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Petition No. 605 of 1966, decided on 16th November 1966.
r. 4‑‑Election of Chairman‑Principles, stated.
The election of Chairman of Union Council Trigri in the District of Gujranwala was held on the 18th of January 1966. The meeting was attended by ten of the members. After the oath of office was administered to the members, they proceeded to elect their Chairman. A, one of the members, proposed the name of B, petitioner. C, another member, seconded his name. There was no other name proposed and seconded in accordance with rule 4 of the West Pakistan Election of Chairman Rules, 1960, but three members, namely, D, E and F proposed their own names, but their names were not seconded by any other member. The Presiding Officer proceeded to hold a poll and B petitioner and D respondent obtained four votes each, whereas F and E obtained one vote each. A lot was drawn between the petitioner and the respondent and D respondent was declared elected in the result. The petitioner then filed an election petition challenging the election of D respondent, and urged two grounds before the Controlling Authority: (1) that D was not a candidate in terms of rule 4 of the W. P. Election of Chairman Rules, when the petitioner was duly proposed and seconded, and (2) that, in any case, one of the votes counted in favour of D respondent not having been correctly marked in accordance with sub‑rule (3) of rule 5, should not have been counted in his favour.
The Controlling Authority rejected both the contentions and dismissed the petitioner's election petition.
The Court proceeded to observe:
Sub‑rule (3) of rule 4 of the Rules is in the nature of a defi nition clause, for it specifies how a member becomes a candidate. This being so, it is not permissible to add to its terms and to bring within its purview persons who do not clearly fall within its ambit, for, it is not the function of the Courts to go behind the clear words of the Rules or the intention of the Rule‑making authority. The intention of the Rule‑making authority is clear that when a member is proposed and seconded, no other member becomes a candidate by proposing himself. In the circumstances of the case, it is not possible to treat the respondent, who proposed himself, as a candidate by regarding the rule as directory and not mandatory. Even if the rule is treated as directory the result cannot be that he can be treated as a candidate, for there is no sanction for it in the rules, and it would be opposed to the clear terms of the sub‑rule. To treat the respondent as a candidate and to hold a poll is also to violate sub‑rule (5) of rule 4.
Sub‑rule (5) of rule 4 enacts that if there is only one candidate that candidate shall be declared by the Presiding Officer to have been duly elected as the Chairman. This is a mandatory provision, which must be given effect to, and if there is only one candidate as defined in sub‑rule (3), it is incumbent on the Presiding Officer to declare him elected as Chairman. When the rule also provides that a poll shall be held if there are more than one candidate, it follows that if there is only one candidate, there can be no poll and no election contest, for there is in such a case no rival candidates seeking election as Chairman. In the result, sub‑rule (5) of rule 4 renders the poll invalid. It conferred no right or status on the respondent, and it is immaterial how many votes were secured by the petitioner and respondent No. 1 or how the lots went.
There were under the rules, no contesting candidates and there could be no contest, because the respondent did not become a candidate not having been proposed or seconded, as required by sub‑rule (3) or rule 4. In the poll, which could not be held under the rules, he did not get a majority, but it was by reason of a lot drawn that he was declared elected. Since the poll was held in violation of sub‑rule (5), the result of the poll is in fact immaterial. The respondent cannot be treated as a candidate at all. That being the position, the defect is not merely technical, but of a basic and substantial nature, for it is a basic principle of election law that a person who is not a candidate in law cannot be elected.
Held, that a material irregularity has been committed by the Presiding Officer in not declaring the petitioner elected as Chair man.
In case there is only one candidate in the field as contemplated by sub‑rule (5), it is abundantly clear that a duty is cast on the Presiding Officer to declare him duly elected as the Chairman, as no other member would be competent or qualified to stand for the election. Thus it is primarily the question of the competence of the candidates to stand for the election. A plain reading of sub‑rule (3) leaves one in no manner of doubt that it is only after a proposal has been made by one member present in the meeting and seconded by another, that the person proposed becomes a candidate. The proviso allowing other members to propose their own names would come into play only in case there is no candidate in the field whose name has been duly proposed or seconded. This would be clear from the opening sentence of the proviso itself.
Even if it is presumed that the petitioner failed to raise an objection to the illegal entertainment of self‑made proposals of the respondent and others, the Presiding Officer should have performed his function in accordance with law, and declared him elected. The subsequent participation in the election by the petitioner was necessitated by or at any rate was the result of an illegal act of the Presiding Officer and shall by no means be so construed as to recoil on him.
The two alternative positions, the one envisaged by the enacting provision of sub‑rule (3) and the other by the first proviso, are mutually exclusive and cannot exist simultaneously, the latter depending on the non‑existence of the former eventuality.
The question of the provision being Imperative or directory in nature, does not appear to be relevant. The basic principle of interpretation of statutes is to gather and Infer the true intention of the Legislature and in the words of Scot, L. J. where the words of an Act of the parliament are clear, there is no room for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity under the statute.
It can hardly be doubted that the language of the relevant rules construed in the ordinary and natural sense, leaves absolutely no room for any ambiguity or doubt as to the real intention of the Legislature from which one cannot escape the irresistible conclusion that in the circumstances of the instant case the second proviso could not be invoked with any semblance of justification. This well‑known and recognised view has been repeatedly expressed by different authorities quoted by Maxwell, and it is hardly necessary to multiply citations to show that once the intention of the Legislature is clear, it is safer to ignore the rules of interpretation.
However, even if considered from the point of view of the provision being imperative or directory, the order in which the two provisions are mentioned in the rule under discussion, the contingent nature of the first proviso and the use of the word "shall" both in sub‑rule (3) and sub‑rule (5) clearly indicate that the provision is imperative and mandatory in nature dealing with the competence and essential qualifications of a candidate; and is not merely an instruction of a directory nature. In fact the ambiguity would arise only if there is some omission or lacuna in the statute leaving one to guess or gather the intention of the Legislature.
Considered from the point of view of convenience and justice, it appears only too meet and proper that a person who alone qualifies to be a validly nominated candidate within the meaning of the enacting provision of sub‑rule (3) should be straightaway declared as elected in terms of rule 5, there being no occasion for an election.
The most important consideration invariably weighing with the Courts in election cases has been whether the non‑observance has materially affected the result of the election.
The silence of the petitioner or his failure to object to the candidature of other and his subsequent participation in the election would not be relevant so as to estop him from raising this issue, there being no estoppal against the statute.
According to the procedure prescribed in sub‑rule (3) of rule 4 a member shall be deemed to be a candidate for the office of the Chairman only if his name is proposed by a member and seconded by, another member. The two provisos to this sub‑rule, however, contemplate situations where no member is proposed and seconded in accordance with sub‑rule (3). The second proviso should have really come first as it deals with a situation which would arise ifs proposal is made but not seconded, whereas the first proviso deals with a situation in which no proposal is made by any member regarding the candidature of any other member. In such a situation the first proviso permits a member to propose his own name, and he will be deemed to be a candidate without the proposal being seconded. It is clear that the two provisos to sub‑rule (3) would come into play only if there is no duly constituted candidate in accordance with the sub‑rule itself.
The respondent not being disqualified from offering himself as a candidate, and the members present at the meeting having freely exercised their vote, the mere irregularity in the manner of the respondent setting himself up as a. candidate for election to the office of Chairman cannot be held to amount to a material irregularity such as would vitiate the result of the election.
Sub‑rule (3) of rule 4 of the Basic Democracies (Election of Chairman) Rules, 1960 is to be regarded as directory in nature; that in order to avoid an election on account of a violation of this sub‑rule it must be shown, in terms of rule 7(2) of the same Rules, that it amounts to a material irregularity; and that in the circumstances of the present case the defect in the candidature of the respondent arising due to the non‑observance of this sub‑rule did not amount to a material irregularity, with the result that the respondent's election as Chairman of the Union Council In question cannot be described as being without lawful authority. In the alternative, it also appears that the petitioner not having objected to the Irregular candidature of the respondent and having participated in the election in the hope of winning it, is disentitled from seeking the discretionary relief available under Article 98 of the Constitution.
Muhammad Nawaz Khan v. Ghulam Farid and another P L D 1963 S C 623 ; Rana Mohammad Jamil v. Punjab Road Transport Board P L D 1957 Lah. 1 and Zain Noorani v. Secretary of National Assembly P L D 1957 S C 46.
Art. 98‑Provision to statute giving finality to order passed by Tribunal constituted thereunder.‑‑High Court acting under Art. 98 could, nevertheless, invoke its superior authority to interpret relevant statute in respect of limitations upon jurisdiction and scope and authority conferred by such statute.
Jamal Shah v. Election Commission P L D 1966 S C 1 rel.
Art. 98‑‑Petitioner seeking declaration that he is properly elected Chairman under West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 and challenging order of Controlling Authority declaring other candidate as duly elected Chairman on ground of orders of Election officers being without lawful authority‑Relief can be granted r Art. 98(2) (ii) (a) (Per Auwarul Had, J.).
Art. 98‑Petitioner acquiescing in irregular proceeding‑Not entitled to discretionary relief under Art. 98.
In the matter of discretionary relief under Article 98 of the Constitution the Court is entitled to look at the conduct of the petitioner and to refuse this relief if it finds that the petitioner himself stood by at the proper time in the hope that he might achieve a favourable result by participating in the alleged irregular proceedings.
Haji Ghulam Nabi v. Settlement and Rehabilitation Commis sioner, Karachi and others P L D 1962 Kar. 786; Ghulam Mohy ud‑Din v. Chief Settlement Commissioner, Lahore, and others P L D 1964 S C 829 and Aziz‑ur‑Rehman Chauahary v. Nasiruddin etc. P L D 1965 S C 236 ref.
, Art. 39 (4)‑Scope.
It is clear that the obvious intention of this provision of law is to save tile legality of proceedings in which a person not qualified to participate might have taken part, but this provision cannot be interpreted to validate the election of a person who was not qualified to offer himself as a candidate.
Muhammad Nawaz Khan v. Ghulam Farid and another P L D 1963 S C 623 ref.
Art. 98---"Other adequate remedy"‑‑Meaning.
Ordinarily the words "alternative remedy" or "other adequate remedy" (as stated in Article 98 (2) of the Constitution) are taken to man an equally efficaciaus alternative legal or administrative remedy provided by law, and do not embrace political remedies such as a "no‑confidence motion".
M. A. Bajwa for Petitioner.
Raja, Said Akbar Khan and Mohammad Ashraf for Respon dent No. 1.
Nemo for Respondents Nos. 2 and 3.
Dates of hearing : 11th &,12th July and 16th November 1966.
The petitioner, Malik Muhammad Din, contested the election to the office of Chairman of Union Council, Trigri, in the Gujranwala District, held on the 18th of January 1966. His name was proposed by another member named Muhammad Sharif and seconded by a member named Haleem‑ud‑Din. There was no other name proposed or seconded in accordance with Rule 4 of the Election of Chairman Rules, 1960. However, three other members, namely, Babu Fazal Karim, Ch. Faqir Muhammad and Ch. Nur Muhammad then proposed their own names which were not seconded by any other member. At the voting which followed, the petitioner and Babu Fazal Karim each obtained four votes, whereas Ch. Nur Muhammad and Ch. Faqir Muhammad obtained one vote each.
As a result, lots were drawn between the petitioner and the respondent, Fazal Karim, and the latter was declared elected.
2. The petitioner thereupon filed an election petition challenging the election of Babu Fazal Karim on two grounds:‑
(a) that Babu Fazil Karim was not a candidate in terms of Rule 4 of the relevant rules, as in the presence of a proposal duly seconded, no member could propose his own name; and
(b) that in any case one of the votes counted in favour of the respondent, Fazal Karim, was not correctly marked in accordance with sub‑rule (3) of rule 5.
3. The Controlling Authority rejected both these contentions and dismissed the petitioner's election petition. The learned authority observed that "a candidate under the law can definitely propose his own name" and secondly that "although the ballot paper in question bad not been marked strictly in accordance with sub‑rule (3) of rule 5, yet the cross mark was against the name of the respondent, and therefore it was rightly counted in his favour".
4. In the present petition under Article 98 of the Constitu tion the legality and correctness of the order passed by the Con trolling Authority have been challenged before us mainly on the ground that the respondent Babu Fazal Karim could not be regar ded as a candidate at all in terms of Rule 4 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 (hereinafter referred to as the Rules), and accordingly the petitioner was entitled to be declared elected unopposed on account of being the only candidate who had been duly proposed and seconded.
5. In order to appreciate this contention it would be profitable to reproduce Rule 4 at this stage:‑
"4. Election of Chairman:‑--
(1) After the oath of office has been administered to all the members of the Basic Democracy present at the first meeting held under the West Pakistan Local Councils (Assumption of Office) Rules, 1960, the Presiding Officer shall call upon the members to elect the Chairman.
(2) Any member of a Basic Democracy, whether elected or appointed, will be eligible for election as Chairman.
(3) Any member present at the meeting may propose the name of any other member as the Chairman and if another seconds the proposal, the person proposed shall be deemed to be a candidate for the office of the Chairman (hereinafter referred to as a "candidate")
Provided that if none of the members present proposes the name of any member as a Chairman any member may propose his own name and thereupon he will be deemed to be a candidate:
Provided, however, that if no proposal is seconded the member proposed shall be deemed to be a candidate.
(4) A candidate may withdraw his candidature before the Presiding Officer proceeds to declare the result or to take the oil as the case may be.
(5) If there is only one candidate, that candidate shall be declared by the Presiding Officer to have been duly elected as the Chairman. If there are more candidates than one, the issue shall be decided by taking a poll."
G. It will be seen that according to the procedure prescribed in sub‑rule (3) of rule 4 a member shall be deemed to be as candidate for the office of the Chairman only if his name is proposed by a member and seconded by another member. They two provisos to this sub‑rule, however, contemplate situations where no member is proposed and seconded in accordance with sub‑rule (3). The second proviso should have really come first as it deals with a situation which would arise if a proposal is made but not seconded, whereas the first proviso deals with a situation in which no proposal is made by any member regarding the candidature of arty other member. In such a situation the first proviso permits a member to propose his own name, and he will be deemed to be a candidate without the proposal being seconded. It is clear that the two provisos to sub‑rule (3) would come into play only if there is no duly constituted candidate in accordance with the sub‑rule; itself. Now, in the present case the petitioner was a candidate who had been duly proposed and seconded in the manner prescribed by sub‑rule (3) of rule 4, and accordingly the two provisos were not attracted. If, therefore, the provisions of sub‑rule (3) are regarded as mandatory, it is clear that only the petitioner was the duly constituted candidate for the office of Chairman, and he had a right to be declared elected unopposed under sub‑rule (5) as the respondent Babu Fazal Karim and the other two persons, who proposed their own names, could not tee considered as candidates In the presence of the petitioner.
7. It was, however, contended by Raja Said Akbar, the learned counsel for the respondent Babu Fazal Karim:‑
(a) That the present petition was not maintainable : (i) as the Controlling Authority had jurisdiction to interpret the relevant rule rightly or wrongly, and a mere erroneous interpretation of the law did not attract the extraordinary ,jurisdiction of the High Court, and (ii) that under rule 7 of the Rules the election could be called in question only by an election petition presented to the Controlling Authority,
(b) that the relief claimed in the petition did not fall within the ambit of Article 98 of the Constitution and should riot, therefore, be granted to the petitioner,
(c) that the petitioner had disentitled himself to the discretionary relief available under Article 98 by his own conduct, namely, by participating in the election and taking a chance of winning the same,
(d) that under Article 39(4) of the Basic Democracies Order, 1959 the proceedings of the meeting of the Union Council at which election of the Chairman was held, could not be invalidated simply on account of the participation of an unqualified candidate,
(e) that, in any case, on a true interpretation of the relevant rule it, would be found that it was merely directory ire nature and a violation thereof did not mount to a material irregularity touching the result of the election within the meaning of sub rule (2) of rule 7 of the Rules under which the election was held, and
(f) that an alternative remedy was open to the petitioner by way of a "Motion of No‑confidence" against the respondent.
8. The first contention has no force in view of the observa tions made by their Lordships of the Supreme Court in the well‑known case of Jamal Shah v. Election Commission (PLD 1966 SC 1). On page 26 of the Report, the learned Chief Justice has observed that "it must be remembered that a requirement of finality of determination contained in the Constitution is to be placed on a wholly different and certainly at a much higher level than provisions in sub‑constitutional statutes giving finality to the determination of Tribunals constituted thereunder. In the latter case, a High Court acting under Article 98 could indeed invoke its superior authority to impose upon such statutory Tribunal, despite the finality given to its determination, the requirement that its actions should be within its jurisdiction, that they could not be in defeat of jurisdiction, and that such action should be shown to have been performed with lawful authority. In the absence of a valid provision baring such interference, the High Court acting under Article 98 would, I conceive, have the autho rity to interpret the relevant statutes, in respect of the limitations upon jurisdiction, the obligations to exercise the jurisdiction, and the scope of the authority conferred by such statute'. It would appear from these observations that the High Court, in a case like the present, has the authority to interpret the relevant statute, namely, the Election of Chairman Rules in the present case.
9. The second objection raised by Raja Said Akbar, namely, that the petitioner was, in substance, seeking a writ in the nature of quo warranto and, therefore, he could not at the same time make a prayer for a declaration that he is the properly elected candidate on the ground that the action taken or the orders passed by the election officials were without lawful authority, is a mere technicality, as in the grounds given by the petitioner it is clearly asserted that he was the only duly nominated candidate and entitled to be declared elected; and in the relief clause it is also prayed that the action taken by the Presiding Officer as well as the order passed by the Controlling Authority was without lawful authority and of no legal effect. This is thus not a petition seeking merely a writ in the nature of quo warranto, but also for a declaration as contemplated by sub‑clause (ii) of clause (a) of Article 98 (2) of the Constitution. The relief claimed is, therefore, clearly within the ambit of Article 98.
10. As regards the third objection, it is correct that the petitioner did participate in the election which he is now challeng ing. In Paragraph 4 of his petition he has, however, asserted that the Presiding Officer, respondent No. 2, in spite of an objection by the petitioner proceeded to have a poll of votes of the members present in favour of all the four candidates". In the written statement on behalf of the contesting respondent Batu Fazal Karim, the contents of this paragraph have been controverted in the following terms:‑
"Para. No. 4 is vehemently denied as it is wholly wrong. The petitioner did not raise any objection to the procedure of election and the Presiding Officer rightly and validly held a poll of votes of all the members present."
11. It will be seen that the question whether the petitioner had indeed objected to the irregularity attaching to the candidature of the respondent Babu Fazal Karim has become a disputed question of fact, in view of the strong denial contained in the written statement. There is no mention of this objection in the proceedings of the election as recorded by the Presiding Officer. In these circumstances, it is difficult to hold that the petitioner indeed objected to the irregularity in question. There is substance in Raja Said Akbar's contention that the petitioner participated in the election in the hope of being elected, and is aggrieved by the alleged irregularity in procedure only because he has not succeeded. The learned counsel for the respondent referred us to Haji Ghulam Nabi v. Settlement and Rehabilitation Commissioner, Karachi, and others (P L D 1962 Kar. 786) Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner, Lahore, and others (P L D 1964 S C 829) and Aziz‑ur Rehman Chaudhary v. Nasiruddin etc. (P L D 1965 S C 236). In support of his submission that before granting any relief to the petitioner we must take note of his own conduct in participating in the election without objecting to the irregularity in the candidature of the contesting respondent. The authorities cited by Raja Said Akbar, although not relating directly to election matters, do lend support to his contention that in the matter of discretionary relief under Article 98 of the Constitution the Court is entitled to look at the conduct of the petitioner and to refuse this relief if it E finds that the petitioner himself stood by at the proper time in the hope that he might achieve a favourable result by participa ting in the alleged irregular proceedings. A similar situation does seem to me to be present in the instant case. Accordingly, I would be inclined to refuse to grant any relief to the petitioner on account of his participation, without objection, in the impugned election in the hope that he might get elected.
12. The next contention that the proceedings of the meeting in question where the respondent was elected as Chairman cannot be said to be vitiated on account of the participation of an unqualified candidate, is somewhat misconceived. The provision on which Raja Said Akbar relies is Article 39 (4) of the Basic Democracies Order, 1959 to the effect that "no proceedings of a Local Council shall be invalid by reason only of the existence of any vacancy in or any defect in .the constitution of the council, or by reason only that some person, who was not entitled to do so, sat or voted or otherwise took part in its proceedings." It is clear that the obvious intention of this provision of law is to save the legality of proceedings in which a person not qualified to participate might have taken part, but this provision cannot be interpreted to validate the election of a person who was not qualified to offer himself as candidate. It is true that in Muhammad Nawaz Khan v. Ghulam Farid and another (P L D 1963 S C 623) their Lordships held that Article 39 (4) was applicable even to a meeting where the first election of the Chairman of a Union Council took place, but they did not lay down that this Article would operate so as to validate an irregular candidature. This particular contention must, therefore, fail.
13. I now take up the next contention raised by the learned counsel for the respondent, which in fact is the material question to be considered in this case, namely, that the provisions of sub rule (3) of rule 4 of the Rules are to be regarded as merely directory in nature, for the reason that they only prescribe a procedure for conducting the election to the office of Chairman and no penalty is prescribed by the statute for a non‑observance of the same. It was submitted by Raja Said Akbar that the rule being directory, the election of the respondent would be vitiated only if it is found that its violation amounted to a material irregularity within the meaning of sub‑rule (2) of rule (7) of the Rules which deals with election petitions. The learned counsel finally contended in this behalf that a mere procedural defect attaching to the candidature of the respondent could not be regarded as a material irregularity in view of the dictum of their Lordships of the Supreme Court in Muhammad Nawaz Khan v. Ghulam Farid and another to which reference has already been made in another connection.
14. On the question whether the provisions of sub‑rule (3) of rule 4 of the rules are to be regarded as mandatory or directory in nature, it has to be observed that, as laid down, for instance in Rana Mohammad Jamil v. Punjab Road Transport Board (P L D 1957 Lah. 1) that:‑‑
"The question whether a particular provision in an enactment though ostensibly in the imperative form, is really mandatory or directory, is a question of some nicety and no hard and fast rule can be laid down for the exact construction to be placed on such a provision in all cases. In each case, the scope and object of the Act and of the particular provision would be relevant to the real intention of that Legislature in this respect. Generally speaking when the provision charges some public authority with a duty and no express or clearly implied indication is given by the Legislature that the failure to conform to the letter of the law would entail the drastic consequences of invalidation, and further such invalidation would result in unmerited injustice or serious general inconvenience to members of the public or other persons to be specially affected, the public or those persons having no effective control over the actions of the authority concerned, the provision is construed as carrying a directory rather than a mandatory connotation."
15. A similar principle was laid down in Zain Noorani v. Secretary of National Assembly (P L D 1957 S C 46) in which it was held that Article 141, of the 1956 Constitution of Pakistan laying down a time limit for filling a casual vacancy in the National or the Provincial Assembly was directory, and the object of a time limit was to secure the prompt holding of by‑elections. In coming to this conclusion their Lordships relied upon a passage appearing in Maxwell's Interpretation of Statutes to the following effect:‑
"On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seems to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time."
16. It seems to me unnecessary to multiply the authorities on this point, as the principle of interpretation is clear from the two citations given above. Now, the present case seems to present a curious mixture of both the elements, namely, a public duty cast on the election officials to ensure that a candidate is duly nominated before participating in the election to the office of Chairman, and a duty resting upon the candidate to see that he is so nominated before he takes part in. the election. If the Presiding Officer had performed his public duty properly he could pot have permitted the respondent to take part in the election, but once the respondent was permitted, it is clear that at least four voters have expressed their choice clearly in his favour, and the question is whether their votes should be wasted on account of the failure of the Presiding Officer to point out that the respondent was not a duly constituted candidate. In these circumstances, the proper view to take appears to me to regard the rule in question as merely directory for the reason that it only prescribes a, procedure for a, member of the Union Council to set himself up as a candidate for election to the office of Chairman; and that it does not lay down the essential qualification of mem ber to be elected as a Chairman, that qualification being contained in sub‑rule (2) of rule 4 to the effect that "any member of a Basic Democracy, whether elected or appointed, will be eligible for election as Chairman". In other words, there was no inherent disqualification attaching to the respondent so as to prevent him from offering himself as a candidate at this election. If it had been pointed out at the relevant time that he could not be considered as a duly nominated candidate unless and until he was proposed and seconded in accordance with sub‑rule (3) of rule 4, it is clearly possible, in view of the fact that the respon dent obtained four votes, that the requirement of the sub‑rule would have been complied with before the polling took place. For these reasons, I would regard the rule as directory in nature rather than mandatory,
17. Once sub‑rule (3) of rule 4 it regarded as directory in nature, the next question which needs consideration is whether the violation of this sub‑rule was or not a material irregularity within the meaning of sub‑rule (2) of rule 7 of the Rules which deals with election petitions and lays down that "the Controlling Authority may after such inquiry as may be necessary uphold the election of a Chairman, or declare an election as void for any material irregularity or any sufficient reason to be recorded".
18. It has already been stated that there was no inherent disqualification attaching to the respondent so as to prevent him from offering himself as a candidate for election to the office of Chairman. At the election which was, in fact, held on this occasion, all the members, present cast their votes so as to freely express their choice from among the contesting candidates, and the respondent did obtain the requisite majority of votes. The petitioner voluntarily participated in this election, and it is not alleged that any person, not qualified to vote, took part in the election so as to make up the requisite majority for the respon dent. In these circumstances, I am of the view that the defect attaching to the candidature of the respondent, a defect of a technical nature indeed, cannot be regarded as a material irregularity touching the result of the election.
19. In the case of Muhammad Nawaz Khan to which reference has already been made, their Lordships of the Supreme Court were considering a more or less similar situation. The successful candidate for the office of Chairman of the Union Council in that case had been proposed by a person who was not qualified to be a member of the Basic Democracy concerned on account of his being below twenty‑five years of age. It was clear, therefore, that there was a defect in the candidature of the successful candidate for the reason that he had not, in fact, been proposed at all by a member of the Basic Democracy. While dealing with this question the learned Judges observed as under:‑--
"The rule provides that the election can be set aside on the ground of material irregularity or any sufficient reason. The question to be decided by the High Court was whether any material irregularity or sufficient reason had been established before the Controlling Authority on the basis of which the election could be set aside. It had not even been alleged by the appellant that the irregularity relied upon was material. There was no plea that Abdul Majid who proposed the name of the respondent had voted for the respondent and that if his vote was not counted the result of the election would be affected. The only question for consideration was whether the fact that the member who proposed the name of the respondent was not qualified to be a member was a sufficient reason' for setting aside the election. According to Article 39 (4) the fact that the person who voted was not entitled to vote does not by itself vitiate any proceeding and it cannot, therefore, be said that this could constitute sufficient reason'. At the same time it is difficult to accept that irregularities which are not material can be 'sufficient reason'. The ground of attack is admittedly an irregularity and anomaly would be created if immaterial irregu larities could be made a ground for setting aside an election by bringing them within 'sufficient reason'. Irregularities having been separately dealt with should be deemed to have been excluded from sufficient reason'."
20. It is true that in the arguments addressed before their Lordships the defect in the candidature was not alleged to be a material irregularity, but it is clear that if indeed in the view of their Lordships the defect did amount to a material irregularity, they would have said so, notwithstanding the submissions made on behalf of the defeated candidate. The observations quoted above clearly point to the conclusion that in the opinion of the learned Judges of the Supreme Court the technical defect in the candidature of the successful candidate was no doubt an irregularity which, however, was not material, so as to avoid the result of the election. Speaking with respect, in my view the same considerations apply in the present case. The respondent not being disqualified from offering himself as a candidate, and the members present at the meeting having freely exercised their G vote, the mere irregularity in the manner of the respondent setting himself up as a candidate for election to the office of Chairman cannot be held to amount to a material irregularity such as would vitiate the result of the election.
21. In view of the conclusion that I have reached regarding the directory nature of the rule in question and the fact that its violation did not amount to a material irregularity in the circumstances of the present case it is really not necessary to examine the next objection put forward by Raja Said Akbar, the learned counsel for the respondent, to the effect that an alternative remedy by way of "a Motion of No‑confidence" against the respondent is also open to the petitioner. However, suffice it to say that ordinarily the words "alternative remedy" or "other adequate remedy" (as stated in Article 98 (2) of the Constitution) are taken to mean an equally efficacious alternative , legal or administrative remedy provided by law, and do not embrace political remedies such as a "no‑confidence motion".
22. The position, therefore, which emerges from the forego ing discussion is that sub‑rule (3) of rule 4 of the Basic Demo cracies (Election of Chairman) Rules, 1960 is to be regarded as directory in nature; that in order to avoid an election on account of a violation of this sub‑rule it must be shown, in terms of rule 7 (2) of the same Rules, that it amounts to a material irregularity; and that in the circumstances of the present case the defect in the candidature of the respondent arising due to the non‑observance of this sub‑rule did not amount to a materia: irregularity, with the result that the respondent's election as Chairman of the Union Council in question cannot be described as being without lawful authority. In the alternative, it also appears that the petitioner not having objected to the irregular candidature of the respondent and having participated in the election in the hope of winning it, is disentitled from seeking the discretionary relief available under Article 98 of the Constitution. For these reasons, I would dismiss this petition but, in view of the legal questions involved, leave the parties to bear their own posts,
During the several weeks that it has been my privilege to sit in U. B. with my learned brother S. Anwarul Haq, J. this is the first occasion that I have not been able to persuade myself to agree with his Lordship in spite of my keen and respectful desire to bow before his view. To write a note of dissent becomes all the more embarrassing for me when I take into consideration the recognised brilliance, erudition and wide experience of my learned brother, and it is certainly with no small diffidence that I am constrained to express a different view.
2. There are two grounds which have led his Lordship to the conclusion of dismissal of this petition, namely, the conduct of the petitioner in having participated in the election and the directory nature of the provisions of sub‑rule (3) of rule 4 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. In the well‑reasoned judgment these inferences have been sought to be fully supported by authorities whit which I will presently deal.
3. Taking the second point first that the provisions of sub‑rule (3) of rule 4 of the aforesaid rules are directory in nature, I would like to submit with the utmost respect that in the first instance the question of the rule being directory or mandatory would not be quite relevant and in any case the provisions of sub‑rule (3) and sub‑rule (5) of rule 4 considered together lend support to the inference of imperativeness. In case there is only one candidate in the field as contemplated by sub‑rule (5), it is abundantly clear that a duty is cast on the Presiding Officer to declare him duly elected as the Chairman, as no other member, would be competent or qualified to stand for the election. Thus it is primarily the question of the competence of the candidates to stand for the election. A plain reading of sub‑rule (3) leaves one in no manner of doubt that it is only after a proposal has been made by one member present in the meeting and seconded by another, that the person proposed becomes a candidate. The proviso allowing other members to propose their own names would come into play only in case there is no candidate in the field whose name has been duly proposed or seconded. This would be clear from the opening sentence of the proviso itself which reads as follows:‑
Rule 4 (3)‑"Provided that if none of the members present proposes the name of any member as a Chairman any member may propose his own name and thereupon he will be deemed to be a candidate:
Provided, however, that if no proposal is seconded the member proposed shall be deemed to be a candidate."
Admittedly when proposals were invited after the members were administered the oath of office, the name of the petitioner alone was subscribed by two electors as proposer and seconder, and as such being the only candidate in the field, it was incumbent on the Presiding Officer to declare him elected unopposed under sub‑rule (5) of rule 4. The Presiding Officer should not have proceeded to entertain the self‑proposed candidacy of the other members within the meaning of the first proviso to sub‑rule (3) of rule 4 for which there was no occasion to come into operation. A perusal of the proceedings bf the meeting clearly indicates that the Presiding Officer not appreciating the correct legal position, did not pause for a while to consider the legal consequences of the fact that there was a solitary proposal before him duly made and seconded, and on the contrary hastened to consider if not actually invite self‑made proposals of the other members present. If the statutory provisions had been properly complied with, no such self‑proposed candidature could have been considered. It was obviously on account of this erroneous impression and patently wrong interpretation of the rules on the part of the Presiding Officer which created all the subsequent complications. Under the law, the petitioner alone was a duly nominated candidate who should have been declared elected unopposed.
4. In election laws of a democratic society, validity of candidature is of fundamental importance, and the normal proce dure of a proposal being matte and seconded by two other persons qualified to vote, is of the assence of democracy. The reason for this rather unusual and undemocratic, additional provision of self‑styled candidature is not far to seek. A situation could easily be envisaged where each of the handful of members' meeting to elect a Chairman might himself be anxious to he elected despite his failure to enlist the sympathy or support of a single other member, ready to propose his name. It was obviously to meet such an eventuality that the provisos to the enacting provision of sub‑rule (3) of rule 4 were added as an alternative provision. If there is only one such candidate in the field, as provided in the enacting part of sub‑rule (3) of rule 4, he is to be straightway declared as elected and that is the end of the matter. In my humble view, the Presiding Officer is left with no choice or option but to do so in compliance with the rule.. If, however, the Presiding Officer proceeding of a wrong notion invites or entertains self‑proposed nominations, this would be an illegal act not warranted by law. In such circumstances, a self‑proposed candidature has no locus standi to participate in the election, and neither the failure on the part of a validly nominated candidate to object to his participation nor his actual defeat at the hands of such a candidate of invalid candidature can cure or validate such an illegality inasmuch as the only germane consideration is that of the competence of other candidates to stand for the election who in view of the enacting part of rule 4(3) certainly did not qualify. Even if it is presumed that the petitioner failed toy raise an objection to the illegal entertainment of self‑made pro posals of the respondent and others, the Presiding Officer should have performed his function in accordance with law, and declared him elected. The subsequent participation in the election by the petitioner was necessitated by or at any rate was the result of an illegal act of the Presiding Officer and shall by no means be so construed as to recoil on him.
5. The fact that his adversary whose invalid candidature has no legal sanction behind it, had pocketed an equal number of votes in the election, would in my opinion have no relevancy whatsoever, as he had no locus standi to contest the election failing to enlist the support of even one member who could propose his name,
6. The two alternative positions, the one envisaged by the enacting provision of sub‑rule (3) and the other by the first proviso, are mutually exclusive and cannot exist simultaneously y the latter depending on the non‑existence of the former eventuality. In the circumstances of the instant case there being no occasion for the invocation or operation of the first proviso, the enacting provision must have been allowed to prevail.
7. Considered from yet another point of view, the question of the provision being imperative or directory in nature, does not appear to be relevant. The basic principle of interpretation of statutes is to gather and infer the true intention of the Legislature N and in the words of Scot, L. J. where the words of an act of the parliament are clear, there is no room for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity under the statute. (Chapter V, page 65, Craies on Statute Law, VI Edition). Maxwell has reiterated the same principle in the opening paragraph of his "Interpretation of Statutes" in the following words:‑-
"A statute is the will of the Legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded "according to the intent of them that made it". If the words of the statute are in them selves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. The object of all interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language used, so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it."
It can hardly be doubted that the language of the relevant rules construed in the ordinary and natural sense, leaves absolutely no room for any ambiguity or doubt as to the real intention of the Legislature from which one cannot escape the irresistible conclusion that in the circumstance of the instant case the second proviso could not be invoked with any semblance of justification a This well‑known and recognised view has been repeatedly expressed by different authorities quoted lay Maxwell, and it: is hardly necessary to multiply citations to show that once, the intention of the Legislature is clear, it is safer to ignore the rules of interpretation.
8. However, even if considered from the point of view of the provision being imperative or directory, the order in which the two provisions are mentioned in the rule under discussion, the contingent nature of the first proviso and the use of the word "shall" both in sub‑rule (3) and sub‑rule (5) clearly indicate that the provision is imperative and mandatory in nature dealing with the competence anti essential qualifications of a candidate, and is not merely an instruction of a directory nature. In fact the ambiguity would arise only if there is some omission or lacuna in the statute leaving one to guess or gather the intention of the Legislature, as would be clear from the following quotation from Maxwell under the heading "Imperative or Directory":‑--
"When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non‑compliance, the question often arises : What intention is to be attributed by inference to the Legislature Where, indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention."
9. Considered from the point of view convenience and justice, it appears in my humble opinion only too meet and proper that a person who alone qualifies to be a validly nominated t candidate within the meaning of the enacting provision of sub‑rule (3) should be straightaway declared as elected in terms of rule 5, there being no occasion for an election. In the words of Maxwell:‑--
"Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is there fore, probable that such was the intention of the Legislature."
On the contrary, it is quite understandable that:‑‑-
"To hold that an Act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty, made a list not delivered till a later day invalid, would, in effect, put it in the power of the person charged with the duty of preparing it to disfranchise the electors, a conclusion too unreasonable for acceptance."
(Maxwell, page 369).
A little further in the same context it was observed by Maxwell:‑--
"The regulations for the conduct of elections under the Ballot Act, 1872 which held to be so far only directory that an election was not invalidated by the non‑observance of them unless the non‑observance was of a character contrary to the principle of the Act, or might have affected the result of the election."
The most important consideration invariably weighing with the Courts in election cases has been whether the non‑observance has l materially affected the result of the election. It cannot be doubted that in the instant case it has done so.
10. Having gone through the impugned proceedings before the Presiding Officer, I find it difficult to hold that it was a case of waiver or acquiescence on the part of the petitioner who after having participated in the election could not turn round and challenge the validity of the proceedings. Even otherwise in the words of Maxwell:‑
"A person has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only, or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation".
"But when public policy requires the observance of the provision, it cannot be waived by an individual . . . . . . . ."
As stated earlier in my humble view the silence of the petitioner or his failure to object to the candidature of other and his subsequent participation in the election would not be relevant so as to estop him from raising this issue, there being no estoppel against the statute.
11. Coming now to the authorities relied upon by the learned counsel for the respondent and also favourably considered by my learned brother, on the question of the conduct of the petitioner for having participated in. the election, it may be observed with the utmost respect that the facts of these cases are quite distinguishable from those of the case under examination and none of the three authorities mentioned in this regard, 'namely, Haji Ghulam Nabi v. Settlement and Rehabilitation Commissioner, Karachi, and another (P L D 1962 Kar. 786) Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner (Pakistan) Lahore and others (P L D 1964 S C 829) and Azizur Rehman Chaudhary v. M. Nasirud Din and others (P L D 1965 S C 236) applies with full force. In the first authority their Lordships of the Karachi Bench while dealing with a settlement writ relying on an observation by Channel, J. in King v. William and others ((1914) 1 K B 608). observed as follows:----
"It seems to be the view of English Courts that before a question of jurisdiction is raised on a petition objection to jurisdiction must be taken before the Tribunal whose order is being challenged."
From the relevant passage from Channel, J. the following reproduction would suffice:‑-
"No objection was taken to the jurisdiction of the Court below at the hearing before that Court; that being so, it is the rule of this Court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the Court below of the facts on which he bases his objection."
In the same case reference was also made to the following observa tion by Rowlet, J. while sitting with Channel, J.:‑-
"If he takes up the position of a party aggrieved, then Reg. v. Justices of Surrey shows that he can by his conduct debar himself from his right ex debito justitiae. It is a very salutary rule that a party aggrieved must either show that he has taken his objection at the hearing below or state on his affidavit that he had no knowledge of the facts which would enable him to do so."
The position clearly taken up by the petitioner in the instant case is that he did raise such an objection before the Presiding Officer before participating in the election. and this, averment, is supported by an affidavit. In my opinion the condition regarding objection to the jurisdiction of the Presiding Officer, laid down by their Lordships should be presumed to have been fulfilled notwithstanding the categorical denial of the same by the respondent, for the reason that a perusal of proceedings recorded by the Presiding Officer strongly gives an impression that he was labouring under an erroneous notion, and not appreciating the correct legal position; straightaway allowed the other members to propose their own names after the name of the petitioner had been duly subscribed by two electors. As discussed earlier, such a waiver or acquiescence on the part of the petitioner in a case of a clear illegality should not be allowed to debar him from raising the question by invoking the writ jurisdiction of this Court after an unsuccessful recourse to the remedy open to him in the first instance before the Election Tribunal.
12. In the second authority P L D 1964 S C 829, their Lordships of the Supreme Court, while dealing with an appeal in a settlement writ, observed as follows:‑--
"In the present case there can be no doubt that the‑ appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance, which prevented the Settlement Commissioner in law from exercising his power of review: Notwithstanding this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. In the writ petition also the appellant did not assert that he was unaware that the filing of the second revision petition debarred the Settlement Commissioner in law from reviewing his previous order. The appellant, therefore, knowing the true legal position deliberately allowed the Settlement Commissioner to commit an illegality. In these circumstances, it cannot be said that he was a mere passive spectator having no, power to prevent the commission of the illegality. The principle upon which the writ is refused in such cases is not that jurisdiction bas been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have if quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality In consequence of something done by that person himself."
It can be straightaway stated in all fairness that the facts and circumstances of the case before us are quite distinguishable from those of the one before their Lordships of the Supreme Court, and as such the authority could not be properly invoked In the instant case.
13. Coming now to the last authority in this regard, P L D 1965 S C 236, the following extract from the observations of their Lordships would be good enough to distinguish the two cases. While referring to a writ of quo warranto, their Lordships observed:‑---
"The Court from which the writ was sought was entitled to enquire into the conduct and motives of the appellant for such a writ and if the information was considered to be merely of a vaxatious nature the Court was entitled to refuse to exercise its discretion in favour of the appellant. Thus where the issuance of the writ would disturb the peaceful and orderly functioning of a corporation the Court is entitled to refuse the writ on the ground that to do so would be merely vaxatious, particularly, where its consequence would be, as in the present case, to place the company back in the hands of those who were mis‑managing its affairs and illegally removing its assets to another country."
While dealing with these authorities in paragraph 11 of the judgment my learned brother observed as follows:‑--
"The authorities cited by Raja Said Akbar, although not relating directly to election matters, do lend support to his contention that in the matter of discretionary relief under Article 98 of the Constitution the Court is entitled to look at the conduct of the petitioner and to refuse this relief if it finds that the petitioner himself stood by at the proper time in the hope that he might achieve a favourable result by participating in the alleged irregular proceedings. A similar situation does seem to me to be present in the instant case. Accordingly, I would be inclined to refuse to grant any relief to the petitioner on account of his participation without objection i4 the impugned election in the hope that he might get elected."
It may be respectfully observed that it is difficult to presume that a person who being cent per cent sure of his success on technical grounds could despite his optimism have run the risk of an election. In the circumstances of the case, it appears probable that either be did not know the correct legal position that entitled him to a declaration to be elected without a contest or alternatively did in fact raise an objection which was overruled notwithstanding the fact that it finds no reference in the proceedings. His assertion of the second alternative has already been discussed by me. In this view of the matter I find it difficult to endorse the conclusion arrived at by my learned brother in this regard.
14. Again reverting to the question whether the legal provision under examination was absolute and imperative or ways merely directory in nature, my learned brother has in support of his view relied on three authorities, namely, Rana Muhammad Jamil v. The Punjab Road Transport Board, Lahore, and others (P L D 1957 Lah. 1) Zain Noorani v. Secretary to the National Assembly of Pakistan (P L D 1957 S C 46) and Muhammad N2waz Khan v. Ghulam Farid and another (P L D 1963 S C 623). As stated earlier, in my view such an approach would not be strictly relevant. However, taking the last authority first, the Controlling Authority had set aside the election of an elected Chairman on the ground that his proposer was not qualified to make the proposal being under 25 years of age. The High Court set aside the order of the Controlling Authority on the ground that by virtue of Article 39 of the Basic Democracies Order, 1959, no proceedings could be held to be invalid on account of the fact that a person who was not entitled to vote had taken part or voted in any proceedings. Their Lordships of the Supreme Court dismissed the appeal mainly on the ground that under Rule 7 of the Basic Democracies (Election of Chairman) Rules, 1964, an election could be set aside by the Controlling Authority either on grounds of "material irregularity" or any "sufficient reason". There being no allegations of the irregularity being material, their Lordships took the view that the case was not covered by the second ground of "sufficient reason". It would be useful for proper appreciation of the dictum of their Lordships to reproduce the concluding paragraph of their Judgment:‑
"We have dealt with the argument as presented but we would point out the proper approach in a case like the present. The election petition filed against the election of the respondent had been filed under rule 7 of the Basic Democracies (Election of Chairman). Rules. This rule runs:‑--
7. Election Petition.‑(1) No election of a Chairman shall be called in question except by a petition presented to the Controlling Authority within thirty days of the declaration of the result.
(2) The Controlling Authority may after such enquiry as may be necessary, uphold the election of the Chairman, or declare the election as void for any material irregularity, or any sufficient reason to be recorded.
(3) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules."
The rule provides that the election can be set aside on the ground of material irregularity or any sufficient reason. The question to be decided by the High Court was whether any material irregularity or sufficient reason had been established before the Controlling Authority on the basis of which the election could be set aside. It had not even been alleged by the appellant that the irregularity relied upon was material. There was no plea that Abdul Majid who proposed the name of the respondent had voted for the respondent and that if his vote was not counted the result of the election would be affected. The only question for consideration was whether the fact that the member who proposed the name of the respondent was not qualified to be a member was a "sufficient reason" for setting aside the election. According to Article 39(4) the fact that the person who voted was not entitled to vote does not by itself vitiate any proceeding and it cannot, therefore, be said that this could constitute "sufficient reason". At the same time it is difficult to accept that irregularities which are not material .can be "sufficient reason". The ground of attack is admittedly an irregularity and it is not alleged that it is material. An anomaly would be created if material irregularities could be made a ground for setting aside an election by bringing them within "sufficient reason". Irregularity having been separately dealt with should be deemed to have been excluded from "sufficient reason". This appeal fails and is dismissed with costs."
It is true that the validity of candidature was also questioned in this case on the ground of disqualification of the proposer, but this aspect of the matter was not discussed by their Lordships, and as such no benefit could be derived by the respondent of the aforesaid dictum of their Lordships.
15. For detailed reasons given earlier, I need hardly discuss the other authorities relied upon by my learned brother in this regard. Suffice it to say that having come to the conclusion that the question being precisely one of the competence of the respon dent to contest the election under the provisions of rule 4, and there being no other validly nominated candidate in the field, the petitioner should have been declared elected. Allowing persons, including the respondent, to stand for the election who were certainly incompetent to do so under the rules and the non observance of the mandatory provision of rule 4(5) by the Presiding Officer to declare the petitioner as elected unopposed, were material irregularities which had affected the result of the election calling for the interference of the Tribunal who instead of rectifying them upheld the same in the impugned order which as such was illegal and should be so declared. Accordingly, the petition should be allowed.
16‑11‑1966. This writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan by Malik Muhammad Din petitioner against Babu Fazal Karim has been referred to me under Clause 26 of the Letters Patent on a difference of opinion between my two learned brothers S. A. Haq, J. and Muhammad Afzal Cheema, J.
2. The election of Chairman of Union Council Trigri in the District of Gujranwala was held en the 18th of January 1966. The meeting was attended by ten of the members. After the oath of office was administered to the members, they proceeded to elect their Chairman, Muhammad Sharif, one of the members, proposed the name of Malik Muhammad Din petitioner. Alim‑ud‑Din, another member, seconded his name. There was no other name proposed and seconded in accordance with rule 4 of the West Pakistan Election of Chairman Rules, 1960, but three members, namely, Fazal Karim, Ch. Faqir Muhammad and Ch. Noor Muhammad, proposed their own names, but their names were not seconded by any other member. The Presiding officer proceeded to hold a poll and Malik Muhammad Din petitioner and Babu Fazal Karim respondent obtained four votes each, whereas Ch. Noor Muhammad and. Ch. Faqir Muhammad obtained one vote each. A lot was drawn between the petitioner and the respondent and Fazal Karim respondent was declared elected in the result. The petitioner then filed an election petition challenging the election of Babu Fazal Karim respondent, and urged two grounds before the Controlling Authority: (1) that Babu Fazal Karim was not a candidate in terms of rule 4 of the W. P. Election of Chairman Rules, when the petitioner was duly proposed, and (2) that, in any case, one of the votes counted in favour of Fazal Karim respondent not having been correctly marked in accordance with sub‑rule (3) of rule 5, should not have been counted in his favour.
3. The Controlling Authority rejected both the contention and dismissed the petitioner's election petition. The Authority did not agree with the contention of the learned counsel for the) petitioner that the respondent could not propose his own name, when the name of the petitioner had been proposed and seconded, for in its view a candidate could propose his own name. The Authority did not uphold the second objection on the ground that the cross mark, though not placed in the appropriate column, was against the name of the respondent, which was in accordance with sub‑rule (3) of rule 5 of the Election of Chairman Rules. The order of the Controlling Authority was impugned by the petitioner by a writ petition under Article 98 of the Constitution and it was urged that the respondent had no warrant in law to hold the office of Chairman, for the petitioner was the duly elected chairman of the Union Council, and it was further prayed that a declaration be granted that the poll held and the lots drawn by the Presiding Officer were illegal and without jurisdic tion, and in the alternative that the respondent No. 3 be directed to dispose of the election petition according to law and the rules.
4. My learned brother S. A. Haq, J. came to the conclusion that as the petitioner was proposed and seconded as a candidate under sub‑rule (3) of rule 4, of the West Pakistan Election of Chairman Rules (hereafter called the Rules), the respondent could not propose his own name under this sub‑rule, but as the rule was directory and not mandatory, the defect in his candidature was of a technical nature, and as there was no inherent disqualification attaching to the respondent, it was not a material irregularity touching the result of the election within the meaning of rule 7(2) of the Rules, but he rejected the conten tion that Article 39 (4) of the Basic Democracies Order validated the irregular candidature of the respondent. As in his view the petitioner had participated in the irregular proceedings without objection in the hope that he might get elected, he felt inclined to refuse, in any case, the grant of a relief to the petitioner on account of his conduct. He, therefore, did not find the election of the respondent as Chairman as without lawful authority, and he dismissed the petition, finding the petitioner disentitled, in any case, to the grant of the discretionary relief, available under Article 98 of the, Constitution.
5. Muhammad Afzal Cheema, J. was constrained to disagree on the ground that the candidature of the respondent had no legal sanction behind it, and he had no locus standi to contest the election. In his view, the question of rule 4 (3) of the Rules being imperative or directory in nature did not arise, and as the true intention of the Legislature was clear and explicit and the words of the rule presented no ambiguity, the rule had to be applied in its plain meaning. He found the rule to be mandatory in any case. He thought it necessary from the point of view of convenience and justice that a person who was validly nominated, should be straightaway declared elected in terms of sub‑rule 5. He held the instant case distinguishable from the cases in which the petitioners were found disentitled to the grant of the discretionary relief in writ jurisdiction by reason of their conduct. It appeared to him that if the petitioner did not raise any objection to the poll, he was not aware of the correct legal position, and thus his case was different from the decisions in Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner and others and other cases. In his view, it was more probable that he did in fact raise an objection to the poll, but it was overruled by the Presiding Officer, and the objection was not recorded by the Presiding Officer, in the record of the proceedings of the meeting.
6. The points of difference between the two learned Judges have been drawn up, as required by Clause 26 of the Letters Patent, but I do not propose to refer to them, as in my view, the decision of this petition turns on the construction of sub‑rule (5) of rule 4 of the W. P Election of Chairman Rules.
7. Rule 4 of the West Pakistan Election of Chairman Rules enacts as under:‑--
"4. Election of Chairman.‑(I) After the oath or office has been administered to all the members of the Basic Democracy present at the first meeting held under the West Pakistan Local Councils (Assumption of Office) Rules, 1960, the Presiding Officer shall call upon the members to elect the Chairman.
(2) Any member of a Basic Democracy, whether elected or appointed, will be eligible for election as Chairman.
(3) Any Member present at the meeting may propose the name of any other member as the Chairman and if another member seconds the proposal, the person proposed shall be deemed to be a candidate for the office of the Chairman (hereinafter referred to as a candidate'):
Provided that if none of the members present proposes the name of any member as a Chairman any member may propose his own name and thereupon he will be deemed to be a candidate Provided, however, that if no proposal is seconded the member proposed shall be deemed to be a candidate.
(4) A candidate may withdraw his candidature before the Presiding Officer proceeds to declare the result or to take the poll as the case may be.
(5) If there is only one candidate, that candidate shall be declared by the Presiding Officer to have been duly elected as the Chairman. If there are more candidates than one, the issue shall be decided by taking a poll."
Sub‑rule (3) of rule 4 provides for the manner in which a member may become a candidate for election as 'Chairman. It defines who a candidate is under the Rules. A member whose name is proposed and seconded by two different members shall be deemed to be a candidate for the office of Chairman. It is only if none of the members proposes the name of any member as Chairman that any member may propose his own name and thereupon he will be deemed to be a candidate. There is a further proviso that if no proposal is seconded, the member proposed shall be deemed to be a candidate. Since the petitioner was duly proposed and seconded, respondent No. 1 did not become a candidate and could not be deemed to be a candidate, if he proposed his own name. Apart from this rule, there is no other provision under which a member who proposes himself can be deemed to be a candidate. The Presiding Officer has no authority under the Rules to make any of the members a candidate for Chairmanship, and by an act of the Presiding Officer holding a poll, no member can become a candidate. Both the learned Judges have come to the right conclusion (I say so with respect) that the respondent was not a candidate in terms of this sub‑rule.
8. Sub‑rule (3) of rule 4 of the Rules is in the nature of a definition clause, for it specifies how a member becomes candidate. This being so, it is not permissible to add to its terms and to bring within its purview persons who do not clearly fall within its ambit, for, it is not the function of the Courts to go behind the clear words of the Rules or the intention of the Rule‑making authority. The intention of the Rule‑making authority is clear that when a member is proposed and seconded, no other member becomes a candidate by proposing himself. In the circumstances of the case, it is not possible to treat the respondent, who proposed himself, as a candidate by regarding the rule as directory and not mandatory. Even if the rule is treated as directory the result cannot be that he can be treated as a candidate, for there is no sanction for it in the rules, and it would be opposed to the clear terms of the sub‑rule. To treated the respondent as a candidate and to hold a poll is also to violate sub‑rule (5) of rule 4.
9. Sub‑rule (5) of rule 4 enacts that if there is only one candidate that candidate shall be declared by the Presiding Officer to have been duly elected as the Chairman. This is a mandatory provision, which must be given effect to, and if there is only on candidate as defined in sub‑rule (3), it is incumbent on the Presiding Officer to declare him elected as Chairman. When the rule also provides that a poll shall be held if there are more than one candidate, it follows that if there is only one candidate, there can be no poll and no election contest, for there is in such a case no rival candidates seeking election as Chairman. In the result, cub‑rule (5) of rule 4 renders the poll invalid. It conferred no right or status on the respondent, and it is immaterial how many votes were secured by the petitioner and respondent No. 1 or how the lots went.
10. There remains to consider the question that if the petitioner had to be elected as Chairman under sub‑rule (5) of rule 4 of the Rules, and if he participated in the poll, which was not authorised by the rules, whether he is disentitled to the grant of relief in writ jurisdiction lay this Court on the ground that the grant of relief is discretionary. On this question there is a difference of opinion between my two learned brothers. Whereas S. A. Haq, J. was of the view that the petitioner participated in it without objection, Muhammad Afzal Cheema, J. held that if he raised no objection, it would because he was unaware of the true legal position, and that it was more probable that he did object, though his objection was not recorded by the Presiding Officer. I am inclined to agree, with respect, with my learned brother Muhammad Afzal Cheema, J.'s view. The petitioner has alleged that he did raise the objection to the holding of the poll and has supported the assertion by his affidavit. Though Fazal Karim has denied it on affidavit, the affidavit of the Presiding Officer has not been produced, and by the mere fact that there is no mention of the objection by the Presiding Officer in the memo. which he prepared of the proceedings, it cannot be held that the petitioner did not raise any objection. It is highly improbable that the petitioner should not object to the holding of a poll, when under sub‑rule (5) of rule 4 he was bound to have been declared elected. Every person is presumed to know the law. As observed by Muhammad Afzal Cheema, J., if he was unaware of the Rules and the true legal position, the rule laid down by the learned Judges of the Supreme Court in Ghulam Mohy‑ud‑Dirt v. The Chief Settlement Commissioner and others (P L D 1964 S C 829) is not attracted.
11. In view of the above finding, the petitioner is not disentitled by reason of his conduct to the grant of a relief under Article 98 of the Constitution. The three cases on which the learned counsel for the respondent relied before S. A. Haq, J., have no real application to this case. They are not cases of election, as already noticed by my learned brother, S. A. Haq, J., but he observed that they lent support to the respondent's contention. In Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner and others the petitioner was held disentitled to the grant of a relief on the following ground:‑
"The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
The above case is not attracted, because there is no question of jurisdiction involved and because it is not a case in which the illegality was committed in consequence of something done by the petitioner himself because he stood by and allowed the Tribunal to usurp a jurisdiction. That the second case Aziz‑tar‑Rahman Chowdhury v. M. Nasir‑ud‑Din and others (P L D 1965 S C 236) has no relevance, will appear from the fact that what it held was that where the issuance of a writ would disturb the peaceful and orderly function ing of a Corporation, the Court is entitled to refuse a writ on the ground that to do so would be merely vaxatious particularly where its consequence would be to place the company back in the hands of those, who were mis‑managing its affairs and illegally removing its assets to another country. In the third case Haji Ghulam Nabi v. Settlement and Rehabilitation Commissioner, Karachi and another (P L D 1962 Kar. 786) it was held that objection as to jurisdiction must be taken before the Tribunal wit‑lose orders is being challenged in writ jurisdiction and the party failing to do so, cannot be allowed to raise the same before a Court of extraordinary jurisdiction and a Court of equity will not help him. These observations may or not be open to objection, but and hardly applicable to the instant case, because it is not a case of illegal assumption of jurisdiction, but one in which the authority has acted contrary to and against the mandate in the Rules.
12. The question whether a particular provision in an enactment, though ostensibly in the imperative form is mandatory or directory, was examined in Rana Muhammad Jumil v. Punjab Road Transport Board and Zain Noorani v. Secretary of National Assembly (P L D 1957 S C 46). In the first case it was observed that the question whether a particular provision in a statute, though ostensibly in imperative form, is really mandatory or directory, is a question of some nicety and no hard and fast rules can be laid down for its construction with any exactitude in all cases. In each case, the scope and object of the Act and of the particular provision would be relevant to the real intention of the Legislature in this respect. Generally speaking, when the provision charges some public authority with a duty and no express or clearly implied indication is given by the Legislature that the failure to conform to the letter of the law, would entail the drastic consequences of invalidation and further such invalidation would result in unmerited injustice or serious general inconvenience to members of the public or other persons to be specially affected, the public or those persons having no effective control over the actions of the authority concerned, the provision is construed as carrying a directory rather than a mandatory connotation. It will be noticed that these observations are not appropriate to the facts of this case, nor are helpful in interpreting sub‑rules (3) and (5) of rule 4. The learned Judges of the Supreme Court in the second case held Article 141 of the 1956 abrogated Constitution of Pakistan laying down a time limit for filing a casual vacancy in the National or the Provincial Assembly as directory, the object of the time limit being to secure a prompt holding of by‑elections. In coming to this conclusion, their Lordships relied on a passage appearing in Maxwell's Interpretation of Statutes that:‑--
"On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officer and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time."
The underlying principle, i.e., the ratio decidendi of these two cases is that where a public authority is entrusted with a duty and no express or implied indication is given by the Legislature that the failure to conform to the letter of law would entail the consequences of invalidation, which would result in grave and undeserved injustice or serious general inconvenience to members of the public or other persons, who have no effective control over the actions of the public functionaries or authorities than the provision should be regarded as directory, so as not to invalidate the act done by a public functionary in disregard of the provision. This principle is not applicable to sub‑rules (3) and (5) of rule 4. As indicated already, sub‑rule (3) is in the nature of a definition clause and defines with abundant clarity in what circumstances a member becomes a candidate for election of Chairman. There is no other means of any member becoming a Chairman. The intention of the Rules is clear that there can be a poll only if there is more than one candidate, i.e., if more than one person has been proposed and seconded. If there is only one candidate, he must be declared elected. The intention, therefore, clearly is that the Presiding Officer cannot set up any member as a candidate by his act or by his holding a poll. There is also no question of any general inconvenience or unmerited injustice likely to be caused so that the poll should not be set aside. I agree, with respect, with the view of Muhammad Afzal Cheema, J. that it is in accordance with the intention of the Rule‑making authority as well as just and proper that the only person who should have been declared elected under sub‑rule (5), should not be denied and deprived of the office, which the Rules conferred on him.
13. The petitioner moved an election petition, which lies under rule 7 of the Rules. Its sub‑rule (2) provides that the Controlling Authority may after such inquiry as may be necessary, uphold the election of the Chairman or declare the election as void for any material irregularity or any sufficient reason to be recorded. As held in Muhammad Husain and others v. Pir Salah ud‑Din, Election Tribunal (Additional Deputy Commissioner Lahore) anal others (P L D 1960 Lah. 1130) the expression "material irregularity in these Rules is not the same thing as an irregularity pure and simple, but means an irregularity, which has affected the result of the election and not an irregularity, which though it may have been a breach of the rules, had not affected the result of the election one way or the other. As also observed therein, the term "sufficient reason" mentioned in the sub rule has not been defined, but it is hardly open to question that no reason would be deemed to be sufficient, unless it is such as would be accepted by a reasonable person to be of such importance or such weight as to justify the declaration that the election was void. The same defini tions were approved in Mehar Allah Yar v. Syed Hassan Jahanian Shah Gardezi and others (P L D 1961 Lah. 247). When an election petition is instituted before the Controlling Authority, it has to consider whether there has been committed any material irregularity or there is any sufficient reason, for which the election should be avoided. It is not open to question that irregularities, which are not material, cannot be treated as sufficient reason for avoiding an election, as was held in Muhammad Nawaz Khan v. Ghulam Farid and others (P L D 1963 S C 623). As explained in Mehar Allah Yar v. Syed Hassan Jahanian Shah Gardezi the two phrases have not been used synony mously. The learned Judges of the Supreme Court also observed in the above‑cited case that irregularities having been separately dealt with, should be deemed to have been excluded from sufficient reason.
14. In the instant case, the Controlling Authority bad to decide whether there was a material irregularity committed by the Presiding Officer in declaring the respondent elected as Chairman. As has been shown, the Presiding Officer committed an irregularity in accepting the respondent as a candidate and in holding a poll. Both the learned Judges are agreed on this question. S. A. Haq, J. held, however, that the irregularity was not material for the reasons that there was no inherent disqualification attaching to the respondent to prevent him from offering himself as a candidate for election to the office of Chairman, that all the members present cast their votes and thus freely expressed their choice from amongst the contesting candidates, and as a result the respondent obtained the requisite majority of votes, that the petitioner voluntarily participated in the election, and that it was not alleged that any person not qualified to vote took part in the election. The learned Judge, concluded that the defect attaching to the candidature of the respondent being a defect of technical nature could not be regarded as a material irregularity, touching the result of the election. I would, with respect, point out that there were under the rules, no contesting candidates and there could be no contest, because the respondent did not become a candidate not having been proposed or seconded, as required by sub‑rule (3) of rule 4. In the poll, which could not be held under the rules, he did not get a majority, but it was by reason of a lot drawn that he was declared elected. Since the poll was held in violation of sub rule (5), the result of the poll is in fact immaterial. I am unable to persuade myself that the respondent can be treated as a candidate at all. That being the position, the defect is not merel3 technical, but of a basic and substantial nature, for it is a basic principle of election law that a person who is not a candidate in law cannot be elected. The rule in Muhammad Nawaz Khan v. Ghulam Farid and others is not really applicable to this case, for in that case the decision was based on Article 39(4) of the Basic Democracies Order, which S. A. Haq, J. also held, was not attracted to this case. It was also held that the irregularity was not material, but the reason for this conclusion was that it was not known in whose favour the person not qualified to vote had voted, but in the present case, there can be no doubt that the irregularity was material, which has affected the result, because under sub‑rule (5) of rule 4, instead of the petitioner having been declared elected, as should have been the case, the respondent has been declared elected. I, therefore, agree with respect, with the, view expressed by Muhammad Afzal Cheema, J. that a material , irregularity has been committed by the Presiding Officer in not declaring the petitioner elected as Chairman.
15. The conclusion of the Controlling Authority that the respondent could propose his name under sub‑rule (3) of rule 4 and he thus became a candidate, has no support in law. On this question there is no difference of opinion between the two learned Judges, and 1 agree with respect with their conclusions that the respondent cannot be deemed to be a candidate. There could, therefore, be no poll and the respondent could not be declared elected as Chairman.
16. For the reasons stated above, I would agree with Muhammad Afzal Cheema, J. that this petition be accepted, that the order of the Controlling Authority be set aside, as being without lawful authority, and that the Controlling Authority be directed to redecide the petition in accordance with the rules. The petitioner will have his costs from respondent No. 1, who alone has contested this petition.
K.M.A. Petition accepted.
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