P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Almost all the important questions that arise in this writ petition and Writ Petition No. 46 of 1962 are the same, and, therefore, the two petitions will be disposed of by this order.

2. Before dealing with the questions of law that arise, I will detail some of the relevant facts. Fourteen casual vacancies occurred in the Union Committees of the following wards of Lahore, namely :‑ Shahdara Ward No. 1 One seat. Wassanpura Ward No. 3 One seat. Ganj Ward No. 11 One seat. Dharampura Ward No. 14 One seat. Mianmir Ward No. 15 One seat. Gulberg Ward No. 16 One seat. Sanda Kalan Ward No. 22 Three seats. Temple Road Ward No. 28 Two seats. Civil Lines Ward No. 29 One seat. Ram Gali Ward No. 39 One seat. Sabzimandi Ward No. 40 One seat. These seats remained vacant for a considerable time but in the last week of December 1961, Mr. Ahmad Raza Khan, Collector and Deputy Commissioner, Lahore, passed an order with regard to bye‑elections to the seats. That Mr. Ahmad Raza Khan, by virtue of his office as Collector of Lahore, could make this pro gramme for bye‑elections cannot be doubted and was not doubted at the hearing, as he acted under rule 4 of the West Pakistan Basic Democracies Election Rules, 1959, which appeared in the West Pakistan Gazette, Extraordinary, dated the 13th of November 1959 as Notification No. PEA‑59/940‑ER. These Rules were made by the Governor of the Province in exercise of the powers conferred on him by clause (1) of Article 72 and clause (2) of Article 89 of the Basic Democracies Order, 1959 (President's Order No. 18 of 1959) read with Entry 1 of the Sixth Schedule thereto. The election programme fixed by Mr. Ahmad Raza Khan by his order dated the 28th of December 1961, a copy of which is on the record as Annexure A, was as follows :‑ " In exercise of the powers conferred on me by sub‑rule (2) of rule 4 of the West Pakistan Basic Democracies Election Rules, 1959, for vacant seats, the following bye‑election pro gramme has been framed with the approval of the Commis sioner. Lahore Division. Lahore, for bye‑election to Union Committees Wards No;. 1 (Shahdara), 3 (Wassanpura), 11 (Ganj), 14 (Dharampura), 15 (Mianmir); 16 (Gulberg), 22 (Sanda Kalan, 3 seats), 28 (Temple Road, 2 seats), 29 (Civil Lines), 39 (Ram Gali), 40 (Subzimandi) of Municipal Corporation, Lahore. (1) Electoral Roll 29‑12‑1961. (2) Notice inviting nomination paper 29‑12‑1961. (3) Nomination paper 30‑ 12‑1961 (4) List of nomination papers received shall be posted on 30‑12‑1961. (5) Nomination papers shall be scrutinized and the statement containing the result of scrutiny shall be posted on 31‑12‑1961. (6) Applications for revision of orders passed on scrutiny of nomination papers shall be presented on 1‑1‑1962. (7) Revision of applications shall be decided on. 2‑1‑1962. (8) Candidates may withdraw their candidature on 2‑1‑1962. (9) List showing the names of candidates validly nominated and symbols allotted to them shall be posted on 3‑1‑1962. (10) Polling programme shall be published on 4‑1‑1962. (11) Polls shall be held on 5 & 6‑1‑1962. (12) Ballot‑papers shall be counted and results of bye‑election shall be declared on 7 & 8‑1‑1962. Under rule 4 (4) ibid, the bye‑election programme shall be published by copies being posted at the following offices: ‑ (i) Municipal Corporation ; (ii) Commissioner, Lahore Division, Lahore ; (iii) Collector, Lahore District, Lahore; (iv) Assistant Director, Basic Democracies, Lahore ; (v) Tehsildar, Lahore ; and (vi) General Post Office, Lahore." Some nomination papers were filed and of these one each was filed by Zaheer Din, Muhammad Ashraf Khan, Maqsood Ali Shah Gilani and Niaz Ahmad for Wards Nos. 40, 16, 15 and 3, respectively. Some other nomination papers were also filed but as it is not necessary to consider them for the purposes of the present petitions, they need not be mentioned. These nomination papers were scrutinised by returning officers on the dates mentioned in the election programme made by Mr. Ahmad Raza Khan. For the seat of Ward No. 40 regarding which Zaheer Din had put in his nomination papers, there were two other candidates, namely, Muhammad Anwar and Nur Muhammad. Scrutiny of the nomination papers of Ward No. 40 by Khan Azmat Ullah Khan, Magistrate 1st Class, Lahore, who bad been appointed the returning officer, took place on the 31st of December 1961 according to the programme fixed by Mr. Ahmad Raza Khan which has been reproduced above, and the nomination papers of all the three candidates were found to be in order. On the 2nd of January 1962, which according to the election programme made by Mr. Ahmad Raza Khan was the last date for withdrawal of candidature, Muhammad Anwar and Nur Muhammad withdrew their candidature. With regard to the seat of Ward No. 16, three persons, namely, Muhammad Ashraf Khan, Abdur Rashid and Muhammad Ali, filed nomination papers. Rana Muhammad Nawaz, Magistrate 1st Class, Lahore, who was the returning officer for this ward, declared all the nomina tion papers to be valid. On the 2nd of January 1962, which had been fixed by the programme prepared by Mr. Ahmad Raza Khan as the last date for the withdrawal of candidature, Abdur Rashid and Muhammad Ali withdrew their candidature for Ward No.

16. For the seat In Ward No. 15, the only person who filed his nomination paper was Maqsood Ali Shah Gilani. Khan Azmat Ullah Khan, Magistrate 1st Class, Lahore, who was the returning officer. for this ward, scrutinised this nomination paper and declared it to be valid. In connection with the seat of Ward No. 3, the only person who filed his nomination paper was Niaz Ahmad. This paper was scrutinised by Khan Azmat Ullah Khan, Magistrate, 1st Class, Lahore, the returning officer, and was found to be in order on the 31st of December 1961 which was the date for scrutiny of nomination papers according to the programme prepared by Mr. Ahmad Raza Khan.

3. On the 4th of January 1962, Kanwar Zulfiqar Ali Khan who signed himself as Collector Lahore, passed an order that the election programme prepared by Mr. Ahmad Raza Khan shall be replaced by a programme prepared by him (Kanwar Zulfiqar Ali Khan). When this change in the programme came to the notice of the candidates whose names have been mentioned already as persons who had no rival candidates, they sought relief from this Court by means of issue of appropriate writs. Writ Petition No. 32 of 1962 was presented jointly by three persons, namely, Zaheer Din, Muhammad Ashraf Khan and Maqsood Ali Shah Gilani, while Writ Petition No. 46 of 1962 was presented by Niaz Ahmad. In Writ Petition No. 32 of 1962, besides the Collector Lahore, the respondents were Khadim Hussain and Muhammad Ashraf Khan, who were shown as respondent No. 2 and respon dent No. 3 respectively, while in Writ Petition No. 46 of 1962 the sole respondent was the Collector Lahore. Khadim Hussain and Muhammad Ashraf Khan were evidently Impleaded as res pondents it, Writ Petition No. 32 of 1962 because they had put In applications for change in the programme already prepared by Mr. Ahmad Raza Khan. It was mentioned in the opening paragraph of the order of Kanwar Zulfiqar Ali Khan, a certified copy of which is on the record as Annexure G, that Abdur Rahman and Muhammad Ishaq represented by Mr. Nur Muhammad Butt, Advocate, and Muhammad Ashraf represented by Mian Hafiz Hamayun, Advocate, from Ward No. 11, Union Committee Ganj Mughalpura, and Mr. Khadim Hussain, repre sented by Main Hafiz Ahmad from Ward No. 14, Union Committee Dharampura, had put in applications praying that the programme may be changed.

4. Of the respondents in the two Writ Petitions, the only one who appeared at the hearing to contest the issue of writ was Khadim Hussain, respondent No. 2 In Writ Petition No. 32 of 1962, who was represented by Mr. Islam‑ul‑Haq, Advocate. No one appeared for the Collector Lahore in either of the two writ petitions. No written statement was put in on behalf of Khadim Hussain, respondent No. 2 in Writ Petition No. 32 of 1962, but his learned counsel addressed arguments. After the arguments concluded, necessity was felt for getting information on the following points: ‑ (i) whether Kanwar Zulfiqar Ali Khan had been appointed a Collector under the Basic Democracies Order, 1959 ; (ii) had Kanwar Zulfiqar Ali Khan, before passing his order on the 4th of January 1962, whereby the programme of bye -elections was changed, obtained approval of the Commissioner to the change ; (iii) whether the Provincial Government had passed any order with regard to the change in the programme of the bye -elections ; and (iv) to which Ward Abdur Rahman and Muhammad Ishaq, whose names appeared in the opening paragraph of the order of Kanwar Zulfiqar Ali Khan, belonged. The Deputy Registrar of this Court was directed to write to the Collector to send information regarding these matters. By his memorandum No. LFC/W.1. 405 (Elections)/ 1394, dated the 22nd of January 1962 to the address of the Deputy Registrar of this Court, the Collector Lahore sent the following reply " Kindly refer to your endorsement No. 1178/Civil, dated the 19th January 1962 on the subject cited above. The requisite information is given below seriatim: ‑ (1) (i) No separate notification was issued by the Government and these powers are exercised by the Collector ex‑officio. Kanwar Zulfiqar Ali Khan has been exercising the powers of a Collector in Lahore District as Additional Deputy Commis sioner (Revenue) and later as Additional Deputy Commissioner (Consolidation). (ii) Kanwar Zulfiqar Ali Khan assumed the approval of the Commissioner in accordance with the past practice. Written approval has now been received from the Commissioner, Lahore Division, Lahore (copy enclosed). (iii) Copy of Government Order on this subject is enclosed. (2) . . . . . . . . . . . (3) It is submitted that Abdur Rahman and Muhammad Ishaq had put in their applications regarding Ward No. 11. (4) The information called for is submitted in time." The order of the Commissioner, to which reference was made by the Collector in his communication to the Deputy Registrar of this Court, bears the number BD/30/lI/887 and the date the 20th of January 1962 and, according to a copy sent by the Collector, reads as under: ‑ "Letter No. SOI (LG)‑LMC‑2 (110)/62, dated the 12th January 1962 from the Secretary to Government, West Pakistan, Basic Democracies and Local Government Department to the Com missioner, Lahore Division, Lahore. A copy is forwarded to the Collector, Lahore District, Lahore, with reference to the correspondence resting with his memo randum No. LFC/ W‑I‑405 (Elections)/ 104, dated the 5th January 1962 for necessary action. (2) Approval of the Commissioner, under rule 4 (2) read with rule 49 of the West Pakistan Basic Democracies Election Rules, 1959, to the election programme framed by the Collector, Lahore, and received with his memorandum No. LFC/ W‑1‑405 (Elections)/ 104, dated the 5th January 1962, is also hereby conveyed." While the order of the Provincial Government, a copy of which was attached to memorandum No. SOI (LG)‑LMC‑z (110)/62, dated the 12th of January 1962, Win the following terms :‑ " Reference: Your endorsement No. 119 dated the 8th January 1962, on the subject noted above. (2) In modification of all previous proceedings, I am directed to convey sanction under rules 4 (1), 4 (2) and 4 (5) read with rule 49 of the West Pakistan Basic Democracies Election Rules, 1959, to the modified bye‑election programme of Union Committees Nos. 1, 3, 11, 14, 15, 16, 22, 28, 29, 39 and 40 of Lahore Municipal Corporation. Further action may now kindly be taken by the Collector, Lahore District."

5. It was contended on behalf of the petitioners that as Kanwar Zulfiqar Ali Khan, who passed the order changing the programme originally made by Mr. Ahmad Raza Khan, Collector Lahore, had not obtained the approval of the Commissioner before passing the order regarding the change, his order was invalid. No previous approval was obtained by Kanwar Zulfiqar Ali Khan before be directed the change of the election programme, by means of his order dated the 4th of January 1962, as is clear from the documents sent by the Collector as appendices to the reply which he sent to the questions addressed to him by the Deputy Registrar of this Court under the orders of the Bench hearing the case. The question arises whether the approval granted on the 20th of January 1962 could be availed of. I have given the matter my anxious consideration and have arrived at the con clusion that the word " approval " occurring in sub‑rule (5) of rule 4 of the West Pakistan Basic Democracies Election Rules, 1959, which reads as under: " The Collector may with the approval of the Commissioner amend, vary, or modify the Election Programme framed under sub‑rule (2) provided that unless Government otherwise directs, no such amendment, variation, or modification shall be deemed to invalidate any proceeding taken before the date of such order." means an approval obtained before the change in the programme of elections is ordered. It is clear that the Commissioner's approval was sought after the new programme had been prepared by Kanwar Zulfiqar Ali Khan because the letter whereby the approval was accorded by the Commissioner mentions the memo randum of the Collector dated the 5th of January 1962, while the impugned order of Kanwar Zulfiqar All Khan was passed on the 4th of January 1962. It follows, therefore, that the approval granted by the Commissioner after the thing for which approval had been accorded had been done cannot cure the defect which had initially occurred in the order of Kanwar Zulfiqar All Khan by means of which order the new election programme a copy of which is on the record as appendix H to the writ petition, was to start on the 15th of January 1962 and five of the twelve things to be done had been done before the 20th of January 1962.

6. The question however arises whether the approval of the Provincial Government, which is mentioned in the letter sent by the Collector to the Deputy Registrar of this Court, cannot act as a panacea for all shortcomings of the order of Kanwar Zulfiqar Ali Khan. It is my considered opinion that the answer to this question has to be in the negative. My reasons for this view are two. The first is that if the programme had been changed in a manner not allowed by the relevant provision of the rules and the order which directed the change was for that reason void the result is that it could not be validated either wholly or partially by the Provincial Government. My second reason is that the Provincial Government could say only with regard to those cases in which elections had to take place that even things done before the change of the programme were to be done over again. In the present case, the facts are such that the order of the Government cannot work to the prejudice of the petitioners in the two writ petitions. I have mentioned already that on the 2nd of January 1962, that is two days before the change of the election programme was ordered by Kanwar Zulfiqar Ali Khan, returning officer who had been validly appointed had shown each of the three petitioners in Writ Petition No. 32 of 1962 and the sole petitioner in Writ Petition No. 46 of 1962 as the solitary candidate for some of the seats which had to be filled by election. When such a contingency arises, the matter is governed by rule 20 of the West Pakistan Basic Democracies Election Rules, 1959, which consists of three sub‑rules and reads as follows :‑ " (1) If the number of candidates validly nominated in any ward is less than the number of members to be elected for such ward, such candidate or candidates shall be returned un opposed, and for the remaining seats elections shall be held as in the case of a casual vacancy. (2) If the number of candidates validly nominated in any ward is equal to the number of members to be elected for such ward, such candidate or candidates shall be returned unopposed. (i) If the number of candidates validly nominated in any ward is greater than the number of members to be elected for such ward, the issue shall be decided by the taking of poll in accordance with the provisions of these rules." The above reproduced sub‑rule (2) makes it clear that each of the four petitioners in the two writ petitions bad been returned unopposed to the seat to which he had sought election. Once a person has been returned unopposed he can be treated as a non elected person only if his election is set aside under the provisions of law applicable to elections. The provision applic able to elections to Basic Democracies in West Pakistan is con tained in sub‑rule (1) of rule 55 of the West Pakistan Basic Demo cracies Rules, 1959 which Is in the following terms:‑ " (1) No election shall be called in question except by an election petition presented in accordance with these rules." In the cases under consideration, no election petition was filed by anyone against the election of the petitioners in the two writ petitions and, therefore, under the law as it stands, they were validly elected members subject of course to the condition that their election may be nullified by an order passed by an Election Tribunal appointed under the West Pakistan Basic Democracies Election Rules, 1959. If an election petition is put in, the reasons on the assumption of which Kanwar Zulfiqar Ali Khan acted could possibly be raised as a ground for setting aside the election.

7. Though it was not mentioned during arguments of counsel I consider it necessary to mention another matter. Rule 4 of the Basic Democracies Election Rules, 1959, makes ft clear that the election programme has to be made or changed by the Collector with the approval of the Commissioner. The word " Collector " is not defined in the West Pakistan Basic Demo cracies Election Rules, 1959, but one finds the definition of the term in the Basic Democracies Order (President's Order No. 18 of 1959). Sub‑clause (8) of clause 2 of the Basic Democracies Order, 1959 reads as under :‑ " ` Collector ' means the Chief Officer in charge of the revenue administration of the District concerned, and includes a Deputy Commissioner, and any other officer specially appointed by the Government to perform all or any of the functions of a Collector under this Order." This definition would make it clear that it is open to the Provincial Government to appoint anyone as a Collector for the purposes of the Basic Democracies Order, be that person a Collector of the District in the ordinary sense or not. A person can be deemed to be a Collector for the purposes of subsection (8) of section 2 of the Basic Democracies Order, 1959, if he is the Chief Officer in charge of the revenue administration of the District or a Deputy Commissioner of that District and in case he does not hold those positions if he is specially appointed by the appropriate Government to perform all or any of the functions of the Collector under the Order. As mentioned already the West Pakistan Basic Democracies Rules do not contain a definition of the term " Collector ". It is hardly open to question that if a term occurs in rules made under a law and the rules do not contain the definition of a term but the law does, the definition given in the law is applicable to the term wherever it occurs in the rules unless there be anything in the context to show the contrary. There is nothing in the West Pakistan Basic Demo cracies Rules, 1959, to show that the term " Collector " occurring therein, does not bear the same meaning as it does in the Basic Democracies Order, 1959, under which the rules were made and it follows, therefore, that the term " Collector " must be deemed to have the same meaning for the purposes of the rules as it has for those of the Order. That Mr. Ahmad Raza Khan is the Collector of Lahore District is undeniable and for that reason it is clear that by virtue of that appointment he is the Chief Officer in charge of the revenue administration of the District and indeed Mr. Ahmad Raza Khan in the communication that he has sent to the Deputy Registrar of this Court in reply to the letter sent to him in connection with these petitions has shown his designa tion as Collector of the District. I am prepared to accept as correct the assertion of Sheikh Islam‑ul‑Haq that Kanwar Zulfiqar Ali Khan is an Additional Deputy Commissioner and has also been granted all the powers of Collector under the Land Revenue Act, which assertion receives support from the reply sent by Mr. Ahmad Raza Khan to the questions asked from him, but even so Kanwar Zulfiqar Ali Khan does not satisfy the definition of the word " Collector " given in subsection (8) of section 2 of the Basic Democracies Order, 1959, because he has not been appointed by Government to perform the duties of a Collector under the Basic Democracies Order, 1959.

8. There is yet another aspect of the matter which has its own significance. The order of Kanwar Zulfiqar Ali Khan shows clearly that it was only persons from Wards Nos. 11 and 14 that bad raised objections to the election programme prepared by Mr. Ahmad Raza Khan. The petitioners In the writ petitions do not belong to any of those two wards and it would appear that no one residing in or haring a right to vote for seats in the wards for which the petitioners in the two writ petitions were seeking election had any objection to the election programme already fixed by the Collector. In view of these facts, it would have been better if Kanwar Zulfiqar Ali Khan had changed the pro gramme only with regard to the constituencies the residents and voters of which had prayed for the change in the programme and though for the reasons already given even that order would have been invalid it would at least have been immune from the attack that it was passed in favour of persons who had not prayed for it.

9. In view of what I have said above, I would hold that the petitioners in the two writ petitions, had been returned unopposed and the order regarding the change of programme passed by Kanwar Zulfiqar Ali Khan, even if It were valid which it has been held not to be, could not affect their election which was unopposed. I need hardly add that though this unopposed election of the petitioners is as much liable to be set aside by means of an election petition as a contested election is, it will remain effectual till such time as it is declared by a competent authority to be ineffectual. For the reasons given above, I would accept both the petitions with costs. ABDUR RAHIM KHARAL, J.‑I. agree. A. H. Petition accepted.