P L D 1971 Lahore 737 (PLP)

2. No appeal being provided against the illegal acceptance of a nomination paper, the petitioner invoked the powers of review vesting in the Election Commission under section 92 of the Ordinance. The learned Chief Election Commissioner, however, rejected the review application by his order dated the 22nd of October 1970, observing that although it was an irregu larity on the part of the Returning Officer to accept the respon dent's nomination papers one day ahead of the date specified in the relevant Notification, yet this irregularity was not such as would interfere with the conduct of the elections honestly, justly and fairly.

3. It is submitted by the learned counsel that the provi sions contained in sections 11 and 12 of the Ordinance are mandatory in nature and a violation thereof would invalidate the nomination of a candidate. It is contended that, in fact, there is no nomination at all of the respondent in this case, for the reason that the relevant papers were not submitted on the appointed day, namely, the 15th of October 1970, and accordingly the Returning Officer has acted completely without jurisdiction in treating the respondent as a validly nominated candidate for this election.

4. After hearing the learned counsel for the petitioner at some length, we are of the view that this is not at all a fit case for our interference at this stage. In the first place, there is the question of jurisdiction and propriety. Although it may be said that Article 171 of the abrogated Constitution of 1962 is not strictly applicable to the elections which are being held not under that Constitution, but under the Legal Framework Order, 1970 read with the National and Provincial Assemblies (Elections) Ordinance, 1970, yet it is clear to us that the principle of non‑interference embodied in the said article would apply in such a case. This conclusion directly flows from the bar of jurisdiction as contained in sections 50 and 93 of the Ordinance, read with section 65 thereof. Section 50 contemplates that no election shall be called in question except by and election petition made by a candidate. Section 65 lays down that the Election Tribunal inquiring into an election dispute shall declare the election of the returned candidate to be void, if it is satisfied inter alla, that the nomination of the returned candidate was invalid. It would seem, therefore, that the question whether the returned candidate was validly nominated or not is one to be investigated by an Election Tribunal set up under section 50 of the Ordinance.

5. Section 93 of the Ordinance further provides that "no Court shall ‑question the legality of any action taken in good faith by or under the authority of the Commission, the Commissioner, the Returning Officer, Presiding Officer or an Assistant Presiding Officer or any decision given by any of them or by any other officer or Authority appointed under this Ordinance or Rules."

6. It will be seen from the foregoing provisions that the scheme of the relevant law is to keep election disputes out of the ordinary Courts as far as possible. These provisions also show that an alternative remedy is available to the petitioner in case respondent No. 1 is returned in the election. In these' circumstances, we are of the view that it is neither necessary nor proper for us to interfere in this matter at this stage in the exercise of our extraordinary jurisdiction under Article 98 of the abrogated Constitution of 1962.

7. Apart from these considerations, we find that even on merits the petition is bound to fail. Generally speaking, in all election disputes the essential question is two‑fold (a) Does the act complained of constitute a violation of any mandatory provision of the election law; or (b) has the act in question materially affected the result of the election.

8. Now, in the present case, the learned Chief Election Commissioner has, if we may say so with respect, rightly expressed the view that although the act of the Returning Officer in accepting the nomination papers of Mian Salah‑ud‑Din one day ahead of the specified date amounts to an irregularity, yet it has not in any manner affected the just, honest and fair conduct of the elections. Mr. Rafiq Ahmad Sheikh was not able to say much on this aspect of the case. The poll has yet to take place, and nothing has been done by the Returning Officer, or by the candidate which, could be said to be likely to adversely affect the free choice of the voters.

9. The real question, therefore, is whether there has been a violation of any mandatory provision of the election law and rules. It is true that the relevant Notification has specified a particular date for nominations, in contrast to the last date for withdrawals. But this difference, by itself, is not conclusive as to the mandatory nature of the rule. The Notification issued under section 11 of the Ordinance prescribes a schedule or time‑table for the completion of the different processes which, taken together, constitute "the election". The officials charged with the conduct of the election are enjoined to carry out these processes step by step so as to enable the voters to exercise their choice freely and fairly on the polling day. It is well settled that as a general rule the statutory provisions are to be regarded as directly, unless the Legislature itself has (prescribed a penal consequence for their violation or non‑compliance by the election officials, as otherwise dishonest o inefficient officials could easily defeat the very object of the election law (see Rana Muhammad Jamil v. The Punjab Road Transport Board, Lahore and others (P L D 1957 Lah. 1), Zain Noorani v. Secretary of the National Assembly of Pakistan (P L D 1957 S C (Pak.) 1), Haji Muhammad Rafique v. The Additional Commissioner and Election Tribunal, Hyderabad Division and others (P L D 1966 Kar. 434) and Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others (P L D 1961 S C 1). The Ordinance has not prescribed any penal consequence for the early acceptance of a nomination paper. And rightly so. A paper so submitted continues to be available on the appointed day, unless in the interregnum the candidate has ceased to be eligible. But that would be a separate question arising only on the scrutiny day. We consider, therefore, that the provision in question must be regarded as being directory in nature, and accordingly the violation alleged in this case would not, by itself, invalidate the respondent's nomination.

10. The Returning Officer accepted the respondent No. 1's nomination papers on the 14th of October 1970, and thereby created a situation which cannot now be permitted to be used to the detriment of the latter. There could have been no difficulty in the way of the respondent presenting his nomination L papers on the following day, if the Returning Officer had refused to receive them on the 14th of October 1970. The learned Chief Election Commissioner, therefore, rightly regarded this act of the Returning Officer as a mere irregularity not calling for any interference by him in the exercise of his powers of review.

11. For the foregoing reasons, the petition fails and is hereby dismissed in limine. K. B. A. Petition dismissed.