Find a Lawyer

Civil Appal No. K‑5/1980, decided on 27th January, 1981.

(Appeal against the judgment and order, dated 11‑12‑1979 of the Sind High Court in Constitutional Petition No. 1810 of 1979).

‑‑‑Art. 185(3)‑‑Sind Local Government Ordinance (XII of 1979), S.s7(2)(d)‑‑Disqualification from contesting election‑‑Leave to appeal granted to consider whether disqualification of petitioner was such as to render all votes cast in his favour wasted and thrown away with the result that candidate with next highest number of votes could be declared successful and secondly as to whether or not respondent as well as his proposer and seconder were registered as voters in constituency in question and if so, effect thereof.

‑‑‑S. 37(2)(d)‑‑Disqualification of candidate for local bodies election‑ Candidate a Government employee who had resigned from that post but no action was taken on that resignation till date of election and his resignation was accepted subsequently, with effect from a date prior to date on which election was held‑‑Plea that embargo was not attracted to his case and as such he was qualified to contest election, repelled‑ Candidate resignation was not accepted by date of election and he was in service of Government on that date‑‑Held: Candidate was disqualified from contesting election in view of prove o s of section 37(2)(d).

‑‑‑S. 37 (2) (d)‑‑Election to Local Bodies‑‑Disqualification of elected candidate‑‑Candidate having polled highest number of votes, declared elected‑‑Respondent's election petition challenging his election allowed on ground that candidate was disqualified from contesting election because of being teacher in Government school on that date‑‑Election of candidate declared void and respondent, who had polled next highest number of votes, declared successful‑‑Order impugned‑‑Plea that if disqualification of a successful candidate is not notorious, votes cast in his favour would not be deemed to have been thrown away so as to give seat to candidate with next highest number of votes‑‑Profession of candidate though shown in Electoral Roll as a milkman, he was in fact employed as teacher on election day‑‑People of area could be deemed to have considered him to be a school teacher on relevant date because very few people are literate in rural communities and voters hardly bother to check candidates' profession as mentioned in Electoral Roll‑‑Election Tribunal and High Court both, held, were justified in considering votes cast in candidate's favour as having been thrown away and, therefore, respondent who had polled next highest number of votes was rightly declared as successful candidate‑‑Appeal dismissed.

Rashid Ahmad Rahmani v. Mirza Barkat Ali P L D 1968 S 'C 301; Lal Muhammad v. M. Usman 1975 S C M R 409 and Saeed Hasan v. Pyar Ali and others P L D 1976 S C 6 ref.

Halsbury's Laws of England, 3rd Edn., Vol. 14 quoted.

Muhammad Ali Sheikh, Advocate Supreme Court and Ahmadullah Faruqi Advocate‑on‑Record for Petitioner.

Shah Jamil Alam, Senior Advocate Supreme Court and Shafiq Ahmad, Advocate‑on‑Record for Respondent No.1.

S.M. Abbas, Advocate‑on‑Record for Respondent No.4.

Date of hearing: 20th September, 1980.

This appeal is directed against the judgment of a Division Bench of the Sind High Court, dated 11‑12‑1979 whereby it dismissed the Constitutional petition filed by Abdul Ghani the present appellant.

2. The facts giving rise to the petition briefly are that Abdul Ghani, appellant contested the election to the Local Bodies held on 25‑9‑1979 from Ward No. 30 of Karachi. The other candidates against him were Mumtaz Hussain and Muhammad Ayub, respondents Nos. 1 and 2, respectively. Abdul Ghani polled more votes than both the rival candidates.

3. Feeling aggrieved Mumtaz Hussain, respondent No.1 filed an Election Petition against the present appellant alleging that he was disqualified from contesting the election, inter alia on the ground that he was a teacher in the Govt. Boys Primary, Raise Moosa Goth. By his order, dated 8‑11‑1979, the 1st Additional District and Sessions Judge, Karachi in his capacity as the Election Tribunal, accepted the Election Petition and declared the election of Abdul Ghani as void and at the same time held Mumtaz Hussain, respondent No .l. who had polled the next highest number of votes to be the successful candidate.

4. Abdul Ghani challenged the above noted order in the High Court through a Constitutional Petition but it was dismissed, vide the impugned judgment. He then petitioned to this Court for leave to appeal and Leave was granted to consider whether the disqualification of Abdul Ghani was such as to render all the voters cast in his favour wastes and thrown away, with the result that the candidate with the next highest number of votes could be declared successful and secondly as to whether or not Mumtaz Hussain, respondent, as well as his proposer and seconder were registered as voters in the constituency in question and if so, the effect thereof.

5. Before us the learned counsel for the appellant did not press the second point mentioned above. He admitted that the petitioner was employed as a teacher in the Government Boys Primary School, Raise Moosa Goth, but explained that he had resigned from that post through letter, dated 1‑11‑1978 but no action was taken on this application till the election was held on 25‑9‑1979. Subsequently, his resignation was accepted, with effect from 31‑8‑1979 i.e. from a date prior to the date on which the election was held, and that, therefore, the embargo placed by section 37 (2)(d) of the Sind Local Bodies Ordinance, 1979 was not attracted to his case and as such he was qualified to contest the election.

6. This contention had been raised before this Court at the leave granting stage as well, but was repelled on the ground that admittedly the petitioner's application for resignation had not been accepted by 26‑9‑1979 and that he was, therefore, in the service of the Government on that date, and was, consequently, disqualified from contesting the election in view of the provisions of section 37(2)(d) of the aforementioned Ordinance.

7. The learned counsel contended that the Order of the learned Election Tribunal was bad to the extent that it declared Mumtaz Hussain, respondent, as having been elected because he had obtained the highest number of votes after the appellant. In support of this contention he relied upon Rashid Ahmad Rahmani v. Mirza Barkat Ali P L D 1968 S C: 301. He submitted that it had been laid down as a general principle of law in Rehmani's case (supra) that if the disqualification of the successful candidate is not notorious the votes cast in his favour will not be deemed to have been thrown away so to give the seat to the candidate with the next highest number of votes. He submitted that the same view was later re‑affirmed by this Court in Lal Muhammad v. M. Usman 1975 S C M R 409 and S. Saeed Hussain v. Pyar Ali and others P L D 1976 S C 6.

8. He explained that the profession of Abdul Ghani, appellant had been shown in the electoral as a milkman and not as a school teacher and that this fact coupled with the fact that he had already submitted his resignation from the job as a teacher go to show that the voters had voted for him not as a teacher but with knowledge that he was work's as a milkman and as such in view of the principle enunciated in Rahmani's cast the votes cases in his favour were not wasted.

9. We have considered this contention in the light of the principle enunciated by this Court in Rehmani's case and other reported judgments referred to above. We notice that in arriving at the aforementioned view in Rehmani's case this Court had followed the criterion laid down by the British Courts for the guidance of Election Tribunals in such cases. Their conclusions have been summarised in para. 549 of Halsbury's Laws of England, 3rd Ed. Vol. 14 as follows:‑

"549. Votes given to a disqualified candidate ‑‑Votes given for a candidate who is disqualified may, in certain circumstances, be regarded as not given at all or thrown away and for so deciding, a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If however, the disqualification, is not notorious and depends on legal argument or upon complicated facts and inference, it would appear that even though the candidate may be unseated by reason of his disqualification the votes given to him will not be thrown away so as to given the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must before voting either have had or to be deemed to have had notice of the fact creating the candidates disqualification. It is not necessary to show that the elector was aware of the legal result that such fact entitled is disqualification. Votes given without such notice are good. after deducting the votes given after such notice from the total number of votes given for the disqualified candidate, he remains in a majority, the minority candidate cannot be seated and there must be a fresh election."

10. In view of the abovenoted principle, which he9 been followed by this Court in cases referred to in paragraph No. 7 above what is to be seen by us in the present case is whether the fact constituting the disqualification, namely, that the appellant was employed as a .school teacher in a Primary School run by the Government was well known and whether at the time of polling, the voters considered him to be a school teacher or they knew that having resigned from the said post, he was now a milk‑man by profession, as shown in the relevant column of the electoral roll, against his name. The question would turn upon the knowledge that the voters can be deemed to had as to the appellants profession or vocation because if they vote for him as a school teacher it will then be fair to infer that the voters were wilfully perversing in casting their votes in his favour despite this knowledge, even if it cannot be shown "that they were aware of the legal result that such fact entailed disqualification." And if that be the case, then the Election Tribunal was justified in having regarded the votes cast in his favour as thrown away and declare Mumtaz Hussain as having been elected.

11. As already mentioned in the present case, it is admitted that the petitioners letter of resignation had not been accepted when the election was actually held on 25‑9‑1979 and as such he was in fact, employed as a teacher on the election day. It has not been alleged that they had knowledge of his having sent a letter of resignation. Therefore, even if the appellant was not attending the school as asserted by him the people of the area can be deemed to have considered him to be a school teacher on the relevant date notwithstanding the fact that in the Electoral Roll his profession has been mentioned as milkman because very few people are literate in our rural communities and moreover, the voters hardly bother to check the candidates profession as mentioned in the Electoral Roll. We are, therefore, of the view that in the present case the persons who cast their votes in his favour could be legitimately deemed to have had notice of the candidates "disability" and still persisted in voting for him. As such the Election Tribunal and the learned High Court were both justified in considering the votes cast in appellant's favour as having been "thrown away". Therefore, the respondent No. 2 who had polled the next highest number of votes was rightly declared as the successful candidate.

12. For the foregoing reasons, this appeal is dismissed.

M. I. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.