P L D 1969 Lahore 40 (PLP)

ATAULLAH SAJJAD, J.‑‑This writ petition is directed against the order of the Controlling Authority, Sheikhupura, dated 20‑6‑67 whereby it was held that the petitioner being less than 25 years of age at the time of his election to the Electoral College, his election as Chairman of the Union Council, Bacheki, was void.

2. The petitioner and Muhammad Irshad Khan, respondent No. 1, were elected as members of the Electoral College in 1964 from Bucheki. They assumed office as members of the Union Council, Bucheki, under section 57 of the Electoral College Act, 1964. Both were contestants for election as Chairman of Union Council, Bucheki. The petitioner was declared elected in the election held on 18‑1‑66 for that purpose.

3. Muhammad Irshad Khan respondent No. 1 filed an election petition before the Collector, Sheikhupura, in his capacity as Controlling Authority. The Controlling Authority, respondent No. 2 passed orders on 20‑6‑67 and held that Muhammad Hussain petitioner before us suffered from an inherent dis qualification at the time of his election as member of the Electoral College as he was below the age of 25 at the relevant time. His election as Chairman was consequently declared to be void on this ground.

4. This writ petition was admitted mainly to consider the question, whether the Election Authority could under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 (hereinafter called the Rules) set aside the election of the petitioner under the Electoral College Act of 1964. After passing the impugned order, the Controlling Authority fixed 5‑7‑67 for fresh election. A Division Bench of this Court passed an order on 5‑7‑67 staying the election and ordered that the Controlling Authority be informed on the telephone. The stay order, however, could not be communicated in time to the Presiding Officer appointed for holding the election with the result that respondent No. 1 was elected by eight out of the ten members of the Union Council as a Chairman. Two members did not attend. In view of the circumstances of the case, a Division Bench of this Court by order dated 3‑8‑67 recalled the order regarding the stay of fresh election.

5. Ch. Hamid‑ud‑Din, the learned counsel for the petitioner has asserted that the only way to challenge the validity of the election of the petitioner as a member of the Electoral College was to file an election petition. The learned counsel pointed out that such a petition was filed but was later on withdrawn. It is his contention that Article 171 of the Constitution is a complete bar to the jurisdiction of the Controlling Authority to declare the: election of the petitioner as a Chairman of the Union Council to be void on the ground that at the time of his election as member of the Electoral College, he did not fulfil the qualifica tion of age as prescribed in Article 158 of the Constitution. It was further contended that the powers of the Controlling Authority under the rules were confined to the examination of the regularity of the Election of Chairman and it had trans gressed its authority in entertaining the question of tae legality of the petitioner's election as member of the Electoral College. A grievance was also made of the fact that sufficient opportunity was not given to the petitioner to put his side of the case before the Controlling Authority. It is stated that on 7‑6‑67, when the election petition had been fixed for hearing, the petitioner fell ill and sent a telegram to the Controlling Authority to adjourn the case. It is further pointed out that on 20‑6‑67 on which day the impugned order was announced, the petitioner again appeared and asked for adjournment on the ground that his counsel was absent. This request was refused and this refusal deprived the petitioner of the opportunity to adduce evidence in his favour.

6. In order to support the contention raised with reference to Article 171 of the Constitution, the learned counsel referred to Mian Jamal Shah v. The Member, Election Commission and others (P L D 1966 S C 1) and A. M. Khan Leghari v. Government of Pakistan and others (P L D 1967 Lah. 227), and asserted that Article 171 of the Constitution is a complete bar to the jurisdiction of the Controlling Authority to enter into an examination of the legality of otherwise of the election of the petitioner to the Electoral College. As to the second leg of the objection with regard to jurisdiction, it was submitted that sub‑rule 7 of the Rules authorised the Controlling Authority to set aside an election on account of any material irregularity or for sufficient reason to by recorded. The learned counsel amplified his argument by saying that the words "material irregularity" and "sufficient reason" were to be read eausdem generis and that the Controlling Authority could not in this connection travel beyond the scope of Examining the legality of the proceedings held for the election of Chairman.

7. We had heard arguments in this case on 21‑12‑67 when it was brought to our notice that a similar matter was pending in the Supreme Court and we were requested to await the ‑decision in that case. We, therefore, adjourned the case sine die in order to await the pronouncement of the Supreme Court on this subject.

8. Ch. Hamid‑ud‑Din, the learned counsel for the petitioner on 29‑4‑68 placed two judgments of the same Controlling Authority on the record to show that the Authority itself had given decisions contrary to the impugned order, but for reasons, which follow, we need not take notice of these decisions.

9. The writ petition ultimately came up before us on 4‑6‑68 as we were informed that the Supreme Court by its judgment dated 4‑3‑68 in Civil Appeal No. 68/67 entitled Umar Daraz Khan v. Muhammad Yousaf and others had disposed of the point, which we were called upon to determine in this case. The appeal before the Supreme Court was filed against the judgment of a Division Bench of this Court in Writ Petition No. 475/66 reported as P L D 1968 Lah.

30. In that case, Muhammad Yousaf petitioner and Umar Daraz respondent No. 4 contested the election to the Chairmanship of Union Committee No. 14, Lyallpur. Umar Daraz Khan was declared elected. The petitioner filed an election petition before the Controlling Authority contending that his adversary was not 25 years of age at the time of his election to the Electoral College and was, therefore, disqualified to be a Member of the Union Committee and ineligible to be elected as a Chairman. The Controlling Authority rejected this plea and relying on the case of Ahsan Ali Mandal v. Z. A. Chaudhary, Election Tribunal, Additional Deputy Commissioner, Jessore, etc. (P L D 1966 Dacca 41), held that the election of Umar Daraz Khan as Chairman could not be called in to question on the ground that his age was below the prescribed limit at the time of his election as a member of the Electoral College. The respondent Umar Daraz Khan ‑ had submitted before the Controlling Authority that he had got his age corrected from the Registration Officer and therefore did not suffer from any dis ability regarding age.

10. The Division Bench of the High Court hearing that case framed three questions for its disposal out of which two which read as follows, are relevant for the purposes of the case before us :‑ (1) Whether an entry as to age in the electoral roll is final for purposes of election, if so, what is the effect? (2) Whether the election of a successful candidate can be challenged before the Controlling Authority in an election petition under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960? After considering the phraseology of sub‑rule 2 of rule 7, the Bench came to the conclusion that the words "material irregu larity" and "sufficient reason" have not been used synonymously and that the words "sufficient reason" have been added deliberately to widen the scope of the rule and the powers of the Controlling Authority to invalidate the election of a Chairman. Reference was made in this connection to Muhammad Nawaz Khan v. Ghulam Farid and another (P L D 1963 S C 623), Muhammad Hussain and others v. Pir Salahud‑Din Election Tribunal and others (P L D 1960 Lah. 1130), and Mehar Allah Yar v. Syed Hassan Jahanlan Shah Gardezi and others (P L D 1961 Lah. 247). It was held in the case of Muhammad Hussain referred to above that where a successful candidate for Chairman ship was below the prescribed age at the time of his election, it was open to the Controlling Authority to set aside his election notwithstanding the fact that no material irregularity had been. committed at the election.

11. After considering the dicta in the above cases and, some other authorities dealing with the effect of entries in the electoral roll, the Bench reached the following conclusions:‑ "One stage of challenge to his election as a member was before the Election Tribunal, but before the Tribunal, it was only one of the contesting candidates for election to the electoral unit, who could file an election petition. The petitioner could not have challenged his election by an election petition. When the respondent contested the election of Chairman, then arose the occasion for the petitioner to show that he not being a member of the Union Committee in law, could not seek election as Chairman. The question whether be was in law a member of the Electoral College or Union Committee was a very material one because if he could not be so elected, not being twenty‑five years of age, he could not contact the election of Chairman. Thus, by showing that he was not in law a member of the Union Committee, the petitioner would prove that he could not be elected as Chairman. If the election of the respondent as a member was opposed to the Constitution, there was a continuing wrong in. his remaining as a member and objection could be taken to his being a member in law and his seeking election as a Chairman. Such a case would be covered by the words "any sufficient reason", which are used in rule 7 in addition to "material irregularity" and they have to be given full meaning and effect. The intention appears to be to include in their ambit all valid grounds of challenge, as are sufficient in the opinion of the Controlling Authority as a reasonable person to render the election void."

12. The Supreme Court while considering the appeal from the above decision referred to Imtiaz Ali v. Ghulam Muhammad Butt and another (P L D 1958 S C 228) and Syed Aminuddin Chowdhury alias Ainuddin: Choudhury v. The Election Tribunal, Chittagong and others (P L D 1968 S C 235), wherein it was held that an Election Tribunal is not debarred from examining the question of the statutory disqualification of a person, whose name is borne on the electoral roll notwithstanding the fact that ordinarily the entries in the Electoral Roll are final so far as the qualifications of a voter or a candidate are concerned. Their Lordships also examined a number of other cases including the judgment of the High Court of East Pakistan in Ahsan Ali v. S. A. Chaudhary. It was held in that case that it was not the intention of law that the question of age should be examined by an Election Tribunal and it was, therefore, not within its jurisdiction to declare an election void on the ground that the returned candidate did not possess the requisite age qualifications. The view expressed by the West Pakistan High Court in Abdul Ghafoor v. Nur Muhammad and others (P L D 1966 Lah. 770). and Allah Ditto v. Muhammad Munir and others (P L D 1966 Lah. 423) is against the above view of the East Pakistan High Court. In the case of Abdul Ghafoor, the dictum in Ahsan Ali's case was dissented from, and it was held that the question of age went to the root of the personal qualifications of a candidate and an Election Tribunal could go behind the entries in the electoral roll regarding age. In the case of Allah Ditta, the High Court of West Pakistan held that notwithstanding the fact that remedy by way of an election petition was not availed of against a member of an Electoral College, the High Court, could, under Article 98 of the Constitution, interfere, if the returned candidate suffered from a disqualification on account of age. It appears that the view expressed by the West Pakistan High Court commended itself to their Lordships of the Supreme Court and they held as under: "In the light of the above observations, there can be no doubt that in an election petition, the Tribunal is competent to enquire if the successful candidate possesses the qualification as laid down in the Constitution or not. Hence, the High Court has rightly held that the Controlling Authority was not justified in dismissing the petition on the ground that he had no jurisdiction to enter into the question, whether the successful candidate possessed the age qualification or not?

13. In view of the above authoritative pronouncement of the Supreme Court, which is directly applicable to the facts of the case before us, it would ordinarily appear to be unnecessary to discuss the cases of Jamal Shah v. The Member, Election Commission and others and A. M. Khan Leghari v. Government of Pakistan and others relied upon by the learned counsel for the petitioner. Since, however, the case of Jamal Shah is frequently pressed into service to support the plea of bar of jurisdiction against this Court to issue a writ in election matters, we think, it would be fruitful to say something about its true import. The limited question raised in that case was whether the High Court had the jurisdiction to interfere in the order of the appellate authority appointed under section 53 of the National and Provincial Assembly (Elections) Act of 1964, holding certain votes to be valid or invalid. It was held by the Supreme Court that Article 171 of the Constitution was a bar to such an interference. No question regarding statutory qualifi cations was involved in that case. The observations made by the then Chief Justice at pages 25 and 26 of the report are categorical and the view expressed by his Lordship was that the terms of Article 171 are to be construed and given their fullest meaning irrespective of anything contained in any other Article of the Constitution. It was further observed that Article 171 requires the final determination, i.e. determination once for all, of the election disputes, should be in accordance with the law specially made for that purpose. These observations have however, to be interpreted with reference to the special con troversy raised before the Court. They do not aim at the, complete ouster of the jurisdiction of the Superior Courts to enforce the performance of legal duties by public functionaries. At page 37 of the report, his Lordship himself visualised some of the contingencies under which the interference of the Superior Courts in election matters could be justified to quote with, respect :‑ "It is tempting to examine the question from the point of view that the expression "without lawful authority" should be so construed in relation to the terms of the Act of 1964, that with the exception of direct contraventions of mandatory provisions and in the absence of such circumstances and lack. of competence or disqualification by bias or otherwise; or of fraud or malice which is detractive of all power under law everything done under the authority of that Act should be deemed to be within the lawful authority of the prescribed person or Tribunal. But nothing within these categories is alleged here, so that no general proposition to that effect need be laid down." The other four learned Judges positively expressed the opinion, that in cases of failure or refusal to exercise jurisdiction or for similar reasons, the High Court will be justified in interfering with the orders of the appellate authority or the Election Tribunal constituted under the Act of 1964. The position was further amplified in Akbar Ali v. Razi‑ur‑Rahman Khawaja and others (PLD 1966 SC 492), and it was held that if an election authority acts in a wanton manner, whether under the National and Provincial Assemblies Act or Electoral College Act, the decision in Mian Jamal Shah's case would not be an authority for the view that their decisions, are sacrosanct and may not be called in question in the High Court.

14. In Legharis's case the question did not directly relate to the scope or the powers of the Election Tribunals. Then petitioner in that case had questioned the validity of certain constitutional amendments passed by the National Assembly on the ground that a number of members who voted for these amendments held office of profit under the State and were disqualified to hold office as members of the National Assembly and the amendments passed by their votes were, therefore, null and void. The High Court dismissed the petition on a number of grounds. There are certain observations of the then Chief Justice Inamullah Khan in that judgment which tend to hold that if the matter of the disqualification of a member of a National Assembly had not been agitated by an election petition, any further scope for raising objection will be barred under Article 171 of the constitution and the election will become final. The present Chief Justice of the West Pakistan High Court. Wahid‑ud‑Din, J., as he then was, held that if the objection related to a statutory disqualification, it would be a continuing disability and the matter could be raised by filing a writ of quo warranto. The basic question before the Full Bench, however, was quite different from the one raised before us and we need not dilate on this matter any further.

15. At the final hearing of this writ petition on 4‑6‑68, Ch. Hamid‑ud‑Din, the learned counsel for the petitioner made two‑fold submissions. He submitted that the Supreme Court had not considered the effect of Article 171 of the Constitution and the, case before their Lordships was also distinguishable on the ground that a writ of quo warranto was asked for in that case. We do not find any substance in these contentions. There was a detailed discussion of the effect of Article 171 of the Constitution in the judgment of the Division Bench under appeal and it cannot be said that the provisions of Article 171 were not present to the mind of their Lordships. As to the second contention of the learned counsel, it may be pointed out that the direction of this Court in the nature of quo warranto was set aside by the Supreme Court and their Lordships held that the relief asked for in the writ petition was for the enforcement of duty cast upon the Controlling Authority under the law.

16. We do not think that Article 171 of the Constitution was intended to derogate from the positive direction of the Constitution contained in Article 158 with regard to the age of a candidate. It is not possible to hold that the Constitution intends to undo its mandatory provisions and set at naught by a later Article what it has imperatively directed in the earlier one. The qualifications of age prescribed by Article 158 have to be enforced and any interpretation on Article 171 which nullifies the effect of this condition should not be acceptable to Courts. We hold that the words "sufficient reasons" mentioned along with the words "material irregularity" in sub‑rule 2 of rule 7 of the Rules have a particular purpose and a wider significance. They are not to be read ejusdem generis with the words "material irregularity". The statutory disqualification of a candidate regarding age at the time of his election to the Electoral College would be a sufficient reason for the Controlling Authority to interfere in his election as a Chairman under rule 7 of the Rules.

17. The next question which requires consideration is whether the procedure adopted by the Controlling Authority resulted in the violation of the rules of natural justice as a result of which the petitioner did not get sufficient opportunity to present his case. The written statement filed by the respondent shows that the telegram sent by the petitioner to the Controlling Authority on 7‑6‑67 reached after an order directing ex parts proceedings against him had been passed. No attempt was made by the petitioner to find out as to what orders had been passed on 7‑6‑

67. An application (Copy Exh. R/5) appears to have been filed on 17‑6‑67 for setting aside the ex parts order. The next date of hearing was 20‑6‑67 on which date the petitioner was present and again asked for adjournment on the ground that his counsel was not present. This request was refused by order dated 20‑6‑67, a copy of which is Exh. R/4 at page 71 of the file. The Controlling Authority also observed that the petitioner was not able to give sufficient reasons for setting aside the ex parte order. We, therefore, take it that application for setting aside ex parts order was also rejected by this order.

18. We find from an affidavit of Muhammad Irshad Khan respondent, Exh. R/6 that the petitioner did not appear before the Tribunal on 27‑1‑66, 10‑2‑66, 29‑7‑60, 13‑8‑66, 4‑11‑66; and 24‑4‑

67. It is alleged in the affidavit that the case was being adjourned since a period of a year and a half on account of the delaying tactics of the petitioner and that it was ultimately on 7‑6‑67 that the Controlling Authority passed an order directing ex parse proceedings against him. Even on 20‑6‑67, the petitioner had no evidence remedy and he just asked for an adjournment. There is no counter affidavit on the record to rebut the allegations contained in this affidavit. We, therefore, do not find that the order of the Controlling Authority refusing to adjourn the case from 20‑6‑67 onwards was passed without lawful authority.

19. In view of the above discussion, the contentions raised by the petitioner fail and we hereby dismiss this writ petition. In view of the fact that important constitutional points were involved, we leave the parties to bear their own costs. A. E. Petition dismissed.