P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑This petition by Mir Ata Muhammad under Article 170 of the Constitution has been filed under the following circumstances. The petitioner was declared to have been elected as a member of the Gujranwala Municipal Com mittee from Ward No. 22 in the municipal elections held in October 1954. He secured 441 valid votes while Sheikh Ashiq Hussain, respondent No. 1, got 436 valid votes. The latter challenged the electron of the petitioner by an election petition acid Mian Muhammad Salim, Senior Civil Judge, Gujranwala, respondent No. 3, was appointed Election Commissioner for the disposal of this petition. After holding an inquiry, the Commission submitted its report, dated the 5th of November 1956, to the Commissioner, Lahore Division, respondent No. 2, with a recommendation that the election of the petitioner as a member of the Municipal Committee be declared as void. The Commissioner, vide Notification No. A/11/6/16, dated the 15th of January 1957 published in the Gazette of West Pakistan dated the 18th of January 1957, declared Sheikh Ashiq Husain respondent as elected member of the Municipal Committee, Gujranwala, in place of the petitioner. The petitioner has challenged the validity of this order inter alia_on the following grounds :‑ (a) That under section 255 of the Punjab Municipal Act, the Commissioner was not empowered to declare a defeated candidate as a member of the Municipal Committee. (b) That the proviso to rule 68 of the Municipal Election Rules, 1952, which empowers the Government of the Com missioner in certain cases to declare unsuccessful candidates as having been elected is ultra vires. (c) That in any case the proviso to rule 68 of the Munici pal Election Rules is inapplicable to the case of Sheikh Ashiq Hussain respondent. Section 255 of the Punjab Municipal Act is in the follow ing terms :‑ "On receiving the report of the Commission the Provincial Government in the case of an election held in a municipality of the first class, and the Commissioner in any other case, shall pass orders either declaring the candidate duly elected or declaring the election to be void, and such orders shall be notified in the Official Gazette. Such orders shall be final and shall specify the amount of costs to be paid, and the person or persons by whom and to whom such costs shall be paid: Provided that the Commissioner or the Provincial Govern ment before passing final orders may remand any case for further inquiry or refer any point arising in any case to a Civil Court for opinion ; and the Civil Court shall deal with any case forwarded to it as nearly as may be according to the procedure applicable under the Code of Civil Procedure, 1908, to the hearing of appeals." It will be seen that the Provincial Government or the Com missioner, as the case may be, is empowered either to declare the candidate duly elected or to declare the election to be void. These are the only two alternatives which can be adopted by the authority concerned. Learned counsel. for the petitioner has maintained that the candidate referred to above is the returned candidate whose, election has been challenged. Mr. S. A. Mahmud, Assistant Advocate‑General, who appeared on behalf of the Commissioner, has, however, contended that there is no reason why such a narrow interpretation should be placed on these words. If the Legislature had intended the returned candidate or the successful candidate then some such word as returned or successful could have been added to the words "the candidate". According to him the candidate means the candidate who has been defeated and has challenged the election. After carefully considering this question, we have arrived at the conclusion that the words "the candidate" used in section 255 of the Punjab Municipal Act, refer to the, person whose election has been challenged. If these words refer to a defeated candidate and he can be declared as duly elected then the second alternative provided by the section would be inoperative and Consequently the election of the successful candidate would remain intact and would not be declared void. But could it have been the intention of the Legislature to declare the defeated candidate as elected without avoiding the election of returned candidate? For obvious reasons the answer to this question must be in the negative. Besides, the rule‑making power under the Punjab Municipal Act does not contemplate the making of any such rules whereby a defeated candidate could be declared as elected. Clause (g) of sub section (1) of section 240 of the Punjab Municipal Act pro vides for the making of the rules regulating the procedure for elections under the Act and subsection (2) lays down :‑ "Rules under clause (g) of subsection (1) may among other matters provide‑ (i) for the definition of the practices at elections held under the provision of this Act which are to be deemed to be corrupt ; (ii) for the investigation of allegations of corrupt practices ; (iii) for making void the election of any person proved to the satisfaction of the Provincial Government in the case of a municipality‑ of the first class, or of the Commissioner in the case of a municipality of the second class, to have been guilty of a corrupt practice or to have connived at or abetted the commission of a corrupt practice or whose agent has been so proved guilty, or the result of whose election has been materially affected by the breach of any law or rule for the time being in force ; . . . . . . . . . . . . . . . . . . . . . . It is, therefore, clear that no such power is given under the Act whereby a defeated candidate could be declared as elected. Rule 63 of the Punjab Municipal Election Rules also makes it clear that the candidate in section 255 of the Punjab Municipal Act refers to the returned candidate. It provides as follows :‑ "At the conclusion of the inquiry the Commission shall report whether the returned candidate has in its opinion been duly elected, and in so reporting shall have regard to the provisions of rule 62." It may be mentioned here in passing that a power is given to declare a defeated candidate as elected in respect of the legislative assemblies by section 8 of Part III of the Govern ment of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, which runs as follows :‑ "(1) At the conclusion of the inquiry the Commissioners shall report whether the returned candidate, or any person wh1p has lodged a petition and claimed a seat, has been duly elected and in so reporting shall have regard to the provi sions of the last preceding paragraph. . . . . . . . . . . . . . . . . . . . . . . (3) The report shall be signed by all the Commissioners and the Commissioners shall forthwith forward their report to the Governor, who on receipt thereof shall issue orders in accordance with the report and publish the report in the Government Gazette of the Province, and the orders of the Governor shall be final." If the Legislature had intended to give such a power under the Punjab Municipal Act a similar provision could have been added to the provisions of this Act. For the aforesaid reasons we hold that the Commissioner was not empowered under section 255 of the Punjab Municipal Act to declare a defeated candidate as a member of the Municipal Committee. In order to appreciate the second point it seems necessary to reproduce rule 68 of the Municipal Election Rules, 1952. It runs as follows :‑ "When as a result of any enquiry under these rules the election of a candidate is declared void, the commission or the Punjab Government, as the case may be, shall direct that a new election shall be, held ; Provided that if the Commission has found that there has been a mistake in the counting of votes or in the declaration of invalid votes and that but for that mistake some other candidate would have been declared successful, the Commis sion or the Punjab Government, as the case may be, may, instead of directing that a new election shall be held, declare that the candidate found to have obtained the largest number of votes shall be deemed to have been elected." The question that falls for determination is whether the proviso which empowers the Government or the Commissioner in certain cases to declare an unsuccessful candidate as having been duly elected is ultra vires of the Act. We have already noticed above that the Punjab Municipal Act does not con template the making of any rule whereby a defeated candidate could be declared as elected. As provided by subsection (1) of section 240 of the Municipal Act, the Provincial Government is authorised to make rules consistent with the Act and subsection (2) of this section enumerates certain matters in respect of which the Government can make rules regulating the procedure for elections under the Act. This section nowhere provides for the making of any rule for declaring a defeated candidate as elected. We have already held that section 255 of the Punjab Municipal Act does not refer to a defeated candidate. Consistently with that finding we should hold that the Government could not have incorporated the proviso in rule 68 of the Punjab Municipal Election Rules. But even if the proviso to rule 68 were infra vires, the case of Sheikh Ashiq Hussain respondent is not covered by it. The proviso is applicable only where there is a mistake in the counting of votes or there is a mistake in the declaration of invalid votes. In the instant case it has been held by the Commission that instead of three genuine voters some other persons had cast their votes in favour of the petitioner and that the genuine voters in fact wanted to vote for Sheikh Ashiq Husain respondent. The votes of the genuine voters when they appeared for voting were accepted as "tendered votes" as provided by rule 34 of the Municipal Election Rules. This rule clearly lays down that such votes are not to be counted. A perusal of rule 40, sub‑clauses (2) and (3), and rule 41, sub‑clause (2), of the Municipal Election Rules makes it clear that a ballot paper not bearing the official mark, or if it bears any mark by which the voter can be identified, is to be treated as an invalid vote. The "tendered votes" are, there fore, not invalid votes and the proviso in its terms has, there fore, no application and as such the defeated candidate could not have been declared by the Commissioner as elected. In view of the above discussion we hold that the order passed by the Commissioner whereby Sheikh Ashiq Husain was declared elected as a member of the Municipal Committee, Guiranwala, was without jurisdiction and is a nullity in the eye of law. Learned counsel for the petitioner has further contended that the recommendation of the Commission that the election of the petitioner be declared as void, should also be set aside. In our opinion this contention is without any substance. Rule 62 of the Municipal Election Rules requires that if in the opinion of the Commission there has been material irregularity, the Commission shall report that the election of the returned candidate shall be deemed to be void. Rule 50, clause (e), provides that "material irregularity" in the procedure of an election includes any such improper acceptance or refusal of any nomination or improper reception or refusal of a vote or reception of any vote which is void or‑ non‑compliance with the provisions of the Act or of the rules made thereunder, or mistake in the use of any form annexed thereto as materially affects the result of an election. We have no doubt in our minds that if instead of the three genuine voters some other persons had not cast their votes in favour of the petitioner and the genuine voters had cast their votes in favour of the respondent, it would have materially affected the result of the election. We, therefore, see no reason why the election of the petitioner should not be declared as void. In view of our finding that the Commissioner was not empowered under the law to declare Sheikh Ashiq Husain as an elected member of the Municipal Committee, Gujranwala, we quash the order of the Commissioner which was published in the Gazette of West Pakistan, dated the 18th of January 1957, vide Notification No. A/11/6/16, dated the 15th of January 1957. We further direct the Commissioner to declare the election of the petitioner as void and to hold a new election as required by rule 68 of the Municipal Election Rules. In the circumstances of the case, however, there shall be no order as to costs. M. R. KAYANI, J.‑Under section 255 of the Municipal Act, the Commissioner is required either to declare "the candidate" duly elected or to declare the election void. Firstly, the case before the Commissioner is that of a candidate whose election has been called in question, and it is apparently for that reason that the definite article "the" has been used before "candidate". The fundamental question before the Election Commission or the Commissioner, therefore, is whether the candidate whose election is challenged has been properly elected. The answer will be either yes or no, and section 255 requires an answer in those two cases. If the answer is yes, the Commissioner will say that "the candidate"‑that is to say, the successful candidate‑is duly elected. If it is no, then he will say the election is void. Secondly, if "the candidate" means the unsuccessful candi date, then, while the Commissioner is required to give a decision in respect of the person who has lodged the petition, he is not required to give a decision in respect of the person against whom the petition is lodged, except indirectly, and in a sort of cart‑before‑the‑horse manner. For before holding the successful candidate to have been elected unduly, the Commissioner holds the unsuccessful candidate to have been elected duly. Thirdly, the two alternatives contemplated by section 255 no longer remain as alternatives if the Commissioner holds that the unsuccessful candidate was duly elected ; for then, auto matically, the election is void. In that case the section should read thus: "The Commissioner shall pass orders declaring the candidate duly elected and declaring the election to be void." When you put a matter in the alternative, you mean that only one of the two things can happen. Consequently, the candidate must be the successful candi date in respect of whom the order is to be passed. For the rest, I agree with my brother. Of particular importance in his reasoning is the circumstance that in the Municipal Election Rules there is nothing corresponding to section 8 of Part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, which requires the Commissioners expressly to report whether the returned candidate or the objector has been duly elected. A. H. Petition accepted.