P L D 1967 Lahore 689 (PLP)

This writ petition under Article 98 of the Constitution calls in question the legality of the order of Mr. M. A. Nasir, P. C. S., Additional Deputy Commissioner (G) dated 9th May 1965, passed in his capacity as Returning Officer of Constituency No. P. W. 76, Lahore 1, during the last elections to the Provincial Assembly held on 16th May 1965, whereby Mian Mehraj‑ud‑Din, respondent No. 1, was declared as elected unopposed under section 20 of the National Assembly (Election) Act, IX of 1965, as a result of the retirement of other candidates.

2. The facts giving rise to the case are that nine persons including respondent No. 1 and Haji Muhammad Afzal, petitioner No. 1, filed nomination papers for election to the Provincial Assembly from Constituency No. P. W. 76, Lahore‑1, on 10th April 1965. According to the schedule of election, as published under the rules, scrutiny of nomination papers was to be held on 11th April 1965, the last date for withdrawal of candidature was 19th April 1965, and the poll was to take place on 16th May 1965. Under section 17 of the National and Provincial Assemblies (Election) Act, 1964 (hereinafter called the Act), a candidate could retire from the election even after the expiry of the date of withdrawal, but not later than 7 days before the polling day. Haji Muhammad Afzal petitioner No. 1 and one Mian Taj Din withdrew from the election leaving . seven persons in the field. Jillani G. Simlawala, Abdul Qayyum and Taoos Khan respondents 3 to 5, respectively, applied to the Returning Officer, respondent No. 2, for retirement the date of application of Mr. Jillani being 8th May 1965, and that of the other two 9th May 1965. It appears from a perusal of the relevant order of the Returning Officer that all the three notices of retirement were presented before him on 9th May 1965, which were published on the same day and as such, these three gentlemen ceased to be contesting candidates in terms of subsection (4) of section 17 of the Act. Out of the nine candidates, (including respondent No. 1) after the withdrawal of Mian Taj Din and Haji Muhammad Afzal petitioner No. 1 and the three retirements mentioned above, there should have been left three more candidates in the field besides respondent No.

1. Surprisingly enough, a reference to the retirement of Akbar Ali, Zafar Ahmad and Matlubur Rehman candidates is simply conspicuous by its absence in the petition. However, from the concluding line of the impugned order (Annexure B') whereby the Returning Officer declared Mian Mehraj Din respondent No. 1 as elected unopposed, it could be inferred that these three candidates had also retired.

3. The only ground on which the legality of the impugned order has been challenged by the petitioners who all claim to be electors of the constituency, and of whom petitioner No. 1 also filed his nomination papers, which were subsequently withdrawn under section 16 of the Act, is that the last date for retirement from the election was 8th May 1965, and that the Returning Officer having misinterpreted section 17 (1) of the Act, had wrongly allowed the retirement of respondents 3 to 5 who still remained in the field as contesting candidates and as such, this being not a case of uncontested election, respondent No. 1 should not have been declared elected to the seat unopposed.

4. From a perusal of the notices of retirement and the impugned order, it is clear that the notices of retirement in respect of respondents 3 to 5 were presented before the Returning Officer on 9th May 1965, and the impugned order was also passed on the same day. Although, the date of application for retirement in the case of Jillani G. Simlawala respondent No. 3 is 8th May 1965, that would not be material inasmuch as the relevant date for the counting of limitation would be the date of delivery and not the date of application, and it is clear from the order of the Returning Officer (Annexure `C') that the application was presented before him on 9th May 1965. But even otherwise assuming that Mr. Jillani had given a timely notice of withdrawal, it would make no difference at ail for the reason, that once this Court takes the view that the last date for the delivery of notices of retirement was 8th May 1965, in that event notwithstanding the retirement of Mr. Jillani there would still be left two other candidates in the field besides respondent No. 1, who could not be declared returned in an uncontested election.

5. Having considered the arguments of the learned counsel for the petitioners that under section 17 of the Act, the last date for retirement from an election in which polling was scheduled to be held on 16th May 1965, was 8th May and not 9th May 1965, we have no hesitation in readily agreeing with his computation of limitation. The only interpretation of which the phrase "any day not later than seven days before, the polling day" is susceptible is, that seven clear days should intervene the date of retirement and the date of the poll, i.e. 16th May 1965. The retirement of respondents 3 to 5 on 9th May 1955, was obviously on the 7th day before the poll and, therefore such a retirement was hit by section 17 (1) of the Act according to which the last date for retirement, leaving seven clear days before the poll, would be 8th May 1965. Although, in support of his contention the learned counsel for the petitioners has drawn our attention to A I R 1957 Raj. 388 and A I R 1945 Bom. 315, one need hardly quote any authorities in support of a much too obvious proposition like this. Maxwell has also dealt with the interpreta tion of similar phrases under heading "Computation of Time" at pages 339‑340 of "Interpretation of Statutes, 1962 Edition" which leads to the same inference. The seven days before the poll as envisaged by section 1.7 (1) of the Act, are 9th May to 15th May 1965, and if one of the terminal days were excluded, the retirement of the respondent would be obviously beyond limitation by one day.

6. Although, we have unhesitatingly upheld the contention of the learned counsel on the point of limitation, the matter does not end here. The petition has some formidable hurdles to cross before it qualifies for admission. In the first instance, it seeks to call in question an order of the Returning Officer dated 19th May 1965, i.e. more than sixteen months after it was passed, and on ground of laches alone this petition merits dismissal, there being no good reason for the condonation of delay. The learned counsel is confronted with yet another more serious legal objection.

7. The constitutional provision dealing with disputed elections occur in Article 1.71 of the Constitution, and is reproduced below :‑ Article 171.‑(1) Subject to clause (2) of this Article, provision may be made by law‑ (a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission; and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law. (2) When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever. (3) The validity of anything done by the Commissioner under Article 160, 161 or 162 shall not be called in question in any manner before or by any Court or authority whatsoever. From the plain reading of the provision it is quite clear that the validity of an election or the determination of an election dispute, not relating to counting of votes, can be questioned in no other manner except in accordance with law before a tribunal, which in the instant case is the National and Provincial Assemblies (Election) Act, 1964. Section 52 of the Act reads as follows :‑ "Section 52.‑Election not to be questioned except by election petition or appeal.‑ (1) Save as provided in section 53, no election shall be called in question except by an election petition under section 57. (2) No question that can be raised in an appeal under section 53 shall be raised by an election petition or before any Court or Authority whatsoever, nor shall any question that can be raised by an election petition be raised before any such Court or authority." There can be hardly any doubt as to the mandatory nature of the above provision which itself is based on the constitutional provision of Article 171 (1). Section 57 of the Act relates to election petitions to be filed by "any candidate" on one or more of the grounds mentioned in section

72. Part `A' of subsection (3) of section 72 reads thus :‑ "Section 72 (3) (a)‑The tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with the provisions of the Constitution or this Act and the rules." Strangely enough, without having recourse to the constitutional remedy of seeking the determination of the election dispute from the tribunal, the learned counsel for the petitioners, while trying to argue that it was a case of failure on the part of the Returning Officer to comply with the provision of the Act, pressed into service the same provision, conveniently forgetting that he had a remedy before the election tribunal which alone could, and if approached in time presumably should have granted the relief asked for. Then again under part (B) of clause (1) of Article 171, finality attaches to the determination of such a dispute by the tribunal. The scope of finality, the competency of a writ to challenge this, and the grounds on which it could be challenged, have been fully discussed by their Lordship of the Supreme Court in Jamal Shah's case, and need not be reproduced. In this celebrated pronouncement their Lordships have also discussed the scope of Article 98 of the Constitution vis‑a‑vis Article

171. The provisions of the former are subject to other provisions of the Constitution and as such cannot override those of the latter whose scope is not restricted by any such limitations, and consequently it should prevail over the former. All these questions have been fully discussed in the aforesaid authority in the light of which we are quite clear in our mind that the petitioners cannot directly invoke the writ jurisdiction of this Court without having unsuccessfully approached the election tribunal in the first instance.

8. Before parting with the case, we would also like to dispose of the two other points raised by the learned counsel for the petitioners. It was contended that the constitutional provisions of Article 171 and the relevant provisions of the National and Provincial Assemblies (Election) Act, 1964, relating to election disputes, particularly, those mentioned in sections 52, 53, 57 and 72, were not applicable to the instant case, inasmuch as they are all relatable to an election whereas in the instant case no election in fact took place, and since respondent No. 1 was elected unopposed without an actual poll being held, it was not a case of an election being called in question. In the alternative, it was argued that under section 57 of the Act only a candidate could challenge an election by making an election petition under section 58, who shall join as respondents all contesting candidates as also any other candidate against whom allegations, if any, of any corrupt or illegal practice are made. Since the illegal act of the Returning Officer, declaring respondent No. 1 as elected unopposed, had the effect of disfranchisement of the entire body of electors in the constituency, having denied them the exercise of their valuable right of franchies for which no remedy was provided under the Act, they could invoke the equitable writ r jurisdiction of this Court for the redress of their grievance.

9. The first contention is patently misconceived and should be straightaway dismissed. The learned counsel for the petitioners was obviously labouring under a misapprehension in urging that the word "election" was synonymously used for "poll" and that there could be no election without an actual poll being held. It is well settled that election is a continuous process consisting of a series of facts required to be done in different stages in accordance with the schedule contained in the notification to be published in the official Gazette fixing dates for filing of nomination papers scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of result, etc. It would thus be obviously wrong to say that the word "election" was synonymously used for "poll", and that since there was no poll in the instant case, there was no remedy provided under law to the aggrieved persons. In the earlier part of this judgment reference has already been made to section 72 (3) (a) of the Act which casts a legal obligation on the tribunal to declare an election as a whole to be void if it is satisfied that the result of the election is materially affected by reason of the failure of any person which also includes a Returning Officer, to comply with the provisions of this Act and the Rules. The petitioners' case was covered by this provision, and the election could be challenged on this ground.

10. The next contention is equally devoid of substance and could be overruled on the short ground that petitioner No. 1 being himself a candidate was competent to challenge the election before the tribunal, which he failed to do. The Act was framed in pursuance of the constitutional provisions contained in Article 171 of the Constitution which like the Electoral College Act gives a right to challenge the election only to a candidate and not to the electors of the constituency. The rationale of the provision seems to be that since as a result of the illegal act of the Returning Officer denying a candidate his legitimate and valuable right of trying his luck and testing his popularity and influence so as to credit him with the right of public representation, such a candidate would feel more aggrieved than any one of the electors. If there is only one validity nominated candidate in the field, there being not a single rival candidate, obviously that is a sure test of his popularity and influence in the constituency. If, however, the nomination papers of a rival candidate have been illegally rejected he has been given the right of appeal. In respect of a dispute in counting of votes an appeal lies to the Commissioner under section 53 of the Act. All other disputes are to be decided by the Tribunal including the type of the dispute under examination. In this case, Haji Muhammad Afzal petitioner No. 1 was himself a candidate but chose to withdraw from the contest and, although he was never a contesting candidate yet a remedy to challenge the election was open to him under the Act which he never cared to avail. As regards petitioners 2 to 13, who claimed to be electors in the constituency, even if it is assumed without conceding that the Act provides no remedy for the redress of their so‑called grievance of disfranchisement, and the equitable remedy of judicial review should be available to them, their case merits dismissal on the ground of laches alone inasmuch as they have come to this Court after a period of more than 16 months.

11. When this judgment was ready for announcement Mr. Kirmani, drew our attention to a recent authority Allah Ditta v. Muhammad Munir and others (P L D 1966 Lah. 770) published in the October issue of the P. L. D. in order to show that a writ under Article 98 of the Constitution would be competent even without having recourse to the remedy provided under section 58 of the Electoral College Act of 1964, to challenge the election of the returned candidate. After having considered this authority, we are definitely of the view that it is not helpful to the petitioner inasmuch as, the position in the two cases is quite distinguishable. In the precedent case the respondent was admittedly below 25 years of age at the time of the election and as such in view of Article 158 (1) of the Constitution was not qualified to contest the election. His nomination papers were accepted despite the petitioner's objection on that ground. Since the respondent suffered from an inherent disqualification and the acceptance of his nomination papers was clearly in violation of the provision of the Constitution to which Article 98 has been made subject, this Court was justified in directly entertaining and accepting the petition. On the contrary, the aforesaid authority could not be invoked in the circumstances of the instant case which stands on a wholly different footing.

12. For the foregoing reasons, we see no merit in this petition which is dismissed in limine. K. M. A. Petition rejected.