P L D 1961 (W (PLP)

Fazal Elahi for Petitioner. Karam Elahf Chuhah for Respondent

1. Kamal Mustafa Bokhari for Respondent

2. Mazhar‑ul‑Haq for Advocate General for Respondent

3. Date of hearing : 6th January, 1961. S. A. MAHMUD, J.‑To the Union Council No. 164, Mari Sahu, Tehsil Kabirwala, District Multan, twelve persons were elected as members and six were appointed. Sayyed Hassan Jahanian Shah Gardezi (respondent No. 1) and Muhammad Yusuf (respondent No. 2) are both appointed members, while Mehar Allah Yar petitioner is an elected member. On the 28th of February 1960, when election of Chairman was to be held, Muhammad Yusuf (respondent No. 2) was excluded from participation on the ground that he was not the same person who was gazetted as a member, as the name of his village mentioned in the gazette notification was Mari Sahu, but he belonged to village Sultanabad, which incidentally is also within the bound aries of the Union Council Mari Sahu. He not having been allowed to participate in the election of Chairman, Mehar Allah Yar petitioner and Sayyed Jehanian Shah Gerdezi were proposed and seconded as candidates for the Chairmanship of the Union Council. Mehar Allah Yar obtained ten votes and Sayyed Hassan Jehanian Shah Gardezi eight votes, with the result that the former was elected as Chairman. Against his election as Chairman, Muhammad Yusuf (respondent No. 2), filed an election petition, in which he pleaded that he wanted to stand for election as a Chairman, and that he had been wrongly excluded from participating in the election, and prayed that the election be set aside. The petition was accepted by the Collector, Multan, as Controlling Authority, and the election of Mehar Allah Yar petitioner was set aside by his order dated the 19th of July 1960. A fresh election was ordered to be held on the 3rd of August 1960. At the second election held on that day, Sayyed Jehanian Shah Gardezi (respondent No. 1) and Mehar Allah Yar petitioner again contested the election, and this time the former was elected defeating the petitioner by ten votes to eight. The petitioner has filed an election petition challenging the validity of the second election, with which this Court is not concerned. He has also filed this writ petition in this Court, whereby he challenged the validity of the order of the Controlling Authority, setting aside his election as Chairman. He has prayed that by a writ of certiorari the order of Collector, Multan dated the 19th of July 1960, be quashed and all subsequent proceedings taken and the election held on the 3rd of August, 1960 be set aside. It is also prayed that a writ of mandamus be issued declaring as valid the petitioner's election as Chairman of the Union Council held on the 28th of February 1960, with a consequential order to restrain the respondents from interfering with his assumption of office as Chairman of the Union Council. A prayer is also made for issue of a writ quo warranto calling upon respondent No. 1 to show by what authority he purported to act as a member and Chairman of the Union Council. This writ petition is contested on behalf of the respondents.

2. The Collector, Multan, as the Controlling Authority in his order dated the 19th of July 1960 came to the conclusion that there was little doubt that Muhammad Yusuf (respondent No. 2) notwithstanding the mistake about the name of the in the relevant rules or the Basic Democracies Order, 1959, but it is hardly open to question that no reason could be deemed to be sufficient unless it is such as would be accepted by a reasonable person to be of such importance or such weight as to justify the declaration that the election was void. It is clear that every breach of a rule at the election of the Chairman to a Basic Democracy would be an irregularity and it can be safely presumed that when the rule‑making authority said that there should have been a material irregularity before election of a Chairman could be avoided, it must have had some purpose in qualifying the noun "irregularity" by the adjective "material". * * * * * * The fact that the word "material" occurs before the word `irregularity' in sub rule (2) of rule 7 of the West Pakistan Basic Democracies. (Election of Chairman) Rules, 1960, allows the Court to draw the inference that the expression `material irregularity' was not the same thing as an irregularity, pure and simple. It is well known that no system of jurisprudence attaches much importance to irregularities which have not affected the decision one way or the other and I do not see why ;;~ :>; :~ of the qualification of the word `irregularity' by the word `material' it should be inferred that the r ~.ilc‑inal,,'iig authority intended that a breach of a rule, even though such breach had not affected the result of the election, was to be treated as a material irregularity for the purposes of rule 7 (2) of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. * * * * * * I would, therefore, held that the term `material irregularity" mentioned in sub‑rule (?) of rule 7 of the West Pakistan Basic Democracies (Election, Chairman) Rules, 1960, means an irregularity which had ‑;ted the result of the election and not an .irregularity which, ":sough it may have been a breach of the rules, had not affected the result of the election one way or the other." With the above observations I fully concur, and if the election of a chairman is to be declared void by the Controlling Authority on the ground of material irregularity, the authority .rust be satisfied that the irregularity committed had affected the result of the election one way or the other. But material irregularity is not the only ground on which election of a chairman can be annulled. It may be declared void for sufficient reason, which need not necessarily have affected the result of the election, but it should be a reason which is acceptable to a reasonable pcr;orl as of sufficient importance and weight to justify annulment of the election. If some important or 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 material question that falls for determination is whether the order of the Collector, as Controlling Authority, dated 19th July 1960, setting aside the election of the petitioner as chairman suffers from an error apparent on the face of the record, or has been made in excess of or contrary to rule 7 (2) of the Rules. In this context it is necessary to examine the reason recorded by the Controlling Authority for setting aside the election of the petitioner as chairman.

6. The Collector as Controlling Authority has found as stated already that Muhammad Yusuf, the petitioner before him, was the person who had been appointed and whose name had been gazetted and that the mention of village Mari Shahu as his residence in the gazette was only a clerical mistake and that there was no doubt that it was he who had been appointed as a member of the council. This matter is not now in dispute and no argument has been addressed to challenge the finding of the Controlling Authority on this point. The Authority further held that Muhammad Yusuf was excluded from the proceedings before names for election as chairman were proposed and‑ that the presence of Muhammad Yusuf as a candidate might materially have affected the result of the election, repelling the contention based on the affidavits of ten members that they in case of re‑election would still support the respondent. The Collector stated that he was not impressed by the contention because a member was free to change his mind in the next election and was not bound by his affidavit. Having held that he was satisfied that Muhammad Yusuf had been wrongly excluded from participation in the election, he came to the conclusion that it was not inconceivable that his participation in the meeting and his candidature for chairmanship might lead to a change in the fortunes of the candidates. The wrong exclusion of Muhammad Yusuf from participating in the election, when he wanted to contest the election of chairman held on 28th February 1960 is undoubted a serious irregularity which is sufficient reason for the setting aside of the election. As the Collector has not held that the result of the election was actually affected, it is argued by learned counsel for the petitioner that Muhammad Yusuf's exclusion does not amount to a material irregularity and the election could not have been declared void. In the absence of his participation in the voting it could not be definitely said how many members would have supported him and how many would have supported the other candidates, and whether he would have been successful. Thus a clear case of material irregularity as having affected the result is not made out. The' whole case of the petitioner is founded on the contention that the election of a chairman can only be set aside on ground of a material irregularity in the conduct of the elections, i.e. an irregularity which bad affected the result, and, not otherwise. He argues that `sufficient reason' also means an irregularity which is material in the sense that it has affected the result. The learned counsel ignores that rule 7 (2) of the rules provides that election of a chairman may be declared void fort a material irregularity or for a sufficient reason recorded in writing, and both the terms have not been used synonymously. It was not necessary to use the words or any sufficient reason to be recorded' if it was intended that material irregularity alone was to vitiate the election. It seems to me that the words `or any sufficient reason to be recorded have been deliberately used to widen the scope of the rule and the power of the Controlling Authority to invalidate election of a chairman. The distinction to be drawn between material irregularity and sufficient reason may in some cases be difficult to draw, but there can be no doubt in this case that the exclusion of Muhammad Yusuf from the proceedings when he wanted to stand for election as chairman was sufficient for the Controlling Authority as a reasonable person to set aside the election. That it is sufficient cause admits of no doubt because that case is not one merely of exclusion of a member who wanted only to vote for one candidate or the other. If a member, who has to cast his vote, has been excluded, and if his vote, even if counted in favour of the unsuccessful party would not have materially affected the result of the election, it may neither be a material irregularity nor sufficient cause for setting aside the election. But supposing a large number of the members had not been informed of the day and hour of the election of chairman or of the holding of the meeting, or a ‑large number of persons had been excluded from voting, it may well be deemed to be a sufficient cause for setting aside the election of a chairman irrespective of proof that the result has been affected. 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 reasonable cause is not purely subjective but is objective he is required to record his reason, and the reason ableness 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 reasonable. Acting on this principle iti cannot be held in this case that the Collector acted without reasonable cause in setting aside the election of the petitioner. In fact, I am of opinion that there was good and ample cause for setting aside of the election, because Muhammad Yusuf was excluded from contesting the election of chairman., and this 'was a material and fundamental defect in the election of chairman, held on 28th February 1960.

7. Learned counsel for the petitioner also argues that Muhammad Yusuf never intended to stand as a candidate because in the second election he did not stand. It has been accepted by the Controlling Authority that he had intended to stand for election as a chairman, and there is no reason to differ from him. Whether he would have been successful or not remains a matter of conjecture and no definite conclusion could be drawn. There is no doubt however that his participation might have affected the fortunes of the candidate and the result of the election. In his absence, if ten persons voted for Mehr Allahyar petitioner, it cannot be said that they would have voted for him, if he had not been excluded and had contested the election. His not contesting the second election is not material. The sufficient reason for invalidating the election must have reference to the date of the election and not to what may transpire when the re‑election is to be held. Muhammad Yusuf may have had al good chance of being elected in the first election, but the situation might have changed to his detriment in the second election and he may have withdrawn from the contest realising that his chance to be elected in the subsequent election was not good. Thus I find no force in the argument that the exclusion of Muhammad Yusuf from the first election was of no consequence, because Muhammad Yusuf did not contest the second election. If Muhammad Yusuf had stood for election and had become successful, could it still have been argued by the learned counsel for the petitioner that the exclusion of Muhammad Yusuf was of no consequence and neither a sufficient cause nor a material irregularity for setting aside of the first election? For that matter, even if Muhammad Yusuf had contested the second election and had lost, could it be said conclusively that he could not have won at the first election or that the voting for the candidates would not have been different and that there was no sufficient cause before the Controlling Authority for setting aside the election. If the Controlling Authority had decided to set aside the election on ground of exclusion of Muhammad Yusuf, when he wanted to contest the election of chairman. For the same reason the production of affidavits of .the ten members before the Controlling Authority that they intended to vote at a re‑election for Mehr Allahyar was immaterial and was rightly . ignored by the Collector. His remark that he would attach no importance to the affidavits because each member was free to change his mind and was not bound by the affidavit turned out to be correct, because at the second election, only eight members voted for Mehr Allahyar petitioner instead of ten, and he was defeated. The undoubted position in this case is that Muhammad Yusuf, who was a duly appointed member, was excluded from participating. in the election of chairman when he wanted to contest the election, and that the Controlling Authority has held that his participation may well have materially affected the result of the election i.e. the fortunes of the candidates. It cannot be held that the reason given by the Controlling Authority for declaring the election as void is not sufficient cause or reason within sub‑rule (2) of rule 7 of the Rules, and that no reason able person could have deemed it a ‑ sufficient cause for this purpose. I do not find any error apparent on the face of the record or an illegality in the order of the Collector as Controlling Authority. He has acted within the scope of rule 7 (2) of the Rules. There is, therefore, no case for quashing the order of the Collector.

8. Consequently the writ petition is 'dismissed, but in the Circumstances of the case, I make no order as to costs.

9. I should like to make it clear that the above observation in this case should not be taken as an expression of opinion about any matter connected with the second election which is the subject of election petition which is pending before the appropriate Controlling Authority. SHABIR AHMAD, J.‑I agree and have nothing to add to the exhaustive judgment of my learned brother. A. H. Petition dismissed.