P L D 1980 Lahore 311 (PLP)

The petitioner, Muhammad Ashraf who contested the election for the special interest seat reserved for peasants seat in Union Council Chak Umra, Tehsil Chakwal, District Jhelum, obtained five votes as against six votes secured by respondent No. 1, Muhammad Ajaib who was declared elected. The election of Muhammad Ajaib was challenged before the Election Tribunal, Jhelum, respondent No. 3, by the petitioner on the ground that Muhammad Ajaib being a depot holder and an owner of more than 40 kanals of land was disqualified to be a candidate or a member of the Union Council. Before the Election Tribunal, Muhammad Ajaib, admitted being a depot holder and owning land exceeding 40 kanals. Accordingly, he was declared disqualified and his election set aside. The claim of Muhammad Ashraf, petitioner, to be declared elected in the place of Muhammad Ajaib was rejected by the Election Tribunal. By this petition the order of the Election Tribunal dated 31-12-1979 is impugned, on the ground that the petitioner was entitled to be declared elected. Learned counsel for the petitioner contended that after the election of respondent Muhammad Ajaib was declared to be void on the ground that he was disqualified from being elected in terms of rules 13 of the Punjab Local Councils (Election Petition) Rules, 1979, the petitioner was entitled to be declared elected in accordance with rule 14 of the said Rules. The issue raised is whether the petitioner having obtained five votes against the six votes cast in favour of respondent No. 1 was entitled to be declared elected.

2. In this context it would be beneficial to reproduce rules 13 and 14 of the Punjab Local Councils (Election Petitions) Rules, 1979 :

13. Ground for declaring election of returned candidate void.-(1). The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that; (a)??????. (b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Chairman or Vice-Chairman, as the case may be; or (c)??????????.

14. Ground for declaring a person other than a returned candidate elected.-The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidates to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected.

3. In support of his contention, that the petitioner was entitled to be declared elected, learned counsel relied on judgment of this Court in Saleh Muhammad v. Muhammad Roz (1). The relevant facts are that Saleh Muhammad, the successful candidate, was held by the Election Tribunal to be disqualified on account of his having been dismissed from Government Service and his election was set aside. The Election Tribunal declared respondent Muhammad Roz, who had secured the next highest votes, to be elected, which order was impugned in the writ petition. The Court upheld the disqualification of Saleh Muhammad. The issue whether Muhammad Roz could be declared elected was raised on behalf of Abdullah another contesting candidate, but the Court did not determine it, as in its view as Abdullah had not filed any recrimination, he was not entitled to raise the issue. This authority is of no help to the petitioner, as it does not determine the circumstances in which an unsuccessful candidate may be declared to be elected. This judgment was also examined and commented upon in Sanaullah v. Election Tribunalt Gujrat (1), where it was observed that as Abdullah the other contesting candidate had not filed a recrimination, his objection to Muhammad Roz being declared elected could not have been heard. (1) P L D 1962 Lah. 68

4. Learned counsel has next relied upon Sanaullah v. Election Tribunal Gujrat. In this case the petitioner Sanaullah had obtained 225 votes as against respondent, Bahawal Bakbsh, who obtained 221 votes. The election of Sanaullah was set aside by the Election Tribunal on the ground that he was less than 25 years of age and the claim of Bahawal Bakhsh to be declared duly elected was allowed. The order of the Election Tribunal was impugned in the afore-noted petition. Accepting the petition, the Court observed that the votes cast in favour of Sanaullah could not be treated as wasted or thrown away votes, for the reason that the voters had no notice of the infirmity attached to the candidature of Sanaullah. This judgment does not support the contention of the petitioner, but is to the contrary.

5. In this context paragraph 549 of Halsbury's Laws of England, Vol. 14, (Third Edition), which has been repeatedly referred to in all the leading judgments on the subject, may be reproduced; "Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of ,the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complication facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes give for him will not be thrown away so as to give the seat to the candidate with next highest number of votes. For the votes give for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creation the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good. If after deducting the votes given after such notice from the total number of votes given for the disqualified candidate he remains. in a majority, the minority candidate cannot be seated and there must be a fresh election."

6. The entitlement of a candidate securing the second highest vote to? be declared elected, was last examined by the supreme Court in Syed Saeed Hassan v. Pyar Ali (1). Appellant Saeed Hassan had been declared elected as a member of the Sind Provincial Assembly in 1970, having polled 9860 votes as against 6965 and 6951 votes polled by Pyar Ali Alana and Mr. Lutafullah respondents. The election was challenged by means of an election petition. The election of Saeed Hassan was declared to be void and further Payar Ali was held to be entitled to be duly elected. Dealing with the later issue, the Supreme Court had occasion to examine the provisions of section 66 of the National and Provincial Assemblies (Election) .Ordinance, 1970, which provides that where the election of a returned candidate is declared void the Election Tribunal if satisfied that the candidate who secured the next highest votes is so entitled, may declare him to be elected. The Supreme Court examined the meanings of the terms "satisfied" and "entitled". Rules 13 and 14 of the Punjab Local Councils (Election Petitions) Rules, 1979 are in their terms pari materia with section 66 afore referred. According to the Supreme Court the term "entitled" refers to the right to be declared elected. It rejected the contention that once the Tribunal holds that a returned candidate has not been validly elected, then it must award the seat to the person having polled the next highest number of votes. In this context it was observed by the Court that; "having regard to the level of legal knowledge and awareness of the average voter of this country, it cannot be disputed that the disqualification was not so apparent and notorious as to justify the inference of wilful perverseness on the part of the electors who voted for the appellant to cast' away their votes. This disqualification was certainly based on "complicated facts and legal arguments", and such did not justify the disenfranchisement of about 10,000 voters The same view was taken by this Court in a recent judgment delivered, whereby Petitions for Special Leave to Appeal Nos. K. 138 (Lal Muhammad v. Usman Kennedy etc.) K-143 of 1974: (Muhammad Usman Kennedy v. Lal Muhammad etc.) arising out of the same election to the Sind Provincial Assembly and directed against the appellate order of the High Court were dismissed vide judgment dated 17-12-1974 wherein a reference was also made to the High Court's judgment in the instant case. It appears however, that in its judgment in the latter case which was upheld by this Court, the High Court did appreciate that it had not taken note of this Court's decision in Rashid Ahmad v. Barkat Ali wherein the general principles contained in paragraph 549 of Halsbury's Laws of England, Vol. 14 were approved." (1) P L D 1966 Lab, 97

7. Reference may also be made to another judgment of Supreme Court in the case of Rashid Ahmad v. Barkat Ali (2). In this case Barkat Ali respondent had been declared to be elected as a member of the Electoral College, but his election was set aside on the ground that he was not qualified to contest, as his name had been inserted in the Electoral Roll after the expiry of period prescribed for the same. Rashid Ahmad the candidate who secured the next highest votes was declared by the Election Tribunal to be duly elected, in the vacancy. The Supreme Court after noting the statement of the law as contained in para. 549 of Halsbury's Laws of England, Vol. 14 (Third Edn.) and the judgment in Re: Bristol South-East Parliamentary Election (5) observed ,that; "In the instant case the voters could have had no notice of the fact that inclusion of Barkat Ali's name in the final electoral roll was in violation of sub-rule (3) of rule

22. Hence, they cannot be disfranchised for no fault on their part. Votes given by them without notice of the above disqualification ought to be treated as good votes. As Barkat Ali had majority votes, the minority candidate cannot be declared elected. (1) PLD 1976SC6 ??????? (2) PLD 1968SC302??? ( V) (1961) 3 A E R 354 For the reason stated above, we must hold that by reason of failure of the Registration Officer to act in accordance with the provisions of the Rules, the result of the election has been materially affected and hence the election should be declared as a whole void. A similar question arose in the case of Sanaullah v. Election Tribunal, Gujrat and others, and the Court rightly ordered a fresh election."

8. The issue was recently examined by this Court in Muhammad 2afrullah v. Muhammad Sharif (1). The petitioner who had secured the highest number of votes as against the second highest votes secured by the respondent was declared disqualified to contest the election. The Election Tribunal found the respondent entitled to be declared duly elected on account of the notorious disqualification of the appellant. Accepting the petition this Court set aside the order declaring the respondent to have been elected, and observed that; "This issue could be resolved after deciding whether the disqualification of the petitioner was notorious enough to disfranchise the voters who cast their votes in his favour. If they voted for him in spite of full knowledge that he was disqualified to contest the election then certainly their votes are to be ignored. But if the disqualification C was not known to them, then their votes cannot be thrown awe as it would amount to disfranchise the voters which is not otherwise allowed by law."

9. Reference in this behalf may also be made to the judgments in Ghaus Bak-hsh Bizenjo v. The Chief Election Commissioner (2); Sahib Mia Chaudhary v. S. M. Mir (3); Shamsul Hasnain v. ?lair Ghulam Ali (4), Amanullah v. Election Tribunal (5); Vashsit Narain Sharma v. Dev Chandra (6); Habs v. Morey (7) and Pritchard v. Mayer etc. (8). In these cases the election of returned candidates had been upset but the contesting candidates securing the next highest votes were not found to be entitled to be declared elected.

10. In the present case it was admitted by respondent Muhammad Ajaib, the returned candidate, that he was disqualified as he was a depot holder and owned more than 40 kanals of land. He was according unseated by the Election Tribunal. Learned counsel argued that fact the Muhammad Ajaib was a depot holder was too well known and of sufficien notoriety. He also argued that the fact he owned land more than 40 kanal of land was similarly well known.

11. In so far as the former fact is concerned, it may have been well known that the respondent was a depot holder but its legal consequence were not beyond doubt and was the subject-matter of controversy before Courts. The question whether a depot holder stood disqualified by virtually of section 20 (f ) of the Punjab Local Government Ordinance VI of 1979, read with Article 10 of the President's Post-Proclamation Order No. 5 of 1977 was first examined by me in Muhammad Khan v. Muhammad Sarfraz (1). It was held in this case that the disqualifications enunciated in Article 10 of the President's Post-Proclamation Order No. 5 of 1977, were attached to candidates and members of local councils constituted under Punjab Ordinance VI of 1979. The petitions for leave to appeal against this judgment in (C. P. S. L. A. No. 987 and 1000 of 1979), were dismissed by the Supreme Court on 18th of December 1979. As such the question remained sub judice and was finally decided only on 18th of December, 1979. The election in this case took place on 12-12-1979: Therefore, the doctrine ; (1) P L D 1976 Lah. 302 ?????????? (2) P L D 1969 Kar. 662 (3) P L D 1966 Dacca 439 ??????? (4) P L D 1963 Kar. 588 (5) P L D 1961 Lah. 907 ?????????? (6) A I R 1954 S C 513 (7) AIR 19541 K B 74?? (8) (1888) 13 A C 241 "thrown away votes" cannot in any manner be attracted. It cannot said that the disqualification attaching to depot holders was. a matter o notoriety.

12. In so far as the latter basis of disqualification i.e. respondent Muhammad Ajaib, being an owner of land exceeding 40 kanals is concerned, this fact cannot by its very nature be a matter of notoriety and unless established can by no stretch of imagination be said to be a fact which could have been in the knowledge of the voters. In fact no objection on this ground was raised against the candidature of Muhammad Ajaib, and perhaps even the petitioner was unaware.

13. In these circumstances for the reasons noted above, there is no force in this petition which is rejected in limine. s. A. H.??????????? Petition dismissed. (1) 1980CLC