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Writ Petition No. 46 of 1955, decided on 26th April 1956, under section 223-A, Government of India Act, 1935.
---- Election may be adjourned for a reasonably short time.
Rule 37, District Board Election Rules, 1952 (Punjab) should not be given a narrow interpretation. There is no warrant for the view that the election must be closed the same day after making allowance for the interruption ; the election may be adjourned within a reasonably short time. No time limit can be placed on rule 37.
R. 3 (4) and Rule 69-Government cannot invalidate previous proceedings in an election under R. 3 (4) in view of proviso to that rule-- Rule 69 contemplates a completed election-No inquiry can be ordered under R. 69 into an election which is incomplete-An incomplete election may be completed under Rule 3 (4) by modifying election programme.
Ballot papers at a certain polling station in a District Board Election were exhausted at five minutes past two. The closing time was 3 o'clock and the papers came shortly before four, but as one of the candidates "threatened" disorder, the presiding officer did not extend time under rule 37, and there was neither any further polling nor counting of ballot papers or declaration of results. Govern ment ordered an inquiry under rule 69 and, as a result of the inquiry, invalidated the previous proceedings in election, under the proviso to sub-rule (4) of rule 3, directing at the same time fresh elections. Sometime after, Government rescinded the order for a fresh election and directed that the election may be continued from the point where the ballot papers were exhausted.
Held, that the order of Government invalidating previous proceedings was not warranted by the proviso to rule 3 (4), under which it purported to have been made. The election programme having been disturbed at 2 p.m. the date of polling could be altered under sub-rule (4) in respect of what remained of the polling and so the final order of the Govern ment was not contrary to rules.
Further, that rule 69 contemplates a completed election therefore, inquiry into what was, an incomplete election could not be ordered under rule 69.
Ghulam Muhammad Butt v. West Pakistan Province P L D 1956 (W. P.) Lah. 572 ref.
Also that the previous order of the Government, being unlawful, could be ignored.
Mahmud Ali for Petitioner.
A. R. Changez, Advocate-General, for Respondent 1.
Malik Shaukat Ali for Respondent 2.
Dates of hearing: 18th, 19th and 20th April 1956.
In this case, the elections to the District Board in Circle No. 9 of Sheikhupura to the District were in their fifth and final day, when, at five minutes past two, the ballot papers in one of the polling stations, Keelay, were exhausted. The closing time was three o'clock and the papers came shortly before four, but as one of the candidates, namely, Bahawal Sher respondent, "threatened" disorder, the presiding officer did not extend time under rule 37, and there was neither any further polling nor counting of ballot papers or declaration of results.
This unusual thing happened on the 29th January 1955. There was an inquiry under rule 69-as though any sort of inquiry could be conducted under rule 69 because it mentions the word inquiry"-but there was no inquiry into the extraordinary absence of foresight in a case where the total number of voters must have been known to the presiding officer from the printed list. However there was an inquiry, and the Government thereupon invalidated the previous proceeding under the proviso to sub-rule (4) of rule 3-a very attractive proviso, I should say, because if the previous polling did not suit your candidate, you could just efface it. And God said let there be no light, and lo, there was darkness."
Fresh elections were announced to be held from the 12th to the 16th March 1955, but these were stayed by a writ petition, which Bahawal Sher instituted. Next the writ jurisdiction having been suspended as a result of Maulvi Tameezuddin's case,( PLD 1955 FC 240) the Government again fixed certain dates in June 1955 for the election to be held but postponed it in deference to the Constituent Assembly elections, which, it is alleged, necessitated some bargaining These little drops of water in the District Board make the mighty ocean of West Pakistan. Finally, on the 16th December 1955, the Government decided, in consultation with section 19 of the General Clauses Act. to rescind the previous order and to continue the election only from the point where the ballot papers were exhausted. It is against this order that the present writ petition seeks a remedy. This time the petitioner is the rival candidate, Sai Muhammad.
More or less identical things happened in circle No. 16, and the second petition deals with that case.
The following provisions of the District Board Election Rules, 1952, give a fairly good idea of how elections are conducted :-
3. Election programme.- (1) The Election Officer, Local Bodies, shall, with the sanction of the Provincial Government, frame a programme for elections to a Board, hereinafter referred to as the election programme.
(2) The Election programme shall specify the date or dates, on, by, or within which-_
(a) the electoral roll shall be prepared ;
(b) the electoral roll shall be published ;
(c) the notice inviting claims and objections shall be published ;
(d) the claims and objections shall be presented ;
(e) the list of claims and objections shall be posted ;
(f) the claims and objections shall be heard ;
(g) the list of claims and objections and the orders of the Revising Authority thereon shall be forwarded to the Election Officer, Local Bodies ;
(h) application for the revision of the order of Revising Authority may be submitted to the Deputy Commissioner;
(i) the electoral roll as finally corrected shall be repub lished ;
(j) the notice inviting nomination papers shall be published ;
(k) the nomination papers shall be presented ;
(l) the list of nomination papers shall be posted ;
(m) the nomination papers shall be scrutinized ;
(n) a candidate may withdraw his candidature ;
(o) the list of valid nomination shall be posted ;
(p) application for the revision of the orders of the Authority scrutinising the nomination papers may be made to the Deputy Commissioner ;
(q) the revision application shall be decided ;
(r) the list of polling stations shall be posted ;
(s) the poll shall be held ;
(t) the ballot papers shall be counted ;
(u) the result of the election shall be declared.
(3) The election programme shall be published by copies being posted at the office of the Deputy Commissioner, the Election Officer, Local Bodies, at the office of the Board, at the headquarters of every tahsil in the district and at such other places as the Election Officer, Local Bodies, may direct.
(4) The Provincial Government or Election Officer, Local Bodies, with the sanction of Government, may, by an order amend, vary, or modify the election programme at any time:
Provided that unless the Provincial Government other wise directs, no such order shall be deemed to invalidate any proceedings taken before the date of the order."
"13. Final publication of electoral roll.--(1) A revising authority, as soon as he has disposed of all claims and objections presented to him and in any case not later than the prescribed date by which claims and objections must be presented, shall forward a list of such claims and objections and of his orders accepting or rejecting them to the Election Officer, Local Bodies, who shall cause the roll to be corrected accordingly and shall then either reprint and republish the roll so corrected, or if he deems fit, shall republish the preliminary roll published under the provisions of sub rule (1) of rule 8, together with a list of additions and corrections, provided that in any case copies duly corrected shall be made available for sale as soon as may be after republication has been made.
(2) Any roll republished under the provisions of sub rule (1) with or without a list of additions and corrections, as the case may be, shall come into force from the date of such republication and shall continue in force until a fresh roll is prepared and republished under the provisions of sub-rule (1) for the purposes of the next general election of members, provided that the Provincial Government may by notification direct the preparation in accordance with these rules of a fresh roll at any time.
(3) The electoral rolls shall be preserved until they cease to be in force under sub-rule (2) and may be destroyed when the fresh rolls have been finally republished and have come into force."
"21. Scrutiny of nominations and decision of objections. (1) On the date prescribed for the scrutiny of nominations after facilities have been given for the examination of nomination papers under the provisions of rule 20, the Election Officer, Local Bodies, or any gazetted officer appointed by the Provincial Government in this behalf, shall examine the nomination papers of all candidates whose names are included in the list of candidates posted under the provisions of rule 19, and shall decide all objections made to any nomination and shall, either on such objection or on his own motion after such summary enquiry, as he may deem necessary, refuse any nomination if he is satisfied-
(Then follow the reasons for which nomination may be refused.)
(3) Any person aggrieved by any order passed by the Election Officer : . . . . . may present to the Deputy Commissioner an application for revision of such order.
(4) The Deputy Commissioner . . . . . may . . . . . . confirm such order or may set it aside."
-The presiding officer shall on each day on which polling is to take place close the polling station at the hour appointed under the provisions of sub-rule (1) of rule 26 and no ballot papers shall be issued to any elector after such hour, but any elector who has already received a ballot paper shall be allowed a reasonable time within which to record his vote, provided that if for any reason it was not possible to open the polling station at the hour appointed under the provisions of sub-rule (1) of rule 26, or if by reason of disorder at the polling station, or for any other reason the presiding officer deems it necessary to stop the polling for a certain time, the presiding officer shall keep the polling station open for a further period equal to the period that elapsed between the hour appointed for the opening of the polling station and the hour at which it was actually opened or the time during which polling was stopped, as the case may be."
40. (1) Counting of ballot papers by the Election Officer.
"(3) A ballot paper shall be rejected if it does not bear the official mark or if it bears any mark by which the voter can be identified. The decision of the Election Officer, Local Bodies, as to the validity of a ballot paper shall be final subject only to reversal on an election petition."
"50 (e) 'Material irregularity' in the procedure of an election includes any such improper acceptance or refusal of any nomination or improper reception or refusal of a vote or reception of any vote which is void or non-compliance with the provisions of the Act or of the rules made there under, or mistake in the use of any form annexed thereto as materially affects the result of an election."
Rule 52 and onwards. Procedure relating to election petitions.
-- The Punjab Government may of its own motion direct an enquiry to be held into the conduct of an election if there is reason to suspect that a corrupt practice or material irregularity has been committed and the case shall be dealt with so far as may be in the manner prescribed in these rules."
Now. Mr. Mahmood Ali, for the petitioner, says that although the Government had power, under the proviso to subrule (4) of rule 3, to set aside the election and whatever had preceded it, there was no power to keep intact whatever had preceded and continue the election from the point at which it had been closed. The principal argument advanced towards that end was that the object of an election was to ascertain the opinion of the electorate at a particular time, and that object is defeated if most of the opinion is obtained in January 1955 and some in the following December. It would be defeated even if the election is postponed by one day. Thus although the presiding officer may, under rule 37, keep the polling station open for extra time if it had been closed for an unforeseen reason, it is not the intention of the rule that even he should adjourn the polling to the following day.
Mr. Changez, for the Provincial Government, claimed power for the Government, under the proviso aforesaid, t invalidate the previous proceeding or to continue it; and having invalidated it, the Government could rescind the previous decision under section 19 of the General Clauses Act.
A decision of the Federal Court that Government had power to rescind its order irrespective of the, General Clauses Act was also cited. Shahbaz v. Crown (P L D1956 FC 46).
Malik Shaukat Ali, for the respondent, denied that there was any power to quash the previous polling. At the stage and of exhaustion of the ballot papers, the Government could have altered the polling programme so far as the remaining hour went, but since this was not done on the very day of Ka: polling, no order could be passed so as to alter what had gone before. The election was over and the next step was to count the votes and declare the result. If any party felt aggrieved, he could file an election petition on the ground of a "material irregularity" having been committed in the conduct of the election.
But if, said Malik Shaukat Ali, the election was not closed, then the Government could alter only whatever was left of the election programme and the previous order directing fresh elections being invalid, there was no question of rescinding any illegal order. In other words, the order of 16th December directing partial elections was correct.
The general merit of Mr. Mahmud All's argument that you cannot split an election so as to have one part of it in January and another part in the following Decembers unquestionable. In England, that is the rule of law, but if ultimately we do not find that to be the rule in Pakistan, all we can do is to recognize the merit of the one but to follow the other. We do not agree with the very narrow interpreta tion which Mr. Mahmud Ali places on rule 37. If for any reason the presiding officer was compelled to stop the polling for a certain time, this rule requires him to keep it open "for a further period equal to the period * * * * during which the polling was stopped:' It is true that normally this will happen the same day, but suppose the polling had been stopped because of a disorder, and normal conditions could not be restored until sunset. Would not, then, the mandatory requirement of rule 37 be disregarded if the presiding officer did not adjourn the polling to the following morning We do not say that any time limit can be placed on rule 37, but if the adjournment is within a reasonably short time, the purpose of the rule would be fulfilled.
But we cite rule 37 merely to illustrate a weakness in the argument that the continuity of an election cannot be allowed to be broken even by a short space of time. Reverting to rule 3, we think there is great force in the argument of Mr. Shaukat Ali that the sole object of the rule is to arrange the election programme, just as one arranges a tour programme, and that neither the one nor the other can be altered retrospectively. If any contingency arises which makes it inconvenient fox the parties or the Government to observe the election programme-an epidemic, a flood or the earlier advent of the month of Ramazan, for instance the dates may be altered, but no decision that has been taken in respect of claims or objections or nomination papers may be altered by setting aside the electoral roll, for instance, or any other proceeding of like character. It will be noticed that clauses (a) to (i) of subrule (2) deal' with the electoral roll, clauses (j) to (q) with the nomination papers, and the remaining clauses with polling, counting and declaration of the result. So far as the electoral roll goes, it continues in force till the next election, as provided by rule 13 (2), and obviously cannot be "invalidated" by the Government under the proviso to rule 3 (4). If the Government have any doubts in respect thereof, it has an independent power under rule 13 (2) of directing the preparation of a fresh roll at any time. So far as the nomination papers go, rule 21 (1) gives power to the Election Officer to refuse them for certain reasons and sub rule (3) gives power to the Deputy Commissioner to revise the decision. The order in revision is not final, because it can be set aside in an election petition as a "material irregularity" if it has resulted in the improper rejection of the nomination paper. This is inherent in the definition of "material irregularity". (Rule 50, clause (e)). This exhausts clauses (a) to (q) of the "Election Programme." What is left of it-polling, counting, and declaring-is a matter for the election petition.
We cannot, therefore, think it possible that although distinct procedure was prescribed for invalidating all matters to which the election programme relates, there was left a power in the Government to invalidate everything without resort to the prescribed rules. Whatever those previous proceedings are that can be invalidated under the proviso, they are certainly not the orders deciding claims and objections in relation to the preparation of the electoral roll, or the orders accepting or refusing nomination papers; far less can they be identified with polling, which is the very end to which other formalities are addressed. For if the Government could set aside an entire election before the votes were counted, there would be no sense in providing an elaborate procedure for an election petition. In fact, Government has reserved for itself under rule 69 the power of holding an inquiry into the conduct of an election and of declaring the election void. The proviso to rule 3 (4), however, would seem to give them power without an inquiry. This is not conceivable.
Consequently, the order of Government dated the 18th of February, 1955, invalidating previous proceedings was not warranted by the proviso to rule 3 (4), under which it purports to have been made. The election programme having been dis turbed at 2 p. m. on the 29th of January 1955, the date of polling could be altered under subrule (4) in respect of what remained of the polling. What the presiding officer could do immedi ately under rule 37, the Government can do after an interval. We do not say that the interval can be six months or a year. Normally, it will not be long, but if circumstances come into being-a stay order, for instance which make immediate polling impossible, we will not say, without being referred to any rule, that just because the integrity of the election is broken, there should be a fresh election. And there is no rule to which we can refer for a fresh election except perhaps rule 69.
It will be recalled that although the Government passed the order of invalidation under rule 3 (4), it directed an inquiry under rule 69. Both Mr. Mahmud Ali and Mr. Changez contended that such inquiry was competent. An inquiry under rule 69 is held "into the conduct of an election if there is reason to suspect that a corrupt practice or material irregularity has been committed," and the inquiry is then conducted as though it were an election petition. In fact, rule 69-A says that the officer appointed to hold the inquiry is called a "commission" within the meaning of rule 57. Now ' election" has been defined in rule 50 (c) as "the election of a member, chairman or vice-chairman of a Board", so that it is clear that rule 69 contemplates a completed election. Even without a definition, you cannot think of an election without somebody being elected. Further, the very fact that the procedure to be adopted will be that of an election petition and the inquiry officer will be called a commission, shows that rule 69 reserves certain powers to the Government for holding an inquiry, analogous to an inquiry into an election petition, in circumstances which are the con cern of the Government itself. Some indications of its scope has been given by one of us recently in Ghulam Muhammad Butt v. West Pakistan Province (P L D 1956 (W. P.) Lah. 572). But irrespective of the fact that this is not a case which falls under rule 69-it may have been, if the result had been declared-the inquiry was not conducted as an election petition. The inquiry officer was asked to report within three days, and he reported that he had gleaned information from records at headquarters 'without waiting for summoning the parties and the officials concerned or asking for the papers from the office of the local bodies". He found that the presiding officer had shown 'nervousness" and the Inspector of Local Bodies had made a "fool" of himself, and he thought "the irregularities com mitted are material and warrant fresh elections". The word ''material" was used out of loyalty to the language of rule 69, which requires the commission of a "material irregularity to justify an inquiry. Now if the definition of "material irregularity" in rule 50 (c) is exhaustive, then the case does not fall within that definition and rule 69 is not attracted. But if it is not exhaustive-and we think, in view of the word "including", that it is not exhaustive-then any irregularity to be material, must affect the result of the election materially, because that part of the definition is undoubtedly an essential part. Now if the result has not been declared at all, how can it be held that it has been affected materially The report merely says that the irregularities committed are material, not that the result has been affected. We have no doubt that this is not an inquiry under rule 69.
We, therefore, think that the final order of the Govern ment is not contrary to the rules. The previous order being unlawful, could be ignored. The petitions are dismissed, but in view of the fact that the Government, by its varying orders, has encouraged suspicion, the parties should be left to bear their own costs.
A. H. Petitions dismissed
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