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Writ Petition No. 1688 of 1980, decided on 10th March, 1980.

__Art. 10(2)(8) and Punjab Local Council Ordinance (VI of 1979), S. 21(f)-Disqualification-Elected candidate a depot-holder-Held, disqualified from elation on that account.

Amanullah and another v. Election Tribunal Gujranwala and another P I, D 1961 Lah. 907 ; Scrdar Muhammad Jaffar Khan Laghari v. The Election Commission of Pakistan, Federal Government Secretariat, Islamabad and 3 others P L D 1978 Lab. 76 ; Muhammad Ashraf v. Muhammad Ajaib and 2 others W. P. No. 1137 of 1980 ; Riaz Hussain v. Fazal Muhammad etc. 1980 C L C 839 and Urnar Draz Cheema v. Nazar Muhammad and others 1980 S C M R 156 ref.

----R. 15-Declaration d' election as void-Neither any elector nor rival candidates at stage of nominations raising any objection on account of respondent being a depot-holder--Returning Officer duly accepting nomination-Objection taken much after declaration of results of elections-Material to infer that disabling fact was notorious held not sufficient- -Question whether electors can be attributed knowledge of disqualifying tact. itself one of fact---Such question can hardly by examined by :3igh Court in Constitutional jurisdiction-Order for holding of fresh election held, proper in circumstances of case. Constitution of Pakistan (1073), Art. 199.-[Question of fact].

Sanaaullah v. Election Tribunal, Gujrat and others Pld 1966 Lah. 97 ; Amanullah and another V. Election Tribunal Gujrat and other PLD 1961 Lah. 907; Reshid Ahmad Rahmani v. Mirza Barkat Ali and 2 others PLD 1968 SC 301; Raja Muhammad Afzal Khan v. Ch. Manzoor Elahi and 6 others PLD 1975 Lah. 1276; Umar Draz Cheema v. Nazar Muhammad and others 1980 SCMR 156 and Muhammad Ashraf v. Muhammad Ajaib etc. PLD 1980 Lah. 311 ref.

----R. 15--Declaration of election as void--Contention that in absence of a specific prayer for declaring election as a whole to be void by Tribunal, such declaration was not proper, held, had no force-Tribunal once coming to finding that election of one candidate was void, had to decide even in absence of a specific prayer whether declaration to be confined only to election of candidate found disqualified or to cover election as a whole.

Sanaullah v. Election Tribunal, Gujrat and others P L D 1966 lath. 97 ; Amanullah and another v. Election Tribunal, Gujrat and others P L D 1961 Lab. 907 and Rashid Ahmad Rahmani v. Mirza Barkat Ali and 2 others P L D 1968 S C 301 rel.

Syed Sajjad Raza Jaffary for Petitioner.

Date of hearing : 20th February, 1980.

Three persons were declared elected in the last elections held under the Punjab Local Government Ordinance, 1979, from the multiple member electoral unit, i. e. Baragawa and Seri Ghanial of Union Council Janjial, Tehsil Jhelum. They are Muhammad Walayat, respondent No. 3, Sakhi Muhammad petitioner and Sarwar Khan, respondent No. 6. Amir Muhammad Khan (respondent No. 2) moved an election petition before the Tribunal challenging the election of Muhammad Walayat on the ground that he suffered from a disqualification for contesting the elections on account of his being a ration depot-holder at Baragawa. The other elected persons were also made parties before the Tribunal. Since it was conceded before the Tribunal that Muhammad Walayat was a depot-bolder and as such suffered from a disqualification, the Tribunal felt that the only question which required consideration was whether the election as a whole or only the election as regards Muhammad Walayat was to be declared void. The Tribunal relying on Amanullah and another v. Election Tribunal, Gujranwala and another (P L D 1961 Lah. 907), declared, by its impugned order dated 28-1-1980, the entire election to be void.

2. Learned counsel for the petitioner did not question the fact that Muhammad Walayat was a depot-holder but contended that the same did not amount to a disqualification for the purposes of the local council elections. He, therefore, urged that the concession of Muhammad Walayat on this point made before the Tribunal would not change the legal position. According to him, being a ration depot-holder, did not fall under the disqualification prescribed under section 21(h) of the Punjab Local Government Ordinance, 1979. This clause (h) reads :

"if he is under contract for work to be done or goods to be supplied to the local council concerned or has otherwise any pecuniary interest in its affairs."

3. The disqualification of Muhammad Walayat is not by virtue of clause (h) but of clause (f) of the same section 21 of the Ordinance. It reads

"if be for the time being is disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force."

This brings us to the disqualifications prescribed under Article 10 of the Houses of Parliament and Provincial Assemblies (Elections), President's (Post Proclamation) Order 5 of 1977. The relevant portion of which reads

10(2) "A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament,-

(8) "if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account has any share or interest in a contract : .. .. for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government."

The question, therefore, arises whether a person in whose favour an authorisation has been issued for running a ration depot comes within the mischief of the above disqualification. This question stands decided by a Full Bench of this Court in Sardar Muhammad Jafar Khan Laghari v. The Election Commission of Pakistan, Federal Government Secretariat, Islamabad and 3 others (P L D 1978 Lah. 76). The learned Judges repelled the contention that the authorisation was in the nature of a mere licence and. not a contract and held that :---

"the distribution of food grains is a service undertaken by the Govern ment. And in view of the fact that a depot-holder has no choice either in the matter of fixing the prices or choosing the customers or prescribing any. limit for the quantity to be sold to any particular consumer, he cannot be said to be a mere licensee in the general sense of the word. He has to carry out the distribution exactly in accordance with the terms laid down by the Government and the consideration that he receives for this service is the difference of purchase and sale prices both of which are predetermined by the Government. We, therefore, hold that a depot-holder has a share and interest in a contract for the performance of a service undertaken by the Government' ." .

The question had again come up before a learned Single Bench of this Court in Muhammad Ashraf v. Muhammad Ajaib and 2 others W. P. No. 1637 of 1980 (P L D 1980 Lah. 311) and in Riaz Hussain v. Fazal Muhammad etc. (1980 C L C 839), where it had been held that holding of a ration depot amounted to a disqualification under Article 10(2)(8) of President's (Post Proclamation) Order 5 of 1977 and consequently under clause (J ) -if section 21 of the Ordinance.

3. The view taken by this High Court that the disqualification under Article 10(2)(8) of the President's (Post Proclamation) Order of 1977 constituted also a disqualification under section 21 (f) of the Ordinance was agitated before the Supreme Court in Umar Draz Cheema v. Nazar Muhammad and others (1980 S C M R 156) but the Supreme Court confirmed the view observing that section 21 (f ) of the Ordinance ]

"tends to bring the candidates for the local councils on the same footing as the candidates for the membership of the Parliament or the Provincial Assemblies by subjecting them to the same disqualifications in addition to those enumerated in section 21."

It is, therefore, clear that Muhammad Walayat was a person disqualified to contest the elections by virtue of section 21 (f ) of the Punjab Local Government Ordinance, 1979.

5. Learned counsel then questioned the decision of the Tribunal to have declared the election as a whole to be void instead of restricting that declaration to the seat of Muhammad Walayat. He urged in this connection firstly that the Tribunal could not nullify the entire election in the absence of a specific finding as to the existence of one of the grounds contemplated under rule 15 of the Punjab Local Councils (Elections Petitions) Rules, 1979, Secondly, the Tribunal had also no jurisdiction to record such a declaration in the absence of any prayer for declaring the election as a whole to be void as required by rule 5(2)(c). Thirdly, he argued that the disability attaching to Muhammad Walayat on account of his holding a ration depot being well known to the electors, they would be deemed to have had notice of the same and as such to have thrown away their votes which had been cast in favour of Muhammad Walayat and consequently not entitled to exercise the franchise once again.

6. Rule 15 empowers the Tribunal to declare an election as a whole to be void "if it is satisfied that the result of the election has been materially affected by reason of

(a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules ; or

(b) the prevalence of extensive corrupt or illegal practice at the election.

The attaching of a disqualification which should have barred a candidate from seeking the election can be a ground for declaring the election as a whole to be void unless the disability was so notorious as to give rise to an inference that the electors in spite of their knowledge had wasted their votes in favour of the disqualified candidate. See Halsbury's Laws of England, 4th Edition, Vol. 15, para. 930. In Sanaullah v. Election Tribunal, Gujrat and others (P L D 1966 Lah. 97), where the candidate's age had been entered in the electoral roll as 28 years but he had in fact been less than 25, it was held :-

"It cannot be said as to how the 225 voters, who voted for the petitioner, would have cast their votes in the event of the petitioner not being in the field. It is purely a matter of speculation to say that the majority of these votes would have gone to the respondent Bahawal Bux. It is thus clear that this is not a case where only the election of the returned candidate was materially affected by reason of the disqualification attaching to him on account of his being less than 25 years f age on the date of the nomination ; on the contrary, it is a case where the result of the election as a whole has been materially affected and it cannot be said at all as to which of the candidates would have polled the largest number of votes, if the petitioner's nomination paper had not been illegally accepted.

In this view of the matter the Division Bench had declared the election as a whole to be void. In an earlier case reported as Amanullah and another v. Election Tribunal, Gujrat and others which was relied upon by the Tribunal and where one of the candidates in a multiple member electoral unit had not been registered as an elector in the relevant electoral roll, the Division Bench had observed : .

"We agree that it being a multiple constituency -it would have been better if the Election Tribunal had declared the election as a whole to be void."

The view taken in this case had been approved by the Supreme Court in Rashid Ahmad Rahmani v. Mirza Barkat Ali and others (P L D 1968 S C 301). In this cited case where the name of the candidate successful at the election had been entered in the final electoral roll in violation of the relevant rules, the Supreme Court held that the voters could have had no notice of the fact of that inclusion and hence they could not be disenfranchised for no fault on their part and that the votes given by them without notice of the above disqualification ought to be treated as good votes and consequently the election as a whole should be declared to be void.

7. The principle underlying the decision to declare the election as a whole to be void instead of declaring the specific election of the candidate suffering from a disqualification, had come up for discussion in yet another case, i. e. Raja Muhammad Afzal Khan v. Ch. Manzoor Elahi and 6 others (P L D 1975 Uah. 1276) and it had been observed :-

"I may, therefore, conclude that voters casting their votes for a candidate who is disqualified under the law. the disqualification being founded on some positive and definite fact existing and established at the time of the poll the same being sufficiently notorious as to saddle the electors with knowledge thereof are deemed to throw away their votes and to mean not to vote for any one for that office as well as to assent to the election of the opposing and qualified candidate. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences, then even though the candidate may be unseated the seat cannot be given to the candidate with the next highest number of votes and the election has to be declared void as a whole. Whether the disqualification was notorious that is to say was so widely known that the electors can be said to be aware of it is a question of fact and must be proved as such."

8. In the matter in hand can we say that the disqualification attaching to Muhammad Walayat was so notorious as to safely give rise to an inference that the voters had had notice of the same and yet had deliberately throw away their votes cast in his favour. It is significant to note that neither. any of the electors nor the rival candidates and at the stage of nominations raised any objection on account of Muhammad Walayat being a depot-holder. The Returning Officer had duly accepted the nomination. The objection had been taken much after the results of the elections had been declared. There is, therefore, no sufficient material from which it can safely be inferred that the disabling fact was notorious. In any case; the question whether the electors can be attributed the knowledge of the disqualifying fact, is itself one of fact and can hardly be examined by this Court in its constitutional jurisdiction.

9. But even if, for the sake of arguments, we were to accept the contention that holding of a ration depot is a fact which can be presumed to be within the knowledge of all concerned in a rural area, can we infer that such knowledge was sufficient to saddle the electors with the awareness of its legal consequence. It is true that according to Halsbury it is not necessary to show that the elector was aware of the legal result of the fact constituting the disqualification but any strict application of that rule would be harsh and un-reasonale in the conditions obtaining in our country where elections have not been held with any regularity so as to assume that the average elector ought to have the knowledge of such legal result. We must, therefore, keep in mind the inadequate level of awareness of the ordinary elector in applying the rule. In Syed Saeed Hassan v. Pyar Ali and 7 others (PLD1976SC6) where the electors had voted in favour of a party against which allegations of corrupt and illegal practice had been brought, the Supreme Court had observed :-

"Even otherwise, having regard to the level of legal knowledge and awareness of the average voter of this country, it cannot be disputed that the disqualification was not so apparent and notorious as to justify the inference of wilful perverseness on the part of the electors who voted for the appellant to cast away their votes. The disqua lification was certainly based on "complicated facts and legal arguments" and as such did not justify the disenfranchisement of about 10,000 voters."

In this cited case the Supreme Court had set aside the decision to have the next best candidate elected and had directed the holding of a fresh election.

10. We must also bear in mind that even the legal consequence of holding a ration depot had not been free from controversy in the country notwithstanding the Full Bench decision in the aforecited case of Sardar Muhammad Jaffar Khan Laghari. On the promulgation of the Punjab Local Government Ordinance, 1979, a question had arisen for determination in courts whether, the disqualification would amount to one under the Ordinance and, the controversy has been only recently set at rest by the Supreme Court in Umar Draz Cheema v. Nazar Muhammad and others. I may also refer to the judgment in the aforecited case of Muhammad Ashraf v. Muhammad Aiaib, etc. W. P. 1637 of 1980, wherein a learned Single Judge of this Court has held that even if the fact of the candidate being a depot -holder was well known yet the doctrine of "thrown away votes" cannot in any manner be attracted and that it cannot be said that the disqualification attaching to depot-holders was a matter of notoriety.

11. I see no force in the other contention that in the absence of specific prayer for declaring the election as a whole to be void the Tribun could not have recorded such declaration. For, once the Tribunal came t the finding that the election .of one of the candidates was void, it had decide even in the absence of a specific prayer whether the declaration was to be confined only to the election of the candidate found disqualified o was to cover the election as a whole. This view is supported by the case of Sanaullah and Rashid Ahmad. In Sanuullah's case the High Court had taken exception to the decision of the Tribunal to have declared the next best candidate to have been duly elected, and had substituted a declara tion that the election as a whole was void. In Rashid Ahmad's case, too, where the Tribunal had declared the next best candidate to have been duly elected, the Supreme Court had modified the declaration and directed the holding of a fresh election, although no such prayer had been made in the petition before the Tribunal.

12. I, therefore, see no reason to interfere with the Tribunal's order. The writ petition is dismissed in limine.

M. A. K. Petition dismissed.

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