P L D 1962 (W (PLP)

SHABIR AHMAD, J.-The main questions that arise in this writ petition and Writ Petition No. 386 of 1960 are identical and therefore, this order will govern Writ Petition No. 386 of 1960 as well.

2. Each of the petitions seeks a writ which would make ineffective the order passed by Mr. J. F. Elahi, P. C. S., in his capacity of an Election Tribunal, appointed under the provisions of the West Pakistan Basic Democracies Election Rules, 1959, which appeared in an extraordinary issue of the West Pakistan Government Gazette on the 13th of November 1959, as Notification No. PEA-59/940-Ek on being made by the Governor of the Province of West Pakistan 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 (President's Order No. 18 of 1959), read with Entry No. 1 of the Sixth Schedule thereto. The petitioner In each case had sought election to a basic democracy and on having been declared unsuccessful presented an election petition. In each of the two cases, one of the persons who had originally put in his nomination papers did not furnish a box for polling his votes therein. In the election petition put in by each of the petitioners that one out of his rival contestants who had not furnished a box for depositing his votes therein was not impleaded as one of the parties. Mr. J. F. Elahi, the Election Tribunal, dismissed both the election petitions on the ground that one of the necessary parties had not been impeded, the order attacked in Writ Petition No. 289 of 1960 having been passed on the 9th of March 1960 and that attacked by means of Writ Petition No. 386 of 1960 on the 8th of April of that year.

3. The order of rejection passed by the Election Tribunal was based on rule 55 of the West Pakistan Basic Democracies Election Rules, 1959 the first three of the ten clauses of which rule read as under "(1) No election shall be called in question except by an election petition presented in accordance with these rules. (2) An election petition shall be presented within thirty days next after the declaration of result under rule 48. (3) Where a petitioner has been a contesting candidate, he shall join as respondent to his petition all the other contesting candidates, and a copy of the election petition shall be served upon each respondent." Mr. J. F. Elahi found that one of the rivals of each of the petitioners in the writ petitions, who had not supplied a ballot-box, did not cease to be a contesting candidate for the purposes of clause (3) of rule 55 which has been reproduced above, and that as joining of each contesting candidates as a party in an election petition was absolutely necessary, the election petition could not proceed. In coming to this conclusion, Mr. J. F. Elahi sought support from the definition of the expression "contesting candidate" which occurs in clause (5) of rule 2 of the West Pakistan Basic Democracies Election Rules, 1959, which reads as under: - " `Contesting candidate' means a candidate who has been validly nominated, and has not withdrawn his candidature."

4. Before taking up the question whether or not the finding of Mr. J. F. Elahi was correct, and if it was incorrect, whether or not a writ can issue, I would deal with the contention raised by Raja Said Akbar, Advocate, who appeared for the contesting respondent in Writ Petition No. 386 of 1960, to the effect that no writ could issue even if the order of Mr. J. F. Elahi was incorrect. The contention was that as no right to lodge appeal or a petition for revision had been given against an order passed by an Election Tribunal, the order was Intended to be final and could not be made ineffective by any means. The West Pakistan Basic Democracies Election Rules, the 55th rule of which provides for an election petition, do not make any provision for questioning the order of an Election Tribunal and, therefore, Raja Said Akbar, Advocate, was right in saying that ordinarily the order would be final. That, however, does not mean that an order passed by an Election Tribunal whatever the defects it suffers from, is immune from scrutiny by a Court competent to Issue a writ of mandamus or a writ of certiorari. An appellate or a revisional authority has a right to go into the merits of the questions which may be agitated before it, but the powers of a Court which can' issue a writ of mandamus or certiorari extend to seeing whether the Tribunal whose order is attacked by means of a writ petition has acted in a manner in which it could not have acted or has refused to act in one in which it could and should have acted, and to passing an appropriate order if the Court comes to the conclusion that one of the two above-mentioned defects exists in the order of the Tribunal of exclusive jurisdiction.

5. Raja Said Akbar contended that as the Election Tribunal was competent to determine all questions of law that fell for determination for the disposal of an election petition, its order on any question of law could be considered to be with jurisdiction and therefore, no question of issue of a writ against such an order could arise. It appears to me that this contention is worded much too broadly. The way I look at the matter is that if by giving a wrong decision on a question of law, a Tribunal of special jurisdiction has arrived at a conclusion that it had no jurisdiction in the matter in which it actually had jurisdiction or has arrived at the conclusion that It has jurisdiction in a matter in which it had none, occasion for exercise of writ jurisdiction by a Court possessing that jurisdiction arises. Raja Said Akbar would not in the beginning accept this view of the law which I put to him but did concede in the end that if the decision on the question of law had resulted in the exercise of jurisdiction which did not exist or failure to exercise a jurisdiction which did, the decision of the Tribunal of exclusive jurisdiction would be perverse and this Court would be competent to Issue a writ. When I asked him to give a definition of the expression "perverse" which would dis tinguish it from the expression "wrong" Raja Said Akbar said that a decision was perverse if it was so completely wrong that no reasonable person or Tribunal could have arrived at it. I confess that I have never been able to understand the distinction between I the expression that a finding is wrong and the expression that it is perverse. But even if there be any distinction between these two expressions, I am clear in my mind that for the purposes of determination of the rights of parties in a case, these two expressions lead to the same result. If a Tribunal, which is competent to consider the correctness or otherwise of a finding given by another Tribunal, comes to the conclusion that the decision is wrong, it can pass an order that would correct that decision and the Tribunal that can correct the decision of another Tribunal can do no more even if it come to the conclusion that the finding was perverse, assuming that a perverse finding is different from a wrong finding. I am not denying that for the purposes of considering whether or not a wrong order was passed in good faith, a distinction can be drawn between an order which is wrong and one which is perverse, the latter being one which is so patently wrong that no Tribunal worth the name could have considered it justified, but with all respect to the learned Judges who may have used the expression "perverse" in their pronounce ments, dealing with the rights of parties in the case, I venture to say that as far as the jurisdiction to interfere with an order is concerned, an order which is wrong suffers from the same infirmity as an order which some call "perverse". I would, therefore, repel the contention of Raja Said Akbar, Advocate, that even though the order of the Election Tribunal may have been wrong and because of its error the Tribunal may have failed to exercise a jurisdiction which vested in it by law, this Court will be incompetent to issue a writ unless it come to the conclusion that the order which was wrong also suffered from the defect that It was perverse.

6. I will now take up the question whether or not the order of the Election Tribunal was wrong. As I have already said, support for the order was sought from the definition of the expression "contesting candidate" which occurs in clause (5) of rule 2 of the West Pakistan Basic Democracies Election Rules, 1959. Like the other clauses of rule 2, clause (5) Is subject to the qualification indicated in the opening sentence of the rule to the effect that the definitions given are not to apply if there is any thing to indicate to the contrary In the subject or context of the provision under consideration. It follows, therefore, that if there is anything in any provision of the West Pakistan Basic Demo cracies Election Rules, 1959, to indicate that the expression "Contesting candidate" is not to have the meaning given in clause (5) of rule 2 of the Rules, the definition given in rule 2 (5) will have no application for the purposes of that particular provision.

7. For the purposes of the present question one may profitably refer to rule 27 of the West Pakistan Basic Democracies Election Rules, 1959, the last sentence of the fourth clause of which rule reads as under: - "If a candidate fails to supply the requisite number of ballot- boxes, he shall be deemed to have retired from the election contest." Can it be doubted that if a person has retired from an election contest, he is not to be considered a contesting candidate ? It is only those persons who will not supply ballot-boxes who have decided not to contest the election In spite of the fact that they had put in their nomination papers and had not withdrawn then within the time prescribed by the rules for withdrawal of the candidatures. A person who by reason of sub-rule (4) of rule 27 of the West Pakistan Basic Democracies Election Rules, 1959, is to be deemed to have retired from an election may by reason of the fact that he is an elector, be competent to lodge an election petition but that does not mean that it is necessary that he should be deemed to be a contesting candidate for the purposes of sub-F rule (3) of rule 55 of the West Pakistan Basic Democracies Election Rules, 1959, which sub-rule has been reproduced in paragraph 3 above. I would, therefore, hold that the view of the) law taken by Mr. J. F. Elahi as Election Tribunal in both of the cases under consideration was unsustainable.

8. Having arrived at the conclusion that the Election Tribunal had wrongly held that even if a candidate did not supply a ballot-box, he could be deemed to be a "contesting candidate", I proceed to consider the question whether a writ should issue. The result of the wrong decision of Mr. J. F. Elahi was that each of the election petitions was not considered on merits, in other words, an erroneous decision had resulted in non-exercise of jurisdiction which vested in the Election Tribunal. That being the case, conditions necessary for issue of a writ exist and I would, therefore, accept each of the two writ petitions and declare that each of the two election petitions was dismissed on an entirely unsustainable ground. The result of this writ would be that the election petitions presented by each of the petitioners will have to be dealt with on merits by the Election Tribunal. It is clear that the impugned order in each case was passed at the instance of the person who is the contesting respon dent in the resultant writ petition and I would, therefore, direct that each of the petitioners in the two writ petitions shall have his costs from the contesting respondents. In order that there should be no mistake with regard to the respondent who has been burd ened with costs, I would add that in Writ Petition No. 289 of 1960 the costs shall be payable by Karam Elahi, who is respon dent No. 3 in the petition, and in Writ Petition No. 386 of 1960 by Nur Zaman who is respondent No. 2 in that petition. NAZEER AHMAD MAHMOOD, J.-I agree. K. B. A. Petition accepted.