P L D 1988 Lahore 171 (PLP)

In this constitutional petition the petitioner has challenged the legality of Notification, dated 7‑12‑1987 through which amendments in Rules 57, 58, 59 and 60 of the Punjab Local (Election) Rules, 1979, have been brought in, to the effect that the polls regarding election to the seats of special interests, Chairman and Vice‑Chairman of the Local Council shall be held by raise of hands in substitution of the previous procedure of secret ballot. It is alleged in the writ petition that the petitioner is a registered voter of electoral unit Ward No. 9, Union Council Kotli Najabat, Tehsil Shaujabad and has been returned as Local Councillor of the said Council and has been notified as such.

2. Learned counsel for the petitioner submitted that the election schedule to the special seats as also to the seat of Chairman and Vice‑Chairman is yet to be notified by respondent No.

3. The grievance of the petitioner is that he being prospective candidate for seeking election of Chairmanship of the said Union Council is adversely affected by amendments brought in through the said notification in the relevant rules which allegedly operate to the prejudice of the interest of the petitioner.

3. Learned counsel for the petitioner contended that the impugned notification and the amendments are ultra vires of the provisions of section 13 of the Punjab Local Government Ordinance, 1979, and Article 226 of the Constitution. According to the learned counsel section 13 of the Ordinance provides as a mandatory requirement that election of members of all local councils shall be held on the basis of adult franchise through secret ballot, therefore, the impugned rules framed under the said Ordinance by the Government are in conflict with the said mandatory provision of law therefore, ultra vires of the said Ordinance by which the procedure of secret ballot has been guaranteed. Similar is the argument in relation to Article 226 of the Constitution. Reliance has been placed on judgment reported as Muhammad Anwar Butt v. Election Tribunal, Daska and 3 others 1987 S C M R 933.

4. In order to appreciate the contention it will be useful to reproduce section 13 and other relevant provision of the Ordinance for facility of reference. Section 13 of the Ordinance is as under:‑ "

13. Mode of Election.‑‑ (1) Save as otherwise provided in the Ordinance, election of members of all local councils shall be held on the basis of adult franchise through secret ballot: Provided that the representatives of peasants, workers and women shall be elected by the members of a local council in the prescribed manner. (2) The election to Muslim and non‑Muslim seats in a local council shall be held on the principle of separate electorates." It will not be out of place to reproduce also section 12 which is relevant to decide the law point raised in this petition. Section 12 of the Ordinance is as follows:‑ "

12. Election of Chairman and Vice‑Chairman of Local Council.‑‑ (1) For every local council there shall be a Chairman and a Vice‑Chairman who shall be elected from amongst the members of the local council in the prescribed manner. (2) The term of office of a Chairman and a Vice‑Chairman shall be the same as that of the local council." From bare reading of section 13 of the Ordinance it is manifest that it is restricted in its application to the election of members of all local councils which has been provided to be held through secret ballot. However, according to proviso to this section it has been provided that the representatives of peasants, workers and women commonly known as special interest seats shall be elected by the members of local council in the 'prescribed manner'. The opening part of this section saves the other provisions of the Ordinance from its purview, one of such provisions is section 12 which regulates the matters regarding election of Chairman and Vice‑Chairman of Local Council and this section lays down that Chairman and Vice‑Chairman shall be elected from amongst the members of the local council in the 'prescribed manner' (underline is ours). The term 'prescribed' has been in section 3(1)(xxix) to mean prescribed by rules. On the other hand Article 226 of the Constitution provides that all elections under the Constitution other than those of the Prime Minister and & Chief Minister shall be by secret ballot. From the comparative study of these provisions of law and after examining all of them together no doubt can be entertained that the mandatory requirement of section 13 to hold elections of member of all local councils through secret ballot is not applicable either to the election of seats of special interest or the Chairman or Vice‑Chairman of a local council. Since election of Chairman and Vice‑Chairman of a local council is to be held in the 'prescribed manner' under section 12, therefore, it is permissible to frame a rule prescribing different procedure of votes from that of the procedure of secret ballot as provided in section 13 for the elections of member of local council and the same is the case with regard to election of special interest seats. The impugned notification amending Rules 57, 58, 59 and 60 as aforementioned so as to provide that the polling in connection with the election of Chairman and Vice‑Chairman shall be by raise of hands, cannot be held to be ultra vires of section 13 of the Ordinance. It is well within the competence of the rule‑making authority to prescribe any procedure of polling in respect of election of Chairman, Vice‑Chairman and special interest seats. Article 226 of the Constitution can also not be pressed into service, for, it is applicable only to election to be held under the Constitution. The election of members of local council and Chairman and Vice‑Chairman are not held under the Constitution, therefore, the argument based on Article 226 of the Constitution has no force and is hereby repelled. The matter can be viewed from another angle. Section 12 of the Ordinance deals with specified subject that is election of Chairman and Vice‑Chairman of a local council, therefore, it is a special provision whereas section 13 is a general provision of law. According to well‑accepted principles, of interpretation of statute a general provision in the same statute cannot operate to control the special provision, therefore, section 121 and the rules framed thereunder prescribing procedure of election of Chairman and Vice‑Chairman shall have the legal status of special provision, therefore, their operation is not adversely effected by! general provision of section 13.

5. Learned counsel for the petitioner then stressed that the impugned amendments in the said Rules should be struck down as the rule‑making authority has not brought consequential amendment in Rule 29 and as such according to the learned counsel the said rule 29 is inconsistent with the amended rules 57, 58, 59 and 60, for, both cannot operate together. The argument is basically fallacious but also misconceived. Rule 29 falls in Chapter IV which relates to election of members of Muslims seats of local council except Tehsil Councils and as such the said rule governs the matters relating to election of members of local council in general and is relatable to section 13 of the Ordinance, and is in consonance with the said section which requires such election to be held through secret ballot. The election of Chairman and Vice‑Chairman is dealt with by Chapter VII in which Rules 58, 59 and 60 fall whereas election to seats of special interests is governed by Chapter VI of the said Rules in which rule 57 falls. From a survey of provisions of these rules it isi very much clear that whereas rule 29 on the one hand is a genera: rule which regulates the procedure of election to members of local council prescribing procedure of secret ballot and as such it is in accord with the provision of section 13 of the Ordinance and Ruled 57, 58, 59 and 60 on the other which falls in different Chapters dear with and regulate the procedure of election to special interest seats and Chairman and Vice‑Chairman which are special provision intended to regulate only those elections and as such both sets of rules occupy different fields and can operate in their respective fields without, doing violence to each other and are not either in conflict with each' other or mutually destructive as has been attempted to be argued by the learned counsel for the petitioner. It may be observed that ever, if there had been any inconsistent between rule 29 and rules 57, 58, 59 and 60 even then both the provisions having the status of ruled framed by the same authority, the rules framed later in time would have had the effect of amending or altering previously existing rule to the extent of inconsistency, if any, and on this score also the argument of the learned counsel for the petitioner is liable to be rejected. The case‑law relied upon by the learned counsel for the petitioner is not applicable to the facts of this case as in the Supreme Court judgment the case before the Court was with regard to election to the members of local council which is required to be held through secret ballot under section 13, therefore, it cannot be said to be applicable to the case in hand which is in respect of election of Chairman and Vice‑Chairman.

6. Learned counsel for the petitioner lastly argued that the amendments brought in, through the impugned notification in the relevant rules, are mala fide and without legal justification, therefore, the same should be struck down on that ground. This argument also has no force. It has authoritatively be held by the Supreme Court in judgment reported as Fauji Foundation and another v. Shamim‑ur Rehman P L D 1983 SC 457, that the legislative instruments are no, permitted to be challenged on the ground of mala fides. It has also been held in that case that legal justification for issuing legislative; instrument is a matter solely within the competence of legislator or law‑giver which cannot be judicially reviewed. This being the laws declared by the Supreme Court there is no room to entertain this argument. The rules framed under the statute no doubt are legislative instruments.

7. It has been vaguely suggested that the impugned amendment is violative of rule 81 which provides punishment if persons mentioned therein fail to maintain or aid of maintaining the secrecy of voting, therefore, according to the learned counsel for the petitioner no rule could be made doing away with the procedure of polling through secret ballot. This argument equally has no substance. Rule 81 would be operative only in relation to that provision of law and the rules which provide voting procedure through secret ballot and cannot be construed to prohibit the law‑maker from making the rule that in respect of election of Chairman and Vice‑Chairman and special interest seats and procedure shall be different from that of secret ballot which power is derivable from section 12 of the Ordinance and rules 81 is to yield to the said substantive provision of the law.

8. Learned counsel lastly endeavoured to argue on the authority of judgment reported as Perumalla Venkayya v. Batchu Pullayya AIR 1942 Mad. 466, that sanctity of every election lies in the voting through secret ballot, therefore, as observed in this judgment on general principles the impugned notification prescribing procedure of polling, through raise of hands should be struck down by the Court as bad law. We are afraid the argument is highly misconceived. No legislative instrument can be struck down being violative of an abstract proposition of law or general principles. The vires of legislative instrument cannot be tested or examined with reference to such statements of law of general nature. In the instant case in the presence of express provision of law contained in section 12 of the Ordinance empowering the rule‑making authority to promulgate a rule prescribing any procedure of polling in respect of specified subject, it is difficult to hold that though the said rules are in accord with the parent statute the same could be void being in conflict with and violative of the said abstract proposition of law. Had the legislator intended that elections as a whole including that of Chairman, Vice‑Chairman and special interest seats are also to be held through secret ballot it would have been expressed by enacting a clear provision in the law as it has been done in respect of elections of members of local council in general by enacting section 13 of the Ordinance. It is, therefore, clear that the legislature in its wisdom has left the question of prescribing procedure of the elections of Chairman and Vice‑Chairman as also special interest seats by rules which may be different from the procedure of secret ballot.

9. Before parting with this case it may be mentioned that the petitioner has impleaded Governor of the Punjab as respondent No. 1 in this writ petition and when pointed out that the Governor of a Province enjoys immunity from the process of the Court under Article 248 of the Constitution and as such his presence as one of the respondents, may operate in bar of constitutional jurisdiction, the learned counsel for the petitioner prayed that the name of the Governor of Punjab, as respondent No.1, may be deleted. The office is directed to delete the name of respondent No. 1 from the title of the writ petition. For the foregoing reasons the writ petition is without any merits, therefore, the same is hereby dismissed in limine. M.Y.H./N‑84/L Petition dismissed.