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Writ Petition No. 331 of 1960, decided on Ist August 1960.
Qualification of candidate‑Age‑Twenty‑five years "on first day of January preceding the election"‑"Election" ‑Meaning‑Notification of name of successful candidate‑Date of Notification, crucial date.
The term "election," as employed in paragraph 1 of Part 11 of the Second Schedule of the Basic Democracies Order, 1959, means the completed process of election comprising all the various steps including the declaration of the final result and its notification and it is the date of the completed process and not any previous stage which has to be taken into account for computing the age of a candidate on the first day of January preceding it.
When the law requires that certain processes have to be taken to complete an event, all those processes must be taken in order to invest that event with legal sanctity. When the legal require ment in the case of election of the members to the Basic Democracies is that the result of the election must be declared by a competent authority and further that the election must also be notified, these legal formalities have to be observed to complete the legal process of election. Until this is done the process remains incomplete.
"Mere poll" does not mean "election" and could not have been intended to be such by the author of the Order.
Where nomination papers were filed on 3‑12‑1959 for polling taking place on 26‑12‑1959, and after counting of votes on 10‑1‑1960, the successful candidate was declared elected on the same day, the date of birth of such candidate being 20‑8‑1934
that the crucial date on which the candidate should have been 25 years of age was 1‑1‑1960 and not 1‑1‑1959, and so the candidate had not incurred any disqualification under para. 1, Part II, Second Schedule to the Basic Democracies Order, 1959.
Misconstruction and misinterpretation of relevant provisions of law‑Patent illegality‑Certiorari issued ‑ Election case‑Constitution of Pakistan (1956), Art. 170.
Hassan Akhtar for Petitioner.
Ali Ahmad Khan for Respondent No. 1.
Qazi Ata Ullah for Respondent No. 2.
Date of hearing : 20th July, 1960.
This writ petition filed by Irfan Akhtar Shah, a resident of Chak No. 114/S. B., Tehsil and District Sargodha, raises the question of the minimum qualifying age for membership to the Basic Democratic Institutions as envisaged in the Basic Democracies Order (President's Order 18 of 1959), which will be hereinafter referred to as the Order.
2. The question has arisen in the following circumstances ; The petitioner and the respondent, Allah Dad Khan, were both candidates for election to Ward No. 3, Union Council No. 10 of Chak No. 115/5. B., Tehsil and District Sargodha. It was a single member constituency for which as per published programme bearing the date‑sheet for the various events connected with the election, nomination papers were filed on the 3rd of December, 1959, and scrutiny of the nomination papers was done on the 6th and 7th of December 1959. No objection was raised by either of the rival candidates against each other's nomination and the nomination papers of both of them were accepted on the 7th of December 1959. The actual poll took place on the 26th of December 1959. The counting was done on the 10th of January 1960. The petitioner polled 312 votes against 182 polled by his rival, respondent No. 2, and was declared elected on the 10th of January 1960.
3. The petitioner's success in the election was, however, challenged by respondent No. 2 by an election petition filed under rule 55 of the West Pakistan Basic Democracies Election Rules, 1959, hereafter to be cited as the "Rules". Only one ground was taken in the election petition, namely, that the petitioner, Irfan Akhtar Shah, was not qualified to contest the election as he was below age, not being 25 years old on the 1st of January 1959 as required by the provisions of Paragraph 1, Part II of the second Schedule to the Order. Respondent No. 2 produced a copy of the birth entry of the petitioner which showed his date of birth to be the 20th of August 1934. He also produced a copy of the school leaving certificate of the petitioner which showed his date of birth to be the 7th of August 1934. The petitioner did not enter into a contest on this point and admitted that his date of birth was the 20th of August 1934 as stated in the copy of the birth entry produced by the respondent. Taking this as the admitted date of the petitioner's birth, he was obviously below 25 years of age on the 1st of January 1959, but his case was that the relevant date for the computation of his age as a member under the Order was the 1st of January 1960 and not the 1st of January 1959 and that on the former date, which preceded his election on the 10th of January 1960, he had attained the age of 25 years, as required by the relevant provisions of the Order.
4. The decision of the question depends on the meaning to be given to the word "election" in the context of paragraph 1 part II of the second Schedule of the Order, which may here be reproduced with advantage :‑
"(1) Qualification of candidates.‑
A person who is not less than twenty‑five years of age on the first day of January preceding the election shall be qualified to be elected as member of the Union Council or a Town or Union Committee if his name appears for the time being on the electoral roll for the Town or Union concerned, and he does not suffer from a disqualification mentioned in Part 1."
"Election" is not defined in the Order itself, but it is defined in the Rules which were framed by the Governor of West Pakistan in exercise of the powers conferred on him by clause (l) of Article 72 and clause (2) of Article 89 of the Order read with entry 1 of the sixth Schedule thereto. Entry 1 of the sixth Schedule provides for organisation and conduct of the election. In sub‑clause (8) of rule 2, which is the definition clause, of the Rules, the word "election" is defined as follows :‑‑
" Election' means an election to file a seat in a Basic Democracy."
It is apparent that this definition is not helpful in determining the issue arising in this case as it simply begs the question as to when an election to fill a seat in a Basic Democracy can be said to have taken place. Election is a process consisting of several events and, as required by the Rules, each event has to be timed on and performed by a particular date or dates to be specified by the election authorities in the election programme. Rule 4 lays down these various items and it will be useful to recount them in the order contained therein in the language of the rule itself, which reads as follows :‑
"(1) Election Programme.‑(1) The Election Authority shall frame a general programme for elections to the Basic Democracies in the Province of West Pakistan.
(2) Subject to the General Programme an framed under sub rule (1), the Collector shall with the approval of the Commis sioner frame a programme for election to every Basic Democracy in Form I, hereinafter referred to as the Election Programme.
(3) The election programme shall specify the date or dates, on, by or within which‑
(a) the electoral roll shall be published ;
(b) the notice inviting nomination papers shall be published ;
(c) the nomination papers shall be presented ;
(d) the list of nomination papers shall be posted up ;
(e) the nomination papers shall be scrutinised and the statement showing the result of scrutiny shall be posted ;
(f) application for revision against the order of the scrutiny of nomination papers may be presented ;
(g) the revision applications shall be decided ;
(h) the candidate may withdraw his candidature ;
(i) the list of valid nominations along with the symbols allotted to each candidate, shall be posted ;
(j) the polling programme shall be published ;
(k) the poll shall be held ;
(I) the ballot papers shall be counted, and
(m) the result of the election shall be declared."
Each one of the events mentioned above forms a part of the election programme and the point is whether and when stage is reached on the happening of any of these events resulting in the "election" of the candidate to be related to the 1st day of January preceding it on which date the candidate must be 25 years of age as required by the provisions of the Order mentioned above. The learned counsel for respondent No. 2 contended that such a stage is reached, if not earlier, at least on the date of the filing of the nomination papers, which to be valid must be in favour of a candidate who is possessed of the necessary qualifications as required by the Order. This argument would have been valid if the date of the filing of the nomination papers could be held as synonymous with the date of the "election", but clearly enough it is not so. Where the nomination papers of more than one candidate are accepted, they enter the arena for their election. However, if on the scrutiny of the nomination papers only one candidate is left in the field, his nomination papers alone having been accepted as against the rejection of the nomination papers of the rest of the candidates, he in the technical electoral terminology is said to have been "returned" without a contest and he would, for all practical purposes, be deemed to be elected the moment this event is duly declared and notified. In my opinion, if the law making or the rule making authority had intended to tie down "election" with a particular stage in the entire process of election for purposes of qualifications as to age, it would have clearly stated so either in the Order itself or in the Rules framed thereunder. This has been done in the matter of the qualifications of electors as distinguished from members in paragraph 1 Part I of the second Schedule of the Order which cites the qualifications and disqualifications of electors. The qualifications as to the age of an elector is contained in paragraph 1 clause (b), which is to the following effects :‑
"(1) Qualifications of electors :‑A person shall be entitled to be an elector if‑
(b) he is not less than twenty‑one years of age on the first day of January in the year in which the preparation or revision of the electoral roll commences."
It will be seen that a particular event in the process of election, viz., the preparation or revision of the electoral roll, is mentioned in this rule and if in the qualification clause relating to candidates the law making authority has, instead of mentioning any particular stage, used the general word "election", its intention appears to be manifest, which is that the candidate should be 25 years of age on the date of his final "election" in the sense of a "culminated event" covering all the necessary steps preceding it.
5. It was next contended by the learned counsel for respon dent No. 2 that "election" after all means selection by the voters and for that reason the date of the poll may be taken as the date of the election on which date the voters exercise their choice in respect of their candidates and elect them. In this case, the date of the actual poll is also not helpful to the petitioner for computing the minimum qualifying age. This argument is prima facie attractive, but it overlooks certain important items in the process of election, namely, the counting of votes and the declaration of the result, which have to be included date‑wise in the election programme, which is required to be published under sub‑rule (4) of rule 4 of the Rules. A candidate in a constituency might poll a majority of votes, but on actual counting he may lose his majority as a good number of his ballots may have to be discarded for one defect or another as contemplated by rule 47 of the Rules. Or may be the ballot boxes are burnt or stolen after the poll and fresh re‑election has to be ordered. Therefore, before the actual counting, whatever the forecasts about the results nobody is in a position to tell as to which candidate has won the election‑in other words who has been "elected". In my view, therefore, the "mere poll" does not mean "election" and could not c have been intended to be such by the author of the Order.
6. The declaration of the result of the election, which immediately follows the counting of the votes, is an independent item in the election programme and is stated separately in rule 48 of the Rules. This reads as follows :‑
"48. Declaration of Result‑(1) When the votes of all the contesting candidates have been counted the names of the candidates shall be arranged in the order of the number of valid votes obtained and the candidates in that order equivalent to the number of seats to be filled shall be declared elected."
A reference may also be made to section 26 of the Order, which requires that every election, nomination, resignation or removal of a member shall be notified by the controlling authority in the prescribed manner. I consider that when the law requires that certain processes have to be taken to complete an event, all those processes, must be taken in order to invest that event with a legal sanctity. When the legal require ment in the case of election of the members to the Basic Democracies is that the result of the election must be. declared by a competent authority and further that the. election must also be notified these legal formalities have to be observed to complete the legal process of election. Until this is done the process remains incomplete. The term "election", in my opinion, as employed in paragraph 1 of Part II of the second Schedule of the . Order, means the completed process of election comprising all the various ,q steps including the declaration of the final result and its notification and it is the date of the completed process and not any previous stage which has to be taken into account for computing the age of a candidate on the first day of January preceding it. On this test, the petitioner was more than . 25 years of age on the 1st of January, 1960.
7. The view that I have formed on the interpretation of the relevant provisions of the Order and the Rules, in my judgment, accords with the language as well as the purpose and spirit of the provisions. A candidate does not embark on his functions until his election is notified followed by assumption of office. It is at this stage that the minimum age qualification‑ of a candidate assumes a practical importance in relation to the task in which he is to engage himself.
8. In my view, the Election Tribunal has misconstrued and misinterpreted the relevant provisions of law bearing on the subject and has thus committed a patent illegality, depriving the petitioner of his valuable legal right to represent his constituency D after his valid election. I would, therefore, issue a writ of certiorari quashing the order of the Election Tribunal dated the 20th of April, 1960 and accept this petition with costs against respondent No. 2.
SHABIR AHMAD, J.‑I agree.
A. H.
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