P L D 1961 (W (PLP)

5. The first point that the election was not in consonance with the procedure prescribed by the Karachi Municipal Committee Rules, 1960, is based on what is contained in rule

6. Rule 6 o' the Karachi Municipal Committee Rules, 1960, reads as under "

6. Poll.‑(I) Voting at the election shall be by ballot. (2) The Presiding Officer shall provide a ballot box which shall be shown empty to the members of the Union Committee and thereafter nailed or locked and placed in a separate compartment. (3) (a) The Presiding Officer shall issue to each member of the Union Committee a ballot paper, in the form given in the Schedule to these Rules. (b) After receiving the ballot paper the member shall proceed to the compartment where the ballot box is placed, mark a cross on the ballot paper against the name of the candidate for whom he wishes to vote and thereafter drop the ballot paper in the ballot box. (c) If any such member cannot read or write he may request the Presiding Officer to assist him in the marking of the ballot paper. (4) (a) When every member of the Union Committee present and intending to cast his vote has done so, the Presiding Officer shall open the ballot box in the presence of the members, and count the votes in favour of each candidate. (b) Any doubt or dispute about the marking of a ballot paper shall be decided by the Presiding Officer after such summary enquiry on the spot as may be necessary. (5) (a) The candidate obtaining the highest number of votes shall be declared by the Presiding Officer to have been elected as a member of the Municipal Committee. (b) If for the purposes of 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." It is not contended that the procedure prescribed in rule 6 clauses 1 and 2, 3 (c), 4 (a), 4 (b), 5 (a) and 5 (b) has not been followed. What is contended is that the procedure prescribed in rule 6 clause 3 (a) and (b) has not been followed. The admitted position on facts is that all the 27 members present at the time of election were given ballot papers at one and the same time in the same common room where all the members were sitting. It is also admitted that before each of the members went into the compartment where the ballot boxes were lying to cast his vote, one of the members, Abdul Hafiz by name, marked the ballot paper not in compartment where he was required to mark it but in the common room where all the members were sitting. An objection to Abdul Hafiz having marked his ballot paper there, was taken on which respondent No. 4 held an enquiry and gave his finding that Abdul Hafiz had marked the ballot paper while he was sitting in the common room and that his marking the paper was in contravention of what was contained in rule 6 clause 3 (b). It is also admitted that after the finding on the objection raised was given by respondent No. 4 each of the members went into the compartment where the ballot boxes were lying and cast his vote. The votes were counted and in declaring the result the vote of Abdul Hafiz was considered to be a bad vote. The result of the election was declared and the petitioner was declared elected. The argument advanced by the learned counsel for the respondents is that under rule 6 clause 3 (a) the Presiding Officer was to issue to each member of the Union Committee a ballot paper separately and that after the member had received the ballot paper he was to proceed to the compartment where the ballot boxes were placed and mark a cross on the ballot paper against the name of the candidate for whom he wished to vote and thereafter drop the ballot paper in the ballot box. The contention raised is that rule 6 clause 3 (a) clearly envisages that the members would be given a ballot paper one after the other and that no member could be given a ballot paper unless the one who had been given the ballot paper previously had actually proceeded to the compartment where the ballot boxes were lying and cast his vote. The giving of the ballot papers to all the members at one and the same time was, according to the learned counsel, in clear violation of what was contained in the rule quoted above. The learned counsel for the petitioner, however, has repelled the argument by saying that it is not provided in rule 6 clause 3 (a) that each of the members will be given a ballot paper separately one after the other. Rule 6 clause 3, merely postulates that each of the members who has been given a ballot paper will go to the compartment where the ballot boxes were kept for casting his vote separately. The provision contained in rule 6 clause 3 was meant only to ensure secrecy. The Learned counsel for the petitioner also contended that the giving of the ballot papers to all the members at one and the same time, even if it was an irregularity, was not an irregularity which materially affected the result of the election. Mr. Suhrawardy the learned counsel for the petitioner, has relied upon the following cases in support of his view:-- (1) Muhammad Mohsin Siddiqi v. Chief Judge, Karachi Small Causes Court P L D 1956 Kar. 203. (2) Vashist Narain v. Dev Chandra A I R 1954 S C 513. (3) Basdeo Prasad v. Brahma Nand A I R 1955 Pat,

368. The learned counsel for the respondents argued that the cases relied upon by Mr. Suhrawardy did not apply to the facts of the present case in that the provision under which the appeal against an election had to be filed previously was a different one from the provision under which the appeal is filed against elections at present. They have in support of their contention referred to section 17 of the City of Karachi Municipal Act, 1933. Section 17 (1) of the Act reads as under: "17 (1) If the order of the Chief Officer us to the validity of the nomination of any candidate for election as a councillor as to the qualification of any person declared to be elected a councillor, is disputed, or if the validity of any election is questioned by reason of material irregularity in the election proceedings, bribery, corruption, personation, treating, under influence or any other than materially affecting the result of the election, any person whose name is entered in the register of electors for the ward or the community concerned may, at any time within ten days after the result of the election has been declared, apply to the Judge of the Karachi Small Causes Court for an adjudication in the matter. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his applica tion all candidates who, although not declared elected, were duly nominated for election to the seat in question and proceed against the candidate who has been declared to be elected." According to the learned counsel for the respondent what was required under section 17 of the city of Karachi Municipal act, 1933 was that the irregularity on which the election was question was to be a material irregularity arid that the material irregularity complained of should materially affect the result of the election. Rule 10 of the Karachi Municipal Committee Rules, 1960, under which the appeals have to be filed against election, does not provide that the material irregularity should be one which should also materially affect the result of the election. That being the situation the learned counsel urged that the cases quoted and relied upon by Mr. Suhrawardy, the learned counsel for the petitioner, did not apply to the facts of the present case. What is required under rule 10 of the Karachi Municipal Committee Rules, 1960, is that the irregularity complained of, on the basis of which election is sought to be set aside, should be a material irregularity only.

6. We have given our best thought to the arguments advanced by the learned counsel. We are of the considered view that the provision contained in rule 10 of Karachi Municipal Committee Rules, 1960, although in words, may be, different from section 17 E of the City of Karachi Municipal Act, the purpose of these two sections, remains the same. What is required to be shown for the purpose of rule 10 of the Karachi Municipal Committee Rules for an election to be declared void is that a material irregularity has been committed. The words "material irregu larity" are quite significant. In the first instance it should be an irregularity and that the irregularity should be a material one. The operative part of the order dated 6th August 1960, passed by the Administrator of Karachi after the narration of facts, reads as under "The procedure adopted by the learned Presiding Officer appears to be defective as we have noticed. It gave rise to some confusion and an objection was raised which necessitated an enquiry. The enquiry took more than two hours and during this period the ballot papers remained with the voters who were sitting together in the room. The possibility of exerting pressure by one member on the other and canvassing cannot, in such circumstances, be excluded. There is evidence to show that one of the ballot papers was marked by the member soon after it was issued to him and before he went in to cast his vote. There is no guarantee that other ballot papers were not marked by the voters during the period the Presiding Officer was busy holding the enquiry. On the other hand it creates a reasonable suspicion that some of the other voters might have done the same thing. Consequently, I hold that this election has not been free from undue influence or pressure." The order reproduced above does not indicate that the learned Administrator has held that any material irregularity has been committed. In fact he has not even held that an irregularity has been committed. The learned Administrator had recorded the statement of the respondent No. 4, who was Presiding Officer at the time of election, who in his statement stated that Rule 6 clause 3 (a) and (b) authorised him to distribute the ballot papers amongst all the members at one and the same time. It may be that the learned Administrator may have accepted this view of the respondent No. 4 and therefore not given a finding that the proce dure adopted by the respondent No. 4 in giving the ballot papers to all the members at one and the same time was irregular. The learned Administrator has considered the giving of the ballot papers to all the members at one and the same time as being merely not proper. All that the learned Administrator has in his order said is that: "the procedure adopted by the learned Presiding Officer appears to be defective as we have noticed. It gave rise to some confusion and an objection was raised which necessitated an enquiry." The learned Administrator has considered the procedure as only defective resulting in confusion which gave rise to an objection being raised. The defect in the procedure which gives rise to a confusion does not necessarily amount to an irregularity much less a material irregularity as visualized in Rule 10 of the Karachi Municipal Committee Rules. The learned counsel appearing for the Administrator of Karachi conceded that there was go finding given by the learned Administrator that the procedure adopted was irregular or materially irregular. 1t is clear that the learned Admi nistrator has not set aside the election by holding it to be void on the ground of material irregularity. The last portion of the order makes it more clear when he says "consequently, I hold that this election has not been free from undue influence or pressure". The election has obviously been held to be void on account of not being free from undue influence or pressure.

7. The other ground on which the learned Administrator could hold the election to be void was, as has been stated above, "any sufficient reason to be recorded". Sufficient reason, accord ing to the learned counsel for the respondents, is the undue influence or pressure that has been held by the learned Administra tor to have been exercised in the election. The learned counsel for the respondent urged that this finding of the learned Adminis trator that the election was void on account of undue influence and pressure was based on a certain set of facts and that the finding on those facts could not be disturbed on a petition for a writ of certiorari. We find ourselves unable to accept the contention. It was decided in a case decided by the Division Bench of this Court and reported as Mohammad Mohsin Siddiqi v. Chief Judge, Karachi Small Causes Court (P L D 1956 Kar. 203) that certiorari to quash the decision of a tribunal lay, not only where the tribunal had exceeded its jurisdic tion, but also where an error of law appeared on the face of the record. The decision of the Division Bench was based on a case in R. v. Northumberland Compensation Appeal Tribunal (All E L R 1951, Vol. I, p. 263) where it was held: "As the tribunal had stated on the face of the order the grounds on which they had made it and as it appeared that in law those grounds were not such as to warrant the decision to which they had come, certiorari would issue to remove the order into the High Court to be quashed." There is also a case reported as Re. Gilmore's Application (All E L R 1957, Vol. I, p. 796) in which it was held: "The tribunal, by giving an extract from the specialist's report, had made the report a part of the record, and, as the tribunal came to a conclusion which could not reasonably have been entertained by them if they had had proper regard to Re. 2 (5) of the Regulations of 1948, they had fallen into error in point of law, which was thus apparent on the face of the record." The issue as to the cases where writ of certiorari can be issued, has finally been set at rest by our Supreme Court in a case as Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437). It has been held in this case as under: In certiorari the initial question is whether the official whose action is called in question was acting under a law. If he was not, the act was that of a mere public agent and action at law and not certiorari is the remedy. If, however, a public func tionary has acted in exercise of a statutory authority, then the question to be determined is whether he was the sole judge of facts and of the necessity, expediency, advisability or reasonableness of the action to be taken. If the reply be in the affirmative, he was not acting judicially and his discretion is not liable to judicial review. But if he was under an obligation to find the facts in a judicial or a specially prescribed manner, a material departure from the procedure which has adversely affected the rights of a party would render his action liable to judicial review, even if, on the facts to be so found, the action to be taken depended on his discretion. These cases are distinguishable from those where whatever be the nature of the Tribunal, the order made is illegal in the sense that the Tribunal was not competent to make it or when on the facts found, whether subjectively or objectively, the order in question could not have been made or an order should have been but has not been made or where the Tribunal suffers from lack of jurisdiction. In all such cases, the order is liable to review by a superior Court in writ proceedings provided, it has affected any right of the petitioner for a writ. What has to be seen in all such cases is the provision of the statute under which the action was taken and it is on a true construction of that provision in the context of the statute that the answer to the question under discussion will primarily depend. This, however, is not laying down a precise definition of judicial or of administrative action; all that is meant is that the factors mentioned are important considerations for a correct determination of the question." It has been clearly laid down in this case that if the Tribunal was under an obligation to find the facts in a judicial or a specially prescribed manner, a material departure from the procedure which has adversely affected the rights of a party would render his action liable to judicial review, even if, on the facts to be so found, the action to be taken depended on his discretion. It has also been held that when on the facts found, whether subjectively or objectively, the order in question could not have been made or an order should have been but has not been made or where the Tribunal suffers from lack of jurisdiction the order is illegal. What has happened in this case is that the learned Administrator considered the defect in the procedure as a cause for confusion and consequent raising of objection. The learned Administrator has gone further and held that on account of one member having signed the ballot paper in presence of others the possibility of exercising pressure by one member on the other and canvassing could not in the circum stances, be excluded. He has held: "There is no guarantee that other ballot papers were not marked by the voters during the period the Presiding Officer was busy holding the enquiry. On the other hand it creates a reasonable suspicion that some of the other voters might have done the same thing." The finding of the learned Administrator therefore of the election being result of undue influence or pressure is based on a mere suspicion unfounded by any evidence on record before him. It was no body's case that canvassing was done in the case of other members. It was also nobody's case that undue influence and pressure was brought on any member. The order of the respondent No. 4, which has been brought on record shows that an enquiry was held in respect of Abdul‑Hafiz having signed his ballot paper before he went in the compartment where the ballot boxes were kept. Even this order does not show that undue influence or pressure was brought on him. All that was contended before him was that Abdul Hafiz had signed his ballot paper on somebody's instigation or pointation. The result of the enquiry before respon dent No. 4, however, was that Abdul Hafiz had signed the ballot paper on his own and had not done so on the investigation or sugges tion of anyone else. It was also not contended in appeal before the learned Administrator that members other than Abdul Hafiz were influenced or that any pressure was brought to bear on them. The learned Administrator therefore had no evidence before him for holding that members were influenced or pressure was brought to bear on them to vote in favour of a particular candidate. The learned Administrator has based his conclusion merely on suspicion and on an inference which was unwarranted by the evidence on record. In such a case where the conclusion of any tribunal is based on no evidence and is purely founded upon the suspicion without there being any suggestion by any of the parties, the finding would be one which would be construed to be an error apparent on the face of record justifying the issue of a writ of C certiorari. We are therefore of the considered view that a writ of certiorari can be issued. The finding of fact, if it is based on mere suspicions, is no finding of fact and it almost tantamounts G to a decision being an arbitrary one. The power of issue of a writ. of certiorari in such cases clearly vests in this Court and we think that the present case is the most appropriate case in which a writ of certiorari can be issued. We, therefore, issue the necessary writ and quash the order passed by the learned Administrator on 6th August 1960 holding the election to be void. We allow the writ petition with costs. A H. Petition allowed.