Representation
of People Act
(XXXI
of 1957)
S. 116.
Disqualification for election inherent— objection as to disqualification not
rose at the time of scrutiny but after election. Election liable to be set
aside.
In
the present case the successful candidate was a government contractor but the
objection that being a government contractor was not eligible for election, was
not raised at the time of scrutiny and it was thereupon contended on behalf of
the successful candidate that this question of disqualification not having been
raised at the time of scrutiny cannot be urged now for setting aside election.
Held: If the
disqualification was an inherent disqualification, a candidate suffering from
such disqualification cannot be deemed to be eligible in law and, as such, even
though no objection was taken at time of scrutiny, the petitioner can maintain
an election petition for the purpose of establishing that there was an inherent
disqualification in the returned candidate and that, as such, the entire
election can be challenged accordingly.
Ali Akbar
Vs. Sayeedur Rahman (1963) 15 DLR 153.
—This
Act cannot be said to have been completely repealed by the Laws (Continuance in
Force) Order, 1958 simply because the Constitution of 1956 under which it was
enacted was repealed though some of the provisions of this Act, in the light of
subsequent enactments dealing with the same subject matter, being inconsistent
with them may, to the extent of such inconsistency, be held to be no longer
laws.
The
Representation of People Act, 1957 (XXXI of 1957) was allowed to continue in
force on the authority of President’s Order No. I of 1958, namely, Laws
(Continuance in Force) Order and not being expressly it cannot be said to have
been repealed or otherwise rendered honest by necessary implication.
Although
the authority for the promulgation of the act XXXI of 1957 was derived from Art.
144 of the late Constitution yet when it was brought on the statute book it
stood as an independent law irrespective of the fate of the parent Constitution
which was repealed in October, 1958. The entity of the Act of 1957 remained in
tact without reference to the Constitution itself.
Upon
the plain language used in Article 4(1) of Law (Continuance in Force) Order
indicating the extent of applicability with necessary adaptation ills quite
sensible to conceive that only such provisions of Act XXXI of 1957 as might not
be inconsistent with the other laws since brought into operation should be
deemed to have been in force although by reason of the changed circumstances
some of the other provisions of the same law appear to be inapplicable. Ibid.
—Provisions
of the section arc applicable in so far as the question of disqualification of
members to Provincial Assembly arc concerned.
Reading
Article 103(2) of the present Constitution together with Chapter VI of
President’s Order No. 4 of 1962, it would appear that the principle of
disqualification as envisaged in sec. 116 of Act XXXI of 1957 can also find
place as another independent measure in the same field which covered the
possible disqualifications of a candidate for the purpose of an election to the
National or a Provincial Assembly. Ibid.
—Election
when declared void—Next man not to be entitled to a declaration that he has
been elected unless he can prove that he would secure sufficient votes to make
him successful.
The
petitioner submitted that as soon as the election of the successful candidate
is set aside he may be declared as the elected member.
Held: There
being no clear case nor any convincing evidence as to how the result of the
petitioner in the election can he said to have been materially affected it was
his duty to show by the cogent evidence that the votes cast in favour of the
returned candidate would have been certainly cast in his alone and not in favour of other candidates
or to show that at any rate he would have secured the largest number of votes
in his contest with the remaining candidates. For want of any good evidence and
express pleading in that behalf the petitioner cannot be declared to have been
elected even though the election of the returned candidate is declared void. Ibid.
—The
Act continues to be an existing law, being saved by Article 4 of the Laws
(Continuance in Force) Order 1958, after the 7th October, 1958. Provisions of
section 116 of the Act was in force when election took place under the
Constitution of 1962.
Badrul Haque
Vs. Election Tribunal (1963) 15 DLR (SC) 389.
—Candidate
not having any “existing” interest in a contract with the Government.
Section
116 of the Act is still in force and that its effect was rightly considered by
the Tribunal in relation to the case of Mr. Jamalus Sattar, the returned
candidate. In the absence of any thing to show that at the time when he presented himself as a candidate
Mr. Jamalus Sattar had an existing interest in a contract with the Government,
section 116 aforesaid could not be pleaded against him. Ibid.
S. 116.
Disqualification for election inherent— objection as to disqualification not
rose at the time of scrutiny but after election. Election liable to be set
aside.
In
the present case the successful candidate was a government contractor but the
objection that being a government contractor was not eligible for election, was
not raised at the time of scrutiny and it was thereupon contended on behalf of
the successful candidate that this question of disqualification not having been
raised at the time of scrutiny cannot be urged now for setting aside election.
Held: If the
disqualification was an inherent disqualification, a candidate suffering from
such disqualification cannot be deemed to be eligible in law and, as such, even
though no objection was taken at time of scrutiny, the petitioner can maintain
an election petition for the purpose of establishing that there was an inherent
disqualification in the returned candidate and that, as such, the entire
election can be challenged accordingly.
Ali Akbar
Vs. Sayeedur Rahman (1963) 15 DLR 153.
—This
Act cannot be said to have been completely repealed by the Laws (Continuance in
Force) Order, 1958 simply because the Constitution of 1956 under which it was
enacted was repealed though some of the provisions of this Act, in the light of
subsequent enactments dealing with the same subject matter, being inconsistent
with them may, to the extent of such inconsistency, be held to be no longer
laws.
The
Representation of People Act, 1957 (XXXI of 1957) was allowed to continue in
force on the authority of President’s Order No. I of 1958, namely, Laws
(Continuance in Force) Order and not being expressly it cannot be said to have
been repealed or otherwise rendered honest by necessary implication.
Although
the authority for the promulgation of the act XXXI of 1957 was derived from Art.
144 of the late Constitution yet when it was brought on the statute book it
stood as an independent law irrespective of the fate of the parent Constitution
which was repealed in October, 1958. The entity of the Act of 1957 remained in
tact without reference to the Constitution itself.
Upon
the plain language used in Article 4(1) of Law (Continuance in Force) Order
indicating the extent of applicability with necessary adaptation ills quite
sensible to conceive that only such provisions of Act XXXI of 1957 as might not
be inconsistent with the other laws since brought into operation should be
deemed to have been in force although by reason of the changed circumstances
some of the other provisions of the same law appear to be inapplicable. Ibid.
—Provisions
of the section arc applicable in so far as the question of disqualification of
members to Provincial Assembly arc concerned.
Reading
Article 103(2) of the present Constitution together with Chapter VI of
President’s Order No. 4 of 1962, it would appear that the principle of
disqualification as envisaged in sec. 116 of Act XXXI of 1957 can also find
place as another independent measure in the same field which covered the
possible disqualifications of a candidate for the purpose of an election to the
National or a Provincial Assembly. Ibid.
—Election
when declared void—Next man not to be entitled to a declaration that he has
been elected unless he can prove that he would secure sufficient votes to make
him successful.
The
petitioner submitted that as soon as the election of the successful candidate
is set aside he may be declared as the elected member.
Held: There
being no clear case nor any convincing evidence as to how the result of the
petitioner in the election can he said to have been materially affected it was
his duty to show by the cogent evidence that the votes cast in favour of the
returned candidate would have been certainly cast in his alone and not in favour of other candidates
or to show that at any rate he would have secured the largest number of votes
in his contest with the remaining candidates. For want of any good evidence and
express pleading in that behalf the petitioner cannot be declared to have been
elected even though the election of the returned candidate is declared void. Ibid.
—The
Act continues to be an existing law, being saved by Article 4 of the Laws
(Continuance in Force) Order 1958, after the 7th October, 1958. Provisions of
section 116 of the Act was in force when election took place under the
Constitution of 1962.
Badrul Haque
Vs. Election Tribunal (1963) 15 DLR (SC) 389.
—Candidate
not having any “existing” interest in a contract with the Government.
Section
116 of the Act is still in force and that its effect was rightly considered by
the Tribunal in relation to the case of Mr. Jamalus Sattar, the returned
candidate. In the absence of any thing to show that at the time when he presented himself as a candidate
Mr. Jamalus Sattar had an existing interest in a contract with the Government,
section 116 aforesaid could not be pleaded against him. Ibid.