Col. (Retd.) Syed MUKHTR HUSSAIN SHAH vs WASIM SAJJAD And 30 Other
This matter concerns an appeal filed under the Senate (Elections) Act, 1975, challenging an Election Tribunal's decision that invalidated certain votes and declared respondent No. 1 as the successful candidate for a special Senate seat. The appellant sought interim relief, including the suspension of the Tribunal's orders, an injunction against the Chief Election Commissioner from notifying the respondent, and an order preventing the respondent from taking the oath of office. The Supreme Court noted that the notification of the respondent had already occurred, rendering the request for an injunction against the Election Commission infructuous. Regarding the remaining prayers, the Court declined to intervene on the merits at the interim stage, emphasizing the importance of ensuring the electorate's right to representation in the Senate. Consequently, the Court dismissed the application for interim relief, save for a limited order preserving the appellant's right to maintain his appeals despite the adverse adjudications against him, ensuring the impugned orders would not prejudice that specific right.
- Whether an interim order should be granted to suspend an Election Tribunal's declaration of a successful candidate pending appeal?
- Does the notification of a candidate as a successful member of the Senate render a prayer for an injunction against such notification infructuous?
- To what extent can the Supreme Court intervene in election matters at an interim stage before deciding the merits of an appeal?
- Section 48(3), Senate (Elections) Act, 1975
- Order XXXIII Rule 6, Supreme Court Rules 1980
ORDER
1. SHAFIUR RAHMAN, J.--In an appeal filed under section 48 (3) of the Senate (Elections) Act, 1975 (hereinafter referred to as the Act), an application has been filed under Order XXXIII. Rule 6 of the Supreme Court Rules seeking (i) suspension of the impugned order of the Election Tribunal dated 31st of August, 1985 read with the Order dated 1-9-1985, (ii) an order restraining the Chief Election Commissioner from notifying the respondent No.1 as the returned candidate and (iii) an order restraining the respondent No.1 from taking oath as a Member of the Senate.
2. On an Election Petition filed by Khalid Amir Khan who contested like the appellant, for one of the 5 special seats of the Senate, the Election Tribunal invalidated 17 votes and as a result of recount by the impugned orders declared respondent No.1 as duly elected. The basic disqualification of the appellant for the special seat is already the subject-matter of an earlier Civil Appeal No. 94 of 1985 and he has been by an interim order of this Court to be treated as elected Member of the Senate who has not yet been duly notified as such Member nor administered oath as such (vide 1985 SCMR 1553). We are informed by the learned counsel that the Chief Election Commission has already notified the respondent No.1 as the successful candidate, making the second prayer in terms infructuous.
3. The learned counsel for the appellant has contested on merits the very competence of the Election Petition and the jurisdiction of the Election Tribunal to order a recount or to invalidate the votes on defects disclosed. He has in support of the petition contended that a candidate not otherwise entitled to be a Member of the Senate should not be allowed to take over and function as such on the basis of such impugned orders of the Tribunal.
4. After hearing the learned counsel for the petitioner at some length, we consider that this is not the stage to comment on the merits of the appeal. All the same we would reiterate our anxiety not to, deprive the electorate of its right to be represented in the Senate. Hence we would not like to intervene by an interim order to grant the prayers except to the extent of preserving and sustaining the right of the appellant to maintain his appeals in spite of the two adjudications against him and to this extent alone the impugned orders shall nor take effect. In other respects, the application is dismissed.
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