiction, the Rule is discharged but we leave the parties to bear their own costs.

Mr. Kazi Shafiuddin on behalf of Mr. Ahmed Sobhan prays for a certificate under Article 58. We certify that this is a fit case in which substantial questions of law as to the interpretation of the Constitution arise.

‑--I agree.

A. E. Rule discharged.

Certificate to Special Appeal granted.

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