2013 C L C 494
[Election Tribunal Balochistan]
Before Jamal Khan Mandokhail, J
Dr. ASHOK KUMAR ----Petitioner
Versus
HEAMAN DASS and 3 others ----Respondents
Election Petition No. 2 of 2012, decided on 5th October, 2012.
(a) Senate (Election) Act (LI of 1975) ---
----Ss. 31 & 32 ---Representation of the People Act (LXXXV of 1976), S.39(6) ---Constitution
of Pakistan, Arts.199 & 225 ---Constitutional petition ---Election dispute ---Forum---Words
"except by an election petition" ---Scope ---Petitioner was aggrieved of election result and
sought recounting of votes ---Respondent raised objection to maintainability of petition ---
Validity ---Provision of S.31 of Senate (Election) Act, 1975, put bar on filing of election
petition before any court or authority, other than Election Tribunal with regard to recounting
of votes in election of Senate ---To the contrary, Art.225 of the Constitution had assigned
power only to Election Tribunal through ele ction petition in respect of election dispute ---
Provision of Art.225 of the Constitution which started with negative word and phrase "except
by an election petition" was purposely used to show intention of legislature, which clearly
ousted jurisdiction of any forum, other than Election Tribunal ---When Constitution had
barred jurisdiction of any forum and directed resolution of any election dispute through
election petition through Election Tribunal, then restriction imposed upon filing of election
petition by S.31(2) of Senate (Election) Act, 1975, was inconsistent with Art.225 of the
Constitution, therefore, bar contained in the section in no way ousted jurisdiction of Election
Tribunal ---Forum provided by the Constitution alone had jurisdiction to adjudica te election
dispute because Constitution would prevail to the extent of conflict ---Election Commissioner
was administrative head of the Commission having power of appeal with regard to recounting
of votes under Senate (Election) Act, 1975 ---Such power of t he Commissioner was not a
substitute of Election Tribunal rather it was equivalent to the power assigned to Returning
Officer under S.39(6) of Representative of the People Act, 1976 ---Aggrieved candidate could
avail such remedy and his decision in administ rative capacity would be final, however it
could be challenged before Election Tribunal ---Availing and non -availing of remedy under
S.32 of Senate (Election) Act, 1975, did not debar a candidate from filing of election
petition, nor it excluded jur isdiction of Election Tribunal ---Objection was overruled in
circumstances.
Syed Mukhtar Hussain Shah v. Waseem Sajjad 1986 PLD SC 178 and Syed Murad
Ali Shah v. Chief Election Commissioner of Pakistan 1995 MLD 1326 rel.
(b) Words and phrases ---
----Dispute ---Defined.
Oxford English Dictionary rel.
(c) Interpretation of statutes ---
----Constitution and sub -Constitutional legislation ---Inconsistency ---Principle ---Constitution
is supreme, therefore, no legislation and any of its provision sho uld be inconsistent with any
provision of the Constitution ---If any provision of any Act is found inconsistent with any
provision of Constitution, in that case, Constitution having an overriding effect, must prevail.
Baz Muhammad Kakar for Petitioner.
Kamran Murtaza for Respondent No.1.
Muhammad Saleem Ansari for Respondent No.3.
Arshad Ali Rajput for Respondent No.4.
Date of hearing: 29th September, 2012.
ORDER
JAMAL KHAN MANDOKHAIL, J. --- Senate elections were held on 2nd March,
2012, wherein, the petitioner was a candidate against a reserved seat from Balochistan. At the
end of the poll, the Returning Officer announced the result declaring the respondent No.1 as a
successful candidate. The petitioner, feeling aggrieved from counting o f the votes, challenged
the result through this petition and prayed for recounting of the votes. The respondents Nos.1
and 3 filed their rejoinder, contesting the petition and raising some legal objections, including
the maintainability of the petition, in view of section 31(2) and section 32(6) of the Senate
(Elections) Act, 1975 (hereinafter called as "the Act"). Upon the preliminary legal objection
regarding the maintainability of the petition, the following issue was framed and the matter
was fixed for arguments to resolve this issue: ---
"Whether the Tribunal has no jurisdiction to entertain the petition in view of section
31(2) and section 32(6) of the Senate (Election) Act, 1975?"
2. Learned counsel for the respondents stated that under the Act, an y candidate
aggrieved from a result of a count votes, can prefer an appeal before the Election
Commissioner under section 32 of the Act. He further stated that under section 31(2) of the
Act, there is a bar on filing of an election petition before the Trib unal, therefore, the present
petition is incompetent, as such, is liable to be rejected.
3. Controverting the contention of the learned counsel for the respondents, the learned
counsel for the petitioner stated that pursuant to section 34 of the Act, the petition is
competent before the Election Tribunal and that Article 225 of the Constitution of the Islamic
Republic of Pakistan exclusively grants jurisdiction to an Election Tribunal to determine an
election dispute through an election petition, therefor e, the present petition has been
competently filed. The learned counsel in supports of his contention relied upon the cases of
Syed Mukhtar Hussain Shah v. Waseem Sajjad, reported in (1986 PLD SC 178) and Syed
Murad Ali Shah v. Chief Election Commissioner of Pakistan, reported in (1995 MLD 1326).
4. After hearing the counsel for the parties, the only question for determination at this
stage is to see whether the election petition in respect of the counting of the votes can be filed
before the Tribunal. Th e Senate is a creation of the Constitution and Article 53 provides the
mode of election to the Senate to be conducted under the Senate (Elections) Act, 1975, and
the Senate (Election) Rules 1995 enacted thereunder. The Election Commission of Pakistan is
required to supervise the senate elections. Section 24 of the Act prescribes the procedure at
the close of a poll and completion of a count. If any dispute with regard to the result declared
by the Returning Officer arises, a remedy for its resolution has be en provided in section 31 of
the Act, which is reproduced as under: ---
"S.31. Election not to be questioned except by Election Petition or appeal. --- (1) Save
as provided in section 32, no election shall be called in question except by an Election
Petiti on under section 34.
(2) No question that can be settled in an appeal under section 32 shall be raised by
an Election Petition or before any court or authority whatsoever, nor shall any
question that can be raised by an Election Petition be raised before any court or
authority other than an Election Tribunal."
The above referred section puts a bar on filing of an election petition before any court
or authority, other than an Election Tribunal with regard to re -counting of the votes in the
election of S enate. To the contrary, Article 225 of the Constitution of the Islamic Republic of
Pakistan assigns power only to an Election Tribunal through an election petition in respect of
an election dispute. The Article 225 of the Constitution is reproduced hereinb elow: ---
"Election Dispute. ---No election to a House or a Provincial Assembly shall be called
in question except by an election petition presented to such Tribunal and in such
manner as may be determined by Act of [Majlis -e-Shoora (Parliament)].'
Here a question arises as to whether a disagreement upon a result of a count of votes
and a request for its re -counting comes within the definition of an election dispute? In the
Act, as well as, in the Constitution, the word "an election dispute" has not been defined,
however, the Concise Oxford English Dictionary defines only the word dispute as under: ---
"Dispute. 1. argue about (something). Question the truth or validity of (a statement or
alleged fact).
(2) compete for.
(3) resist. A disagreement or argument."
5. In the light of the definition of a dispute, a disagreement or questioning the validity of
a result of a count of votes prepared by a Returning Officer, is an "election dispute", which
requires resolution. The Act and the Constitution provi des two different forums, therefore, a
question arises as to which forum has the jurisdiction to entertain and decide the dispute. It is
a well -settled principle that the Constitution is supreme, therefore, no legislation and any of
its provision should be inconsistent with any provision of the Constitution. If any provision of
any Act is found inconsistent with any provision of the Constitution; in that case, the
Constitution having an overriding effect, must prevail. Article 225 of the Constitution starts
with a negative word and the phrase "except by an Election Petition" has purposely been used
to show the intention of the legislature in this Article, which clearly oust the jurisdiction of
any forum other than an Election Tribunal. When the Constitution specifically bars a
jurisdiction of any forum and directs the resolution of any election dispute through Election
Petition before Election Tribunal, then a restriction imposed upon filing of Election Petition
by section 31(2) of the Act is inconsistent wit h Article 225 of the Constitution, therefore, the
bar contained in this section of the Act in no way oust the jurisdiction of the Tribunal. Under
such circumstances, the forum provided by the Constitution alone has the jurisdiction to
adjudicate the electi on dispute, because the Constitution will prevail to the extent of the
conflict.
The Hon'ble Supreme Court of Pakistan in the case of "Mukhtar Hussain Shah v.
Wasim Sajjad, reported in (PLD 1986 Supreme Court 178) has held as under: ---
"The upshot of these statutory provisions is that the challenge to an Election is
possible only by an Election Petition and further that such Election Petition has to be
disposed of by an Election Tribunal appointed by the Commissioner (section 57 of the
Act LXXXV of 197 6 and section 38 of the Act). On no hypothesis can the
Commissioner pre -empt the powers and the functions of the Election Tribunal nor do
the powers and jurisdiction of the Election Tribunal get affected in dealing with an
election disputer, by what the Co mmissioner has done in the matter of counting the
jurisdiction of the Election Tribunal neither Order II, rule 2, C.P.C. nor section 11.
C.P.C. can be invoked by the appellant for shutting out an Election Petition."
Similarly in the case of Murad Ali Sh ah v. Chief Election Commissioner reported in
(1995 MLD 1356), the Supreme Court of Pakistan has held as under: ---
"The decision was based on the principle that where there is conflict between the
Constitution and subordinate law, the Constitution shall always prevail to the extent
of conflict. On the strength of this rule, the provisions of Article 225 of the
Constitution shall prevail over any other subordinate legislation providing a different
forum for challenging election to a House of Parliament. Th us, section 32 of the
Senate Act, which has provided appeal to the Election Commissioner against the
count of votes is not remedy envisaged by Article 225 of the Constitution for
challenging the elections of a returned candidate. "
6. The Election Commis sioner is an Administrative Head of the Commission, having
power of an appeal with regard to re -counting of the votes under the Act. Such power of the
Commissioner is not a substitute of Tribunal rather it is equivalent to the power assigned to
the Returni ng Officer under subsection (6) of section 39 of the Representation of the People
Act, 1976. An aggrieved candidate may avail such remedy and of -course his decision in the
administrative capacity is final, however, it can be challenged before the Tribunal. Hence,
availing and non -availing of a remedy under section 32 of the Act does not debar a candidate
from filing of an Election Petition, nor it excludes the jurisdiction of an Election Tribunal.
7. Thus, in view of what has been stated and discussed her einabove, the objection so
raised by the respondent No.1 is over -ruled and it is held that this Election Tribunal has the
jurisdiction to hear and try the Election Petition accordingly.
MH/15/Q Order accordingly.
MH/101/Q Order accordi ngly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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