P L D 1988 Lahore 501 (PLP)

ZIA MAHMOOD MIRZA, J.‑‑Petitioner who claims to have been elected /returned unopposed as a member of the Union Council Mir Amanullah, tehsil Depalpur, District Okara in the recently held Local Council Elections and intends to contest the election of Chairman of the said Union Council has filed this constitutional petition to call in question what he describes as a decision of the respondent authorities to hold the elections of the representatives of special interests viz. peasants, workers and women and of the Chairmen and Vice Chairmen of the Local Council by raising of hands. Prayer made in the writ petition is that "the decision of the respondent No.1 may kindly be declared as unconstitutional, unwarranted by law and also against the law provided in the Punjab Local Government Ordinance 6 of 1979.11 Petitioner has further prayed that a direction be given to respondent No.1 "that the election to elect members to represent special interest i.e. peasants, workers and women, Chairmen and Vice‑Chairmen of the Local Councils should be held by secret ballot as it is provided in the Constitution and relevant Sections of the Punjab Local Government Ordinance, 1979 and in the Manual of Instructions for the guidance of Deputy Commissioners and Returning Officers for Election to Local Councils in the Punjab."

2. Petitioner who is an Advocate has himself argued this petition. From the averments made in the petition and the submissions made by the petitioner at the bar, it appeared that his grievance was based on some press reports. We, therefore, sent for the Advocate General to find out the legal position vis‑a‑vis the grievance agitated in the writ petition. Mr. Tanvir Ahmed Khan, learned Additional Advocate General appeared and submitted that the, Punjab Local Councils (Election) Rules dealing with the subject in dispute have been duly amended so as to provide for the impugned mode of poll through show of hands. He produced a photo copy of the Notification No. SOV.2‑4/79 dated 7‑12‑1987. By this Notification, rule 57 has been substituted as a whole as in rule 60 sub rules (2) and (3) have been substituted. Rule 57 in its present form reads as under:‑ "Rule

57. The Poll. (1) The Presiding Officer shall hold a meeting of the Muslims and Non‑Muslim Members and call upon them to elect members of each type of special interest; (2) A candidate may withdraw his candidature before the Presiding Officer proceeds to take the poll and thereupon such person shall cease to be a candidate; (3) If the number of contesting candidates is not more than the number 'of seats allocated to the local councils to represent the special interest such candidate or candidates shall be declared by the Presiding Officer to have been duly elected as members of the Local Council; (4) If there are more candidates than the number of seats allocated to the Local Council, the poll shall be held by raise of hands for each type of special interest; (5) The Presiding Officer shall record the proceedings in writing and obtain thereon the signatures of such candidates as have witnessed the proceedings and may desire to sign the same. (6) The Presiding Officer shall submit a return of election to the' Deputy Commissioner, and shall publish the names of the elected members representing the special interest in the official gazette and supply copies thereof to the Election Authority." Rule 60 as amended is as follows:‑ (1) A separate poll shall be held for election of a Chairman and a Vice‑Chairman of a Local Council; (2) The poll shall be held by raise of hands; (3) The provisions of Chapter‑VI in regard to poll as far as may be, shall mutatis mutandis apply to the election of Chairman or Vice‑Chairman of a Local Council."

3. Confronted with the afore‑quoted rules clearly providing for the holding of polls for the election of representatives of special interests and of Chairman and of Vice‑Chairman by raising of hands petitioner sought to argue that the amendments made in the rules were ultra vires the provisions of section 13 of the Punjab Local Government ordinance. His precise argument was that the mode of election provided by section 13 was through secret ballot and it could not be varied by the rules. The argument appears to be misconceived. Relevant portion of section 13 is reproduced hereunder: ‑

13. Mode of election.‑ (1) Save as otherwise provided in the Ordinance, election of members of all local councils shall be held on the basis of adult franchise through secret ballot: Provided that the representatives of peasants, workers and women shall be elected by the directly elected Muslim and Non‑Muslim members of a Local Council in the prescribed manner."

4. A fair reading of the afore‑quoted provision shows that its substantive clause lays down the mode of election Of the members of the Local Councils to be directly elected and it provides that they shall be elected on the basis of adult franchise through secret ballot. The proviso, on the other hand, deals with the representatives of peasants, workers and women and it lays down that their electorate shall consist of the members of the Local Councils directly elected and that these representatives shall be elected in the prescribed manner that is to say in the manner prescribed by the Rules. Quite clearly, the Legislature by enacting the proviso left the mode of election of the representatives of peasants, workers and women to be provided and regulated by the rules. Rule‑making authority has, A therefore ' competently framed/amended rule 57 so as to provide in, sub‑rule (4) thereof that "The poll shall be held by raise of hands for each type of special interest." Petitioner appears to have based his argument on the substantive provision of section 13(l) being completely oblivious of the proviso appended thereto and its effect. A proviso, it is generally accepted, is in the, nature of an exception to the substantive provision to which it has been appended. Refer "Pramatha Nath Chowdhury v. Kamir Mondal" (P L D 1965 S C 434). It may also be noted that Section 13 its, no relevance whatsoever: so far as the election of Chairman and vice‑Chairman of a Local Council is concerned. Relevant provision in this behalf is section 12 of the Punjab Local Government Ordinance, Subsection (2) whereof provides "A Chairman and a Vice‑Chairman of Local Council shall be elected, in the prescribed manner, from amongst the members of a local council:" This provision, too, like the proviso to section 13(l) leaves the manner of poll to be provided by the Rules. That being so, the Rule‑making authority was within its rights to provide in rule 60 that the poll for election of a Chairman and a Vice‑Chairman of a Local Council shall be held by raise of hands.

5. Petitioner then referred to rule 29 of the Local Councils (Section) Rules and submitted that this rule clearly envisages that an election shall be held through secret ballot. According to the petitioner, this rule not having been amended, the elections of the representatives of special interests and of the Chairman and the Vice‑Chairman of the Local Councils shall have to be held by secret ballot. No doubt, Rule 29 provides "An election under these rules, shall be decided by secret ballot 11 but this rule has no bearing on the elections of representatives of peasants, workers and women and of the Chairman and Vice‑Chairman of Local Councils. It may be noted that rule 29 falls under Chapter IV which relates to election of members to Muslim seats of Local Council except Tehsil Council. The rule in question is, therefore, applicable only in the case of election of Muslim members of the Local Council except the Tehsil Council. It may be relevantly pointed out that the provisions regarding the election to the seats of special interests viz. peasants, workers and women, falls under Chapter VI (from Rule 49 to Rule 57) and those relating to the election of a Chairman and a Vice‑Chairman. fall under Chapter VII (Rule 58 to Rule 61).

6. Petitioner also sought to rely upon rules 80 and 81 of the Weal Councils (Section) Rules to contend that despite the amendments made in rules 57 and 60 elections in question were contemplated to be held by secret ballot. This contention, too, has no substance. Rules 80 and 81 are penal provisions. They prescribe punishment for the persons guilty of communicating any information obtained in a polling station as to the candidate for whom a voter in that station is about to vote or has voted or of failure to maintain secrecy of voting, etc. These provisions obviously have no significance or even relevance so far as the elections of the representatives of special interests and of the Chairman and of the Vice‑Chairman of the Local Councils are concerned because they are no more required to be held through secret ballot. It may be observed that the penal provisions contained in Rules 80 and 81 are relatable to the elections of Muslim and non‑Muslim members of the Local Councils which are still to be held through secret ballot.

7. Last of all, petitioner sought to draw support for his submission from the provisions of Articles 32 and 226 of the Constitution. Reference to these Articles of the Constitution is wholly irrelevant as will be presently shown. Article 32 provides "The State shall encourage Local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation E will be given to peasants, workers and women." This Article occurs in the Chapter relating to the principles of policy and it requires the State to ensure that in Local Government Institutions, special representations shall be given to the peasants, workers and women. It is not the case of the petitioner that the peasants, workers and women are being denied the representation in the local council. In fact, the elections are being held to give them representation through their chosen representatives. Petitioner's grievance is only with respect to the mode of polling by raise of hands. The impugned mode is not in any manner violative of Article 32 of the Constitution because despite the change in the mode of polling, elections are being held to give representation to the peasants, workers and women. Article 226 is also of no help to the petitioner as it provides that all elections under the Constitution shall be by secret ballot. Now, the elections in respect whereof the grievance has been agitated by the petitioner are admittedly being held under the Punjab Local Government Ordinance and not under the Constitution. That being so, reliance on Article 226 is wholly unwarranted.

8. As shown above, none of the contentions raised by the petitioner has any force. This petition has no merit and is dismissed in limine. A.A. /S‑182/L Petition dismissed.