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Writ Petition No. 10 of 1961, decided on 26th March 1963.

r. 7(2)‑Election set aside on either grounds by Controlling Authority‑Subject to scrutiny of High Court in exercise of its powers of certiorari‑Laws (Continuance in Force) Order (I of 1958), Art. 2(4).

r. 7(2)‑"Sufficient reason" ‑ Definition‑Question whether reason sufficient for setting aside election‑Depends on circumstances of each case‑Controlling Authority setting aside election on ground which no reasonable person could consider reasonable‑Order of Controlling Authority may be interfered with by High Court in its writ jurisdiction‑Election set aside for highly technical reason‑Held, illegal.

Mehr Allahyar v. Syed Hasan Jahanian Shah Gardezi P L D 1961 Lah. 247 ref.

Ch. Riasat Ali Khan for Petitioner.

Abid Hassan Minto for Respondent No. 2.

Date of hearing :26th March 1963.

‑This writ petition is by Muhammad Ali under Article 2 (4) of the Laws (Continuance in Force) Order, 1958, whereby he prays for quashing of the order of the Con trolling Authority, Gujranwala, dated the 28th of November 1960, whereby he set aside the election of the petitioner as Chairman of Kassise Union Council, District Gujranwala.

2. The facts of this case are simple. Muhammad Ali stood as a candidate for election to the Kassise Union Council and was duly declared elected. In the Provincial Gazette the name of respondent No. 3 was notified as Muhammad Khan, son of Sardar, instead of Muhammad Khan, son of Mehar Dad. We have seen his nomination paper put in by him and find that the word Mehar Dad is so written that it is capable of being read as Sardar. A clerical mistake has thus crept in. Muhammad Siddiq was nominated as a member of this Union Council. His name was gazetted by mistake as Muhammad Sadiq. The first meeting of the Union Council was convened for the 29th of February 1960, when all the elected and nominated members of the Union Council took the oath of office. Muhammad Khan took the oath as Muhammad Khan, son of Sardar, and Muhammad Siddiq took the oath as Muhammad Sadiq. Three persons, namely, Muhammad Ali petitioner, Muhammad Nawaz, respondent No. 2, and Muhammad Khan, respondent No. 3, stood fox election as Chairman. Of them, Muhammad Ali secured 9 votes and Muhammad Nawaz obtained 8 votes. The former was declared elected. Muhammad Nawaz, respondent No. 2, filed an election petition before the Controlling Authority against the election of Muhammad Ali as Chairman. This petition was accepted by the Collector acting as Controlling Autho rity, by his order, dated the 28th of November 1960. The election of the petitioner was declared void. Hence this writ petition.

3. The correction of the name of Muhammad Siddiq was made in his application, dated the 16th of March 1960 on the 31st of March 1960 and the parentage of Muhammad Khan was corrected in his application, dated the 3rd of June 1960 on the 14th of September 1960. There is no dispute in this case that Muhammad Khan, son of Mehar Dad, and Muhammad Siddiq are the duly elected and nominated members of the Union Council. They were the very persons who were elected and nominated and their identity as members is not in doubt. The sole point on which the Controlling Authority interfered was that they were not formerly members of the Union Council. The reasons advanced were that finality attached to the particulars mentioned in the Official Gazette, and as their particulars mentioned in the notifications were different from their particulars, i. e., name in one case and father's name in the other case, they could not have cast a vote. With regard to the correction of the particulars subsequently ordered by the Controlling Authority, it was observed that they should not have taken the oath under the particulars mentioned in the Gazette, but according to their own correct particulars. The defect was not treated as a material irregularity. In its absence the election could only be set aside under rule 7 (2) of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, for "any sufficient reason to be recorded."

4. In this writ petition learned counsel for the petitioner contends that as the very persons, who were duly elected or nominated as members of the Union Council had cast their votes in the election, there was no sufficient cause (reason and cause being synonymous) for setting aside the election of Muhammad Ali as void. Learned counsel has relied on the definition of "sufficient cause" as propounded in Mehr Allahyar v. Syed Hasan Jahanian Shah Gardezi, (P L D 1961 Lah. 247). In this case it was observed that "an election may be declared void for sufficient cause which need not necessarily have affected the result of the election, but it should be a reason which is acceptable to a reasonable person as of sufficient importance and weight to justify annulment of the election. If some fundamental error or defect in the election has occurred, which in the opinion of the Controlling Authority as a reasonable person, is material, the Authority may set aside the election. The Controlling Authority is empowered to declare an election void either for a material irregularity or for a sufficient reason to be recorded in writing. Where an election is set aside on either ground the order of the Controlling Authority is subject to the scrutiny of this Court in exercise of the powers of certiorari and this Court has the power to interfere and quash the order in appropriate cases. * * * * * The question whether the cause is sufficient for setting aside the election as void depends upon the facts of each case and the satisfaction of the Controlling Authority as a reasonable person, and no hard and fast rule can be laid down. No doubt the approach of the Controlling Authority to the question of reason able cause is not purely subjective but is objective as he is required to record his reasons, and the reasonableness of the cause is open to the scrutiny of this Court. This Court, however, will not interfere if the Controlling Authority may reasonably have deemed it sufficient cause for setting aside the election. Though it will not interfere as if it were a Court of appeal substituting its own view of the reasonableness of the cause, but it can and will interfere if the Controlling Authority sets aside an election on a cause which no reasonable person could have considered reason able."

5. Applying this principle to the present case, it is obvious that the reason for which the Controlling Authority set aside the election as void being that the two persons were not "formally members" was highly technical, and not a sufficient reason in the eye of a reasonable person. The emphasis is on the formality and not the substance. The mistakes in the father's name in one case and this member's own name in the other case were clerical mistakes and so long as there was no doubt about their identity. They were members, and as such were entitled to vote. This is not a case in which a name had incorrectly been printed in an electoral roll, which, after the date for objection, had passed, had become final. The mistake in the Gazette Notification was purely clerical for which they were not to blame and they could not lose their membership right, because of "printer's devil" or the mis take of a clerk in the office of the Controlling Authority. The mistake was duly corrected by the Controlling Authority and this should have been enough. The intention of the rules is not to deprive the members of their rights, but to enable them to act as members and to enjoy their rights and privileges. Except where the rules attach particular importance to technicalities the rules are to be so interpreted as to facilitate the functioning of the Union Council in accordance with the principle of justice, equity and good conscience. The rules make it clear that a member is entitled to cast a vote at the election of the Chairman and all those who are duly elected or nominated as members ought to be allowed to cast their votes. There being no doubt that they were members of the Union Council, the Controlling Authority could not have excluded the votes of the two on any reasonable or rational basis and no reasonable person could deem a clerical mistake as sufficient reason for inter ference to set aside the expressed choice of the members. To give effect to an objection of such a highly technical nature may lead to an injustice which no reasonable person should bring about. It cannot be ignored that at the time when the election of Chair man took place, there was hardly any time for a member to have the correction made and is he to lose his right to vote if a clerical mistake was made by someone in a Government Department. We are of the view that no reasonable person could have deemed the reasons given by the Controlling Authority as sufficient reason. It must be borne in mind that an election cannot be declared as void for any reason, but as provided by the rule, it must be a "sufficient reason". The highly technical objection taken in this case is not a "sufficient reason" in our view to set aside the election as void.

6. The learned counsel for the respondent only contends that as Muhammad Khan and Muhammad Siddiq did not take the oath of the office in their correct names as they should have but took the oath in the names and particulars as published in the Provincial Gazette, they were not really members of the Union Council, but he concedes that they were the members who were in fact elected and nominated under the rules. As members, they were entitled to cast their votes as they were members. The objection being purely technical is devoid of force.

7. The Controlling Authority in setting aside the election as void has set aside an election which was held with due formalities. Such election is not to be set aside under rule 7 (2) except for sufficient reason (or material irregularity). 'We are satisfied that there was no sufficient reason. In fact, setting aside of the election denies a right of vote to two of the elected members and nullifies their expressed choice. If so, where is the sufficiency of reason for declaring the election void

8. In the circumstances of the case, we have no hesitation in declaring as illegal the order of the Controlling Authority. We accept this writ petition with costs against respondent No. 2, who alone has contested this petition.

K. B. A./A. H. Petition accepted.

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