1. ABDUL HAKIM, J.----In this application the petitioner has challenged the order dated 21-4-1966 of the Additional Com--missioner, Khulna passed in Appeal No. 178 of 1965 under rule 12 of the East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules, 1965 (herein--after called the said Rules). The Rule was issued calling upon the respondents to show cause why the respondent No. 2 should not be directed to re-hear and dispose of the appeal in accordance with law.
2. The facts relevant for disposal of the Rule, in short, are that the election of the Chairman of Halidhani Union Council, P. S. Jhenaidah, District Jessore took place on 25-8-1965. The--petitioner Nurul Haque Joarder and the respondent No. 5--Md. Rustam A.I were the two contestants in the said election All the 15 members of the Union Council were present and participated in the election.
3. Respondent No. 5 secured 8 votes as against 7 votes secured by the petitioner. The respondent No. 5 was then declared elected as Chairman by the Presiding Officer. The petitioner challenged the said election before the Collector,. Jessore under rule 10 of the said Rules on the allegations that one ballot paper counted in favour of the successful candidate, respondent No. 5, contained two cross-marks against the names of the two contestants and that the members were not given 3, days clear notice before holding of the election. The Collector entertained the petition on 23-9-65 and disposed of the same on 3-11-65 by an order which runs as follows:- "3-11-65. S. R. Of notice and record and report from S. D. O. Received. Petitioner present and files a petition praying for withdrawal of the case. Allowed. File."
4. It has been alleged in the petition that the petitioner never filed any application for withdrawal of the Election Dispute Case No. 14/C.E of 1965 and that the clerk of the lawyer engaged by the petitioner collusively filed a petition for withdrawal of the case without the knowledge of the petitioner. A petition for restoration of the said case (being Case No. 14/C-E of 1965)--was, therefore, presented before the Collector. The Collector--admitted this application for restoration and fixed the matter-- for hearing on 26-12-65. The petitioner, however, did not pursue the said petition for restoration and in the meantime, filed an appeal before the Commissioner, Khulna Division, under rule 12 of the said Rules. An affidavit was also filed before the Commis--sioner stating that the petitioner had in hand in the withdrawal of the election dispute case and the withdrawal petition was, actually filed by the clerk of the lawyer concerned without his knowledge in collusion with the respondent No. 5. The petitioner was not present before the Collector on 3-11- 65 and as a matter of fact, on that date he was present in the Court of Mr. Mofizud--din Ahmed, Magistrate, Ist Class, Jhenidah in connection with: G. R. Case No. 299 of 1965. He never filed any joint petition for amicable compromise of the matter before the Collector.
5. The Additional Commissioner, Khulna who heard the appeal under Rule 12 of the said Rules disbelieved the petitioner's affidavit in respect of withdrawal of the Election Dispute Case No 14/C-E of 1965 with the observation: "From the evidence on record it is clear that his plea that he was present in a Magistrate's Court Jhenidah throughout the Court hours on the relevant date would appear to be palpably false although he swore an affidavit to that effect from the certified copies of the hajira and the prayer of the Court Sub-Inspector filed before that Court on the said' date; the order of the learned Deputy Commissioner, Jessore --dated 3-11-65 also shows that he was present in the Court on the date of filing the said withdrawal petition. It was perhaps for the reason that he was hesitant to pursue his review petition before the Deputy Commissioner, Jessore and not because he apprehended that it would not be disposed before period of appeal lapsed. The withdrawal petition also falsifies his present stand as he gave not one signature but two signatures on the said petition at the proper places which could not have been so if it was a demi paper left with the Muharrir with his signature only".
6. The Additional Commissioner while dealing with the appeal, however, entered into the merits of the case and disposed of the appeal with the findings : "The voting papers were examined and it was found two voting papers, one in favour of the appellant and the other in favour of Rustom A.I both bear double cross-marks and as such should have been rejected as invalid by the learned Presiding Officer; he apparently ignored them as the result of the election would have been the same in such a case. Whatever might have been the reason for his doing so the fact remains that Rustom A.I secured 7 valid votes against 6 valid votes cast in favour of the appellant, Nurul Haque Joardar and as such Rustom A.I was rightly elected as Chairman of the said Union Council".
7. The petitioner in this Writ Petition has challenged before us the above findings of the Additional Commissioner.
8. The respondents Nos. 1 to 3 have filed a counter-affidavit in the case asserting that the petitioner was present before the Collector on 3-I1-66 and jointly filed a petition for withdrawal of the election case on the basis of an amicable compromise and that the story of collusion as alleged is nothing but a myth. The respondent No. 5, the sitting Chairman of the Union Council has also filed an affidavit-in-opposition controverting the allegations made in the petition. It has been alleged in that affidavit-in---opposition that the election in question was held in accordance with the rules.
9. The ballot papers were counted in presence of the candidates and no objection was taken from any side as to the validity of the election. The petitioner was personally present on 3-11-65 before the Collector and filed the withdrawal petition at his own accord and that the affidavit filed before the Commis--sioner to the effect that he had no hand in the withdrawal of the case is an afterthought. A criminal case has already been started against the petitioner before a Magistrate at Khulna for making a false affidavit to that effect. The election case having been withdrawn as per joint prayer of the parties and the application for restoration of the said case having been still pending before the collector the appeal before the Commissioner is not maintain--able but the casual observations made by the Additional Commissioner on the merits of the case are quite reasonable and correct.
10. Mr. Ishtiaq Ahmed, learned Advocate appearing for the petitioner, has contended before us that impugned order dated 21-4-66 of the Additional Commissioner, respondent No. 2, as to the merits of the case, as quoted above, is illegal and without lawful authority inasmuch as the respondent No. 2 having found that the disputed voting paper counted in favour of respondent No. 5 ought to have been rejected, should have held that there were equality of votes between the contesting candidates and as such the respondent No. 5 could not be declared elected as Chairman. The learned Advocate has also submitted that the respondent No. 2 has acted illegally in rejecting a ballot-paper counted in favour of the petitioner allegedly containing two cross-marks, without any allegation made to that effect either at the time of counting or thereafter and without the petitioner giving any opportunity to refute the allegation. On behalf of the respondents, on the other hand, it has been submitted that the appeal under rule 12 of the said rules being incompetent the present application under Article 98 (2) of the Constitution is not maintainable and that the election dispute petition having been withdrawn by a joint application, the petitioner has waved his right to seek any further relief and that the application for restoration having been pending before the Collector, his appeal to the Commissioner does not lie and that the averments relating to the withdrawal of the case having involved some disputed question of facts, that matter cannot be decided in a petition under Article 98 of the Constitution.
11. It appears from the records that at no earlier stage it was ever alleged by any body that one of the ballot-papers of the petitioner contained two cross-marks. No such allegation was raised before the Presiding Officer and no grievance was ever made to the Collector on that score. There is nothing on record to show that any such objection was taken by the respondent No. 5 even before the Additional Commissioner at the time of hearing of the appeal. It is true that the Additional Commissioner exercising power of appellate authority is empowered to look into the entire records of the case and may also consider the defects, if any, found on the ballot papers. The question now is whether the appellate authority can reject suo moto a ballot-paper for allegedly containing two cross-marks, without any objection from any side or without giving any opportunity to the man who is likely to be affected by such rejection. The petitioner secured 7 votes in the said election of Chairman and it was accepted by the Presiding Officer as genuine. Seven members have reposed confidence in him by casting their votes in his favour and these 7 votes are his valuable properties acquired by him, as a result of the election. These valuable properties to which he has acquired a right cannot, perhaps, be taken away without giving a reasonable opportunity to him to explain the position. In the instant case, it appears, the Additional Com--missioner has rejected one of the ballot-papers of the petitioner without affording any opportunity to the petitioner to refute the allegation so far that vote is concerned and it seems that the appellate authority in that respect has acted against the principle of natural justice. This view of ours receives support from numerous decisions of the highest judicial authorities. It will suffice if we just mention two cases in this connection. In the case of The University of Dacca and another v. Zakir Ahmed (PLD 1965 SC 90), the Supreme Court of Pakistan observed as follows :- "From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post facto investigations into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case."
12. The same view was also reproduced in the case of Errington and others v. Minister of Health (1935 K B D 249), wherein it had been observed " The only question that remains is whether the Court should come to the conclusion that the interests of the applicants have been substantially prejudiced by what has been done, because the quashing of the Order is, of course, a matter of discretion of the Court. I do not think it has been proved that the statement which were made to the Ministry in fact affected the decision of the Minister, or of his officials, and I certainly have no reason to doubt that the officials were acting in what they thought to be the public interest. On the other hand, it seems to me a matter of the highest possible importance that where a quasi-judicial function is being exercised, under such circumstances as it had to be exercised here, with the result of depriving people of their property, especially if it is done without compensation, the persons concerned should be satisfied that nothing unfair has been done in the matter, and that ex parte statements have not been heard before the decision has been given without any chance for the persons concerned to refute those statements. That seems to me a matter of the greatest possible public importance, and if I am right in the view that I have expressed as to the functions of the Minister being of a quasi-judicial character, I think it follows that in the special circumstances of this case, as I understand them to be, the Court has no option but to quash the order, as my brother has suggested."
13. The contention of the learned Advocate for the petitioner has thus considerable force. In the light of the above decisions we have, therefore, no other alternative than to hold that the Additional Commissioner in the instant case has rejected one ballot-paper of the petitioner without giving any opportunity to him to refute the allegation and in that view of the matter we cannot support the order of the Additional Commissioner so far this aspect of the case is concerned.
14. There is another aspect of the matter. The question raised above, on behalf of the respondents as to the maintainability of the appeal under rule 12 of the said Rules, requires careful consideration by the appellate authority. Whether the election dispute case was withdrawn or not is a disputed matter. But if it was a withdrawal with the consent of the parties on the basis of a joint prayer the matter shall be deemed to be concluded. On the other hand, the application for restoration 1935 K B D 249 having been still pending before the Collector, the presentation of appeal before the Commissioner is not permissible under rule 12 of the said Rules. In either view of the matter it requires careful examination of the materials by the Additional Commis--sioner. The Additional Commissioner who disposed of the appeal only disbelieved the affidavit of the petitioner regarding the withdrawal of the election case but did not consider this aspect of the case in his judgment.
15. We, therefore, allow this application, set aside the impugned order, make the Rule absolute and send the matter back to the Commissioner 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 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. We, however, make no order as to costs.
16. SIDDIKY, C. J.----I agree.