P L D 1960 (W (PLP)

6. The election petitions which have led to the writ petitions were presented under the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, which were issued as Notification No. SOX‑VIII‑6/4‑60, dated the 11th of January 1960, which appeared in the West Pakistan Gazette Extraordinary, dated the 11th of January 1960. These rules were issued by the Governor of West Pakistan in exercise of the powers conferred on him by clause (5) of Article 11, clause (5) of Article 12 and clause (2) of Article 89 of the Basic Democracies Order (18 of 1959) read with entry No. 3 of the Sixth Schedule thereto. The rules which are relevant for the purposes of these petitions are rules 5 and 7 which are in the following terms : "

5. Poll.‑(1) Votes for the office of the Chairman shall be given by ballot. (2) The Presiding Officer shall provide a ballot‑box which shall be shown empty to the members, and thereafter nailed or locked, and placed in a separate compartment. (3) The Presiding Officer shall issue to each member of the Basic Democracy a ballot in the Form appended to these rules. Each member shall after taking 'the ballot proceed to the compartment where the ballot‑box is kept, mark a cross on the ballot paper against the name of the candidate for whom he wishes to vote and thereafter drop the ballot in the ballot‑box. If a member cannot read or write, he may request the Presiding Officer to assist him in the marking of the ballot‑paper. (4) When the ballots have been cast, the Presiding Officer shall open the ballot‑box in the presence of the members, and count the votes cast in favour of each candidate. If there is any doubt or dispute about the marking of a ballot‑paper, the Presiding Officer may decide the issue, after holding such summary enquiry on the spot as may be necessary. (5) The candidate obtaining the highest number of votes shall be declared by the Presiding Officer to have been elected as the Chairman. If for the purposes of the declaration of the result there is a tie between two or more candidates who have obtained an equal number of votes, the result shall be declared by the Presiding Officer by drawing lots. "(7) Election Petition‑(1) No election of a Chairman shall be called in question except by a petition presented to the Control ling Authority within thirty days of the declaration of the result. (2) The Controlling Authority may after such enquiry as may be necessary, uphold the election of the chairman or declare the election as void for any material irregularity, or any sufficient reason to be recorded. (3) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules." The term "Controlling Authority" which occurs in rule 7, reproduced above, is not defined in the rules, but its definition is given in the Basic Democracies Order (President's Order 18 of 1959) in clause (10) of Article

3. This clause reads as follows:‑ "(10) "Controlling Authority" means‑ (i) Government in the case of all Divisional Councils, and such Union Committees as are within the jurisdiction of the Municipal Bodies or Cantonment Boards at Karachi, Dacca and Lahore ; (ii) Commissioner, in the case of a District Council ; (iii) Collector, in the case of all other local councils, except Union Councils in East Pakistan ; and (iv) Sub‑Divisional Officer, in the case of a Union Council in East Pakistan ;" Clause (8) of Article 3 of the Basic Democracies Order is to the effect that the term "Collector" means the Chief Officer in charge of the revenue administration of the District concerned including the Deputy Commissioner and that the powers of collector for the purposes of the Order could be conferred on any officer specially appointed by the Government in that behalf to perform all or any of the functions of the Collector under the Order. Pir Salah‑ud‑Din was not the Deputy Commissioner of Lahore, but the powers under clause (8) of Article 3 of the Basic Democracies Order had been conferred on him and, therefore, he was, in law, competent to dispose of the election petitions out of which Writ Petitions Nos. 548, 549 and 550 of 1960 have arisen.

7. The first question that requires determination is whether Ghulam Sarwar, respondent No. 3 in Writ Petition No. 548 of 1960, was competent to put in the election petition, because if he was not, it is obvious that the order of Pir Salah‑ud‑Din against the petitioner in that writ petition would be without jurisdiction. Ghulam Sarwar, respondent No. 3, who had put in the election petition disposed of by Pir Salah‑ud‑Din, was not a candidate for chairmanship but only a member who had exercised his vote for election of the chairman. The rules relating to the election of chairman and the election petitions pertaining to such elections are contained in the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, rules 5 and 7 of which have been reproduced in the last paragraph. The rule relevant for the determination of the question under consideration is rule 7 which, it will be noticed, does not indicate who the petitioner is to be. Ordinarily, only that person should be the petitioner who is directly aggrieved by the thing he wants to have avoided. If the ordinary rule is applicable, the only person competent to put in the election petition before the Controlling Authority was Altaf Husain, the rival candidate of Muhammad Husain, the petitioner in Writ Petition No. 548 of 1960. I have considered the matter and have arrived at the conclusion that the ordinary rule mentioned above has no application to cases of the present kind, because every member who has a right to vote at an election of the chairman is interested in seeing that a person who has not been properly elected as a chairman should not hold office of one. If, for example, there were two candidates for chairmanship and they entered into some sort of agreement whereby one of them did not contest seriously on account of his having received some consideration, it will be unfair to deprive the voters of the right to have the election of the chairman set aside in spite of the fact that it had resulted from a corrupt practice and I do not see why the case should be any different where no corrupt practice is alleged but the election is sought to be avoided for some other reason for which it could be declared to be void if the election petition had been brought by a candidate at the election. I would, therefore, hold that Ghulam Sarwar was fully as competent to present the election petition to the Controlling Authority as he would have been if he had been one of the candidates for the chairmanship.

8. I will now take up the question agitated by Sheikh Muhammad Shall who appeared for Ch. Wazir Ali, Pleader, Jhelum, respondent No. 2 in Writ Petition No. 417 of 1960. He contended that no writ could issue in cases of this type. When asked whether a writ could in a proper case issue where the dispute between the parties related to an election as a member of a Basic Democracy, he replied in the affirmative, but added that there was a difference between the case taken as the example and the one relating to the election of the chairman The distinction, accord ing to him, was that an election petition against a person who had been elected a member of a Basic Democracy was to be dealt with by an Election Tribunal as provided by the rules, namely, the West Pakistan Basic Democracies Election Rules, 1959 which appeared as Notification No. PEA‑59/940/ER in the West Pakistan Gazette Extraordinary, dated the 13th of November 1959, while an election petition relating to the election of a member of a Basic Democracy as chairman was to be disposed of by a Controlling Authority, the meaning of which expression has been given in paragraph 6 above. It was pointed out by Sheikh Muhammad Shaft, Advocate, that while the authority which was to deal with an election petition relating to election of a member of a Basic Democracy was designated an Election Tribunal, the same was not the case with regard to the authority competent to deal with an election petition relating to the election of a Chairman of a Basic Democracy. The argument was that while an Election Tribunal was bound by the rules, the Controlling Authority was not, and that the Controlling Authority could set aside an election untrammeled by any rules. In support of his contention that the Controlling Authority had unlimited powers, the learned counsel laid special emphasis on the words "any sufficient reason to be recorded" which occur in sub‑rule (2) of rule 7 of the Basic Democracies (Election of Chairman) Rules, 1960, reproduced in paragraph 6 above. I am clear in my mind that the contention of Sh. Muhammad Shafi has no force. The powers of the Controlling Authority are not as unlimited as Sh. Muhammad Shafi would have them held to be. An election of a chairman of a Basic Democracy cannot be set aside by the Controlling Authority unless there is a material irregularity or any other sufficient reason which must be recorded. When the powers of an authority which has been given the juris diction to give a decision on some point are as qualified as those of the Controlling Authority in the present case are by the rules issued under the Basic Democracies Order, it could hardly be doubted that this Court can issue a writ if the powers of the Con trolling Authority had not been exercised in conformity with the rules which conferred those powers. Is it reasonable to infer that the Controlling Authority was given power to set at naught the will of the members declared in the form of their votes for any reason which it may choose to mention ? Were the contention of Sh. Muhammad Shafi to be accepted, it will be open to the Controlling Authority to say that though the election of a person as chairman was strictly in accordance with the rules and the person elected as chairman was not debarred by the rules to be so elected, the election is declared void because the Controlling Authority did not like the shoe or the colour of clothes which the elected chairman wore on the day he appeared before him at one of the hearings of the election petition presented against him. If a Controlling Authority were to pass an order in those terms, it is obvious that the order will be without jurisdiction and the power of this Court to issue a writ will exist just as it will exist if the rules which give the Controlling Authority the jurisdiction to declare the election void were to be materially ignored by that authority and the order declaring the election void were passed for reasons for which the rules do not permit it to be declared void.

9. That the powers of a Controlling Authority to declare an election of a chairman of a Basic Democracy void are to be exercis ed within the four corners of rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, is clear from the (act that no other rule, nor any provision of the Basic Democracies Order, 1959, gives that authority the right to declare the election of a chairman void or to remove him from office at any time without any sufficient cause. It is true that the Controlling Authority can declare an election void either for a material irregularity or for any other sufficient reason to be recorded, but the fact that even if there had been no n1aterial irregularity at the election of a chair man, it could be declared void does not mean that it is left to the whim of the Controlling Authority to allow an elected chairman to function or not. If there had been no material irregularity in the election, there must be some other sufficient reason to justify the setting aside of the election. No definition of the term "suffi cient reason" has been given 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. If, for example, a candidate won an election of chairman and subsequently it had been declared that he was below the age prescribed by the relevant law as the minimum age for those who seek election as members, there would be a sufficient reason for the Controlling Authority to declare the election of the chairman void in spite of the fact that at the election‑ of the chairman there had been no material irregularity or any irregularity at all. The same will be the case if it were found that the members who devot ed for the successful candidate were incompetent for some reason or the other to be members. The examples I have given above meet the contention of Sh. Muhammad Shafi, Advocate, that as rule 7 of the West Pakistan Basic Democracies (Election of Chair man) Rules, 1960, did not enjoin an inquiry in all cases, but only in those in which it was necessary the powers of the Controlling Authority were unlimited because in the cases mentioned in the examples an inquiry by the Controlling Authority will not be necessary. Nor will an inquiry be necessary in a case in which the allegations in the election petition are admitted by the person who was elected as a chairman to be correct and those allegations furnish a sufficient ground for declaring the election to be void. I would, therefore, hold that the contention of Sheikh Muhammad Shafi that the order of the Controlling Authority passed under rule 7 of the Basic Democracies (Election of Chairman) Rules, 1960, was immune from scrutiny by this Court in the exercise of its writ jurisdiction is without force and that if sufficient grounds exist for issue of a writ, this Court is competent to issue one in and appropriate case.

10. I will now pass on to the question whether any of the cases under consideration call for the issue of a writ. At the outset I might say that this Court will not ordinarily exercise its discre tionary power to issue a writ where the Tribunal or Authority whose order is impugned has given a finding of fact which would justify the impugned order, because in its own sphere every Tribu nal or Authority is competent to decide issues of fact and its findings on those issues will be open to scrutiny only by an authority on which appellate powers have been conferred. If, however, the Tribunal or Authority which passed the impugned order has; misread the evidence or has given a finding on the assumption that some evidence exists on the record, which in fact does not exist, the position will be entirely different and in cases of that type this Court will, if the ends of justice demand, issue an appropriate writ. If, however, the Tribunal or Authority exercised a jurisdic tion which it did not possess or has, in the exercise of its jurisdic tion, misinterpreted the law and the misinterpretation has led to the exercise of jurisdiction which would otherwise not have been exercisable, this Court has the power to issue a writ and will issue; one unless the issue of a writ is deemed either unnecessary or inappropriate. In all the four cases under consideration the find ing of the respective Controlling Authority was that there had been a material irregularity in the course of election and the learn ed counsel who appeared for the contesting respondents in the four cases urged that the finding that there had been a material irregularity being one on a question of fact, this Court was incompetent to issue a writ. If the contention th4t the finding that there had been a material irregularity in the cases under considera tion is a finding on a question of fact, it is hardly open to question that no occasion for issue of a writ will arise and, therefore, in this connection the main question to determine is whether the finding about there being a material irregularity is, in the circumstances of the present cases, one of fact.

11. This leads one to the question what the term "material irregularity" which occurs in rule 7 of the West Pakistan Basic Democracies (Election' of Chairman) Rules, 1960, means. Neither the Basic Democracies Order, 1959, nor the rules mentioned above, have given a definition of the term "material irregularity". Naturally, therefore, a definition of the term was attempted by the learned counsel for the petitioners and those who appeared for the contesting respondents, as well as by the learned Advocate‑General, West Pakistan, to whom notice was issued at the instance of Mr. Qasim‑ud‑Din, Advocate, who appeared for some of the con testing respondents in the writ petitions from Lahore. The con tention of Mr. Mahmud Ali and Mr Ghias Muhammad, who appeared for the petitioners in the Lahore cases was that the term "material irregularity" meant a breach of the rules which has in fact affected the result of the election. The learned Advocate-General supported the learned counsel for th: petitioners in this contention and urged that the definition of the expression "material irregularity" given in the West Pakistan Basic Democracies Elec tion Rules, 1959 which dealt with a similar matter should be taken to be applicable. That definition is given in sub‑rule (12) of rule 2 of the West Pakistan Basic Democracies Rules, 1939 to be any non‑compliance with the provisions of the rules which materially affects the result of an election. The contention on behalf of the contesting respondents, however, was that every breach of a rule was a material irregularity for the purposes of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, irrespective of whether or not that breach had in any manner affected the result of the election. This interpretation was the same as that adopted by the Controlling Authority who passed the impugned orders.

12. 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" Both sets of rules, namely, West Pakistan Basic Democracies Election Rules, 1959 and West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 were issued by the same authority, namely, the Governor of West Pakistan and by the same person, namely, Mr. Akhtar Hussain, who was on the dates of the issue of both these sets of rules the Governor of the Province of West Pakistan and as those rules govern matters not dissimilar to each other, it will be permissible by all canons of interpretation to seek the help of the rules issued in 1959 for determining the meaning of the expression "material irregularity" which occurs in those rules us well as in the West Pakistan Basic Democracies (Election of Chairman) Rules 1960, in the latter of which it has not been defined. But even if such help were not to be sought, 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 in spite of the qualification of the word "irregularity" by the word "material" it should be inferred that the rule‑making 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. If mere non compliance with any of the rules were to be deemed to be a material irregularity for the purposes of clause (2) of Rule 7 of the West Pakistan Basic Democracies (Elec tion of Chairman) Rules, 1960, a candidate or one of his supporters who discovered that the voting was going in favour of the rival candidate could resort to the simple device of marking his ballot paper in the presence of the Presiding Officer for having the election of the rival candidate declared void, because by such marking rule 5 (3) would have been contravened. Such absurd results could not have been intended. I would, therefore, hold that the term "material irregularity" mentioned in sub‑rule (2) of rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules 1960 means an irregularity which had affected the result of the election and not an irregularity which, though it may have been) a breach of the rules, had not affected the result of the election one way or the other.

13. In the three cases from Lahore which are the subject of Writ Petitions Nos. 548, 549 and 550 of 1960 the finding of Pir Salah‑ud‑Din was that Mr. Muhammad Aslam Sukhera was sitting in the same room in which the ballot‑box was placed and this, according to Pir Salah‑ud‑Din, contravened rule 5 (2) of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. The learned counsel for the contesting respondents in all the three cases from Lahore urged that the expression "separate room" occurring in the relevant rule means the room where no human being is present, but I cannot accept this contention because it appears to me that it will be open to a Presiding Officer to post a guard near the ballot‑box so that no voter does anything which would spoil the ballot‑papers which have already been cast or will be cast which result of spoil ing the ballot‑papers could be achieved by throwing either an acid or some other liquid in the ballot‑box. If a guard can be posted near the ballot‑box, I do not see why the Presiding Officer himself cannot act as that guard. But even if I were to assume that the West Pakistan Basic Democracies (Election of Chairman) Rules 1960, require that the ballot‑box is to lie in a room denuded of all human beings, I do not see how the presence of Mr. Muhammad Aslam Sukhera in that room affected the result of the election. It was urged that Mr. Muhammad Aslam Sukhera could, if he chose to do so, see in whose favour any particular voter was voting and this would offend against the rule of secrecy of ballot. I will assume for the purposes of the disposal of this argument that Mr. Muhammad Aslam Sukhera could see in whose favour any particular voter was voting, but I do not see how that affected the result of the election. It was not alleged either in the election petition which is the subject of Writ Petition No. 548 of 1960 or that which is the subject of Writ Petition No. 550 of 1960 that Mr. Muhammad Aslam Sukhera in any manner inter fered with the choice of the voters and, therefore, his presence near the ballot‑box cannot be held to have affected the result of the election. In Writ Petition No. 549 of 1960 there was an allegation that Mr. Muhammad Aslam Sukhera advised some of the voters to vote in favour of the person who was ultimately success ful, but no evidence to that effect was produced before Pir Salah ud‑Din and it follows, therefore, that even in that case the presence of Mr. Muhammad Aslam Sukhera in the same room in which' the ballot‑box was lying had not worked to the benefit of the persons who were elected chairmen.

14. In the case from Jhelum, i.e., Writ Petition No. 41.7 of 1960, the allegations in the election petition disposed of by Raja Zia Ullah Khan were that the Presiding Officer was sitting in the same room in which the ballot‑box was lying and that the ballot -papers were marked by the voters in the presence of the Presiding Officer. There was, however, no finding by Raja Zia Ullah Khan, or even an allegation by the person who had presented the election petition to him, that as a result of this breach of sub‑rule (2) of rule 5 of the West Pakistan Basic Democracies (Election of Chairman) Rules 1960, the result of the election had been any different to what it would have been if the ballot‑box had lain in a room where the Presiding Officer was not sitting or the ballot‑papers had been marked by the members at a place which was not visible from the place where the Presiding Officer sat.

15. Sheikh Muhammad Shafi, Advocate, urged that the facts of the case from Jhelum which is the subject of Writ Petition No. 417 of 1960 were‑ different from those of the three writ peti tions from Lahore in so far as in that case the question arose whether one of the seven votes cast in favour of Ch. Fazal Karim was valid. This vote, according to what has been said by Raja Zia Ullah Khan in his impugned order, bore a cross mark against the name of Ch. Fazal Karim and a half cross mark, i.e., a T, against the name of Ch. Wazir Ali, Pleader. Raja Zia Ullah Khan did not base his order declaring the election void on any thing pertaining to this vote and it would' appear that as the rules require that each voter shall place a cross against the name of the' candidate he was voting in favour of, that vote had been cast in favour of a person declared successful after the election. That the counting of this vote as having been polled for Ch. Fazal Karim was entirely justified is clear from the fact that soon after the election Ch. Wazir Ali signed the memorandum of the result of the election prepared by the Presiding Officer and thereby accept ed the finding of the Presiding Officer that that vote was not invalid and was meant for Ch. Fazal Karim. After having accept ed the verdict of the officer who presided at the meeting it was not open to Ch. Wazir Ali to urge in his election petition that the vote in question was invalid. But be that as it may, as the election of Ch. Fazal Karim, the petitioner in Writ Petition No. 417 of 1960, was not declared to be void on the basis of a wrong decision of the Presiding Officer with regard to this vote, I cannot accept the contention that the order in Writ Petition No. 417 of 1960 should be different from the one in the three writ petitions from Lahore.

16. For the reasons given above, I would accept all the writ petitions with costs. Costs will be payable by that one of the respondents in each case who had put in the election petition. The fee paid by the Government to the Advocate‑General will also be paid by that respondent. The fee of the Advocate‑General will be assessed as Rs. 200 per case. SAJJAD AHMAD, J.‑I agree. A. H. Petitions accepted.