P L D 1958 Supreme Court (Pak (PLP)

CORNELIUS, J:‑This appeal is brought before this Court by special leave granted to one Sai Muhammad to appeal against an order of a Division Bench of the West Pakistan High Court, refusing to Sai Muhammad a writ of mandamus directed to the Government of West Pakistan in respect of the election to the District Board of Sheikhupura from Circle No. 9 (Ajnianwala) held in January 1955. It was stated in the petition that according to the polling Programme, polling was to take place for Circle No. 9 on the 24th, 25th, 26th, 28th and 29th January 1955. The poll was closed each day at 3 p.m. On the 29th January 1955, when the polling was in progress, it was found that the ballot papers at station Keelay were exhausted. This discovery was made at five minutes past two in the afternoon. A massenger was sent to Sheikhupura to fetch a further supply of ballot papers, but these only became available shortly before 4 p.m., and the presiding officer was unable to act under rule 37 of the Punjab District Board Election Rules because of objection by Sai Muhammad's rival candidate Bahawal Sher that the time for polling was exhausted at 3 p.m., on the last date of polling, viz., 29th January 1955. By rule 37 it is provided inter alia that if the polling on any day is commenced for any reason later than the appointed hour, or if there is disorder at the polling station, or if for any other reason the presiding officer has deemed it necessary to stop the polling, " the presiding officer shall keep the polling station open for a further period equal to the period that elapsed between the hour appointed for the opening of the polling station and the hour at which it was actually opened or the time during which polling was stopped as the case may be". In his petition, Sai Muhammad declared that when the ballot papers ran out, there were still 200 of his voters waiting to cast their votes and that his rival Bahawal Sher had exhausted his votes. In his reply, Bahawal Sher declared that he would have secured at least fifty percent of the votes which might have been cast between 2‑0 p.m. and 3‑0 p.m., had there been ballot papers, and therefore the result of the election was not materially affected. It may be mentioned that Bahawal Sher furnished exact figures in his reply of the number of votes that were to be polled on the 29th January 1955, viz., 988, and the number, which was actually polled, viz.,

698. The further facts may be conveniently stated in the words of the judgment under appeal: ‑ " This unusual thing happened on the 29th January 1955. There was an inquiry under Rule 69 as though any sort of inquiry could be conducted under Rule 69 because it mentions the word "inquiry" but there was no inquiry into the extra ordinary absence of foresight in a case where the total member of voters must have been known to the presiding officer from the printed list. However, there was an inquiry, and the Government thereupon invalidated the previous proceeding under the proviso to sub‑rule (4) of rule 3‑A very attractive proviso, I should say, because if the previous polling did not suit‑ your candidate you could just efface it And God said let there be no light, and to! there was darkness " Fresh elections were announced to be held from the 12th to the 16th March 1955, but these were stayed by a Writ Petition, which Bahawal Sher instituted. Next, the writ jurisdiction having been suspended as a result of Maulvi Tameez‑ud‑Din's case (PLD 1955 F C240) the Government again fixed certain dates in June 1955 for the election to be held but postponed it in deference to the Constituent Assembly Elections, which, it is alleged, necessitated some bargaining. These little drops of water in the District Board make the mighty ocean of West Pakistan. Finally, on the 16th December, 1955, the Govern ment decided, in consultation with section 19 of the General Clauses Act, to rescind the previous order and to continue the election only from the point where the ballot papers were exhausted. It is against this order that the present writ petition seeks a remedy. This time the petitioner is the rival candidate, Sai Muhammad." Rule 69 which has been referred to in the above extract lays down that the Government may of its own motion direct an inquiry to be held into the conduct of an election if there is reason to suspect that a corrupt practice or material irregularity has been committed. The learned Judges in the concluding portion of their judgment have given three reasons for holding that the enquiry which was ordered by the Provincial Government into the present case was not an enquiry under rule

69. The first is that rule 69 contemplates a completed election, and the present election was never completed. The second is that the enquiry held was not conducted in the manner of an election petition as, is specifically required by rule

69. The third reason is that the matter being one of irregularity in the conduct of the election, since the election had been inconclusive in the sense that the polling led to no final result, it could not be said that any effect, much less a material effect, had been produced upon the result of the election. With these reasons we are in agreement, and the question remaining is the consideration of the application of rule 3 (4). This may be a convenient point at which to state our opinion that the reference to the Deity, contained in a parodied quotation from Scripture, might very well, and with complete propriety, have been omitted by the learned Judges. The application of rule 3 (4) was discussed in considerable detail later in the judgment and it appears to us that the conclusions there reached were in no way aided by this particular reference. The case was one inter partes, on a clearly secular basis confined to a few mundane rules. Its complete and proper disposal could be effected without the need of mentioning the Almighty or His works. On a somewhat lower plane, the other reference of doubtful relevancy, viz., to the composition of West Pakistan, was also one, which could, with greater appropriateness, have been avoided. Where the question is one of the legal validity of certain actions of Government, which stand or fall in proportion to the extent to which they are found to be in compliance or otherwise with the words of written legal instruments, it cannot be of benefit to canvass the political purpose underlying such actions. Where Government is practised in the parliamentary form, it is natural that governmental actions should have a political aspect, and consequently it is an easy error to attribute to an action, by reference to some or a few of its incidents, a political motive, in the sense that a person or persons was or were actually assisted whom it was to the advantage of the Government to assist. The correct attitude in estimating the actions of Government is indeed i that they must be regarded as having been taken bona fide until and unless the contrary is established. It is, of course, only in a rare case that a question of good faith underlying a governmental action can be raised with relevancy before the Courts, which are most frequently concerned with the extent to which such actions are covered by the terms of statutory instruments. But where the question arises, it is entirely proper and greatly in the public interest that the presumption of good faith should be raised in favour of the action. The observations made in this case might be thought to convey the contrary impression. Rule 3 of the Punjab District Board Election Rules deals comprehensively with the election programme. It is made' the duty of the Election Officer, Local Bodies to frame this programme for every election to a Board. The programme is required to specify the date or dates for performance or completion of each one of the processes by which an electoral roll is prepared in preliminary form, and thereafter is published and revised after claims and objections have been invited and received; dates have to be fixed for further revision of the roll and its republication after final correction dates have to be fixed also for filing of nomination papers in response to a notice to be published, and for the scrutiny of such papers as well as for withdrawal of nominations so as to ascertain a final list of candidates who will go to the poll ; finally, the list of polling stations is to be published, and the dates upon which the poll is to be held at each polling station, as well as the dates for counting of the ballot papers and for publication of the result of the election. By sub‑rule (4), the following provision is made: ‑ " The Provincial Government or Election Officer, Local Bodies, with the sanction of Government, may, by an order amend, vary or modify the election programme at any time: Provided that unless the Provincial Government otherwise directs, no such order shall be deemed to invalidate any proceeding taken before the date of the order." Briefly, the positions taken by the contesting parties in the High Court were as follows. For the petitioner Sai Muhammad, it was argued that under the sub‑rule quoted above, the Provincial Government had power to set aside the election in its entirety, but the rule did not provide power to the Government to keep intact whatever had gone before, and to continue an election from the point at which it had been closed. On the other hand, the Provincial Government claimed that the sub‑rule gave it power to invalidate the whole or any part of the previous proceedings, or in the alternative to preserve those proceedings and to continue them to the point of completion. Power was also claimed under section 19 of the General Clauses Act, 1897 to rescind an order made under sub‑rule (4) and to replace it by a. different order. This claim was necessitated by the fact that the first decision of the Provincial Government taken in February 1955, was that the election was void and it should be held over again. This order was subsequently rescinded, and it was directed that election should be continued from the point, which had been reached when the polling came to a stop on the 29th January 1955. The position taken by Bahawal Sher was that the proper course, for the Provincial Government was to declare the result of the election on the basis of votes cast up to 3 p.m., on the last date of polling, ignoring the fact that through lack of ballot papers a certain number of votes could not be cast. The position in this respect might have been corrected by an order of the presiding officer under rule 37 made on the very day, viz., the 29th January 1955, but after that day, no amendment of the polling programme was possible, and the election was over, so that nothing remained to be done except to count the votes and declare the result. It would be open to the defeated candidate to challenge the result by means of an election petition, in which one of the grounds might have been that the failure to provide ballot papers for voters who were present and anxious to vote during the last hour of the polling was a material irregularity. In the alternative, it was urged for Bahawal Sher that the order directing that the election should be completed was, in the circumstances, a correct order. The learned Judges upheld the final contention, namely that the order declaring that the proceedings in the election should be completed was valid in law, and that an order directing that the election should be held over again was not within the competence of the Provincial Government. The grounds upon which this decision of the learned Judges is based are the following. They had held firstly that the election programme could not be altered retrospectively. With respect to several of the matters included in the election programme such as the preparation of the electoral roll and its validity, the filing of nomination papers and the ascertainment of the candidates who are finally to go to the poll, and the ultimate processes of polling of votes and the subsequent counting and declaration of the result, there are specific modes provided by the rules whereby correction could be obtained by proceedings in proper form taken in due time. Therefore, the learned Judges did not 'think it possible that by rule,3 (4), the Provincial Government could have been invested with power to invalidate everything done in compliance with an election programme unilaterally and eyen without an enquiry. They proceeded to record their view as to rule 3 (4) in the following words: ‑ " Consequently, the order of Government dated the 18th of February 1955, invalidating previous proceedings was not warranted by the proviso to rule 3 (4), under which it purports to have been made. The election programme having been disturbed at 2 p.m., on the 29th of January 1955, the date of polling could be altered under sub‑rule (4) in respect of what remained of the polling. What the presiding officer could do immediately under rule 37, the Government can do after an interval. We do not say that the interval can be six months or a year. Normally, it will not be long, but if circumstances come into being‑a stay order, for instance‑which make immediate polling impossible, we will not say, without being referred to any rule, that just because the integrity of the election is broken, there should be a fresh election. And there is no rule to which we can refer for a fresh election except -perhaps rule 69." ' The remainder of the judgment is concerned With the applicability of rule 69, which point has already been considered in the foregoing portion of this judgment. Holding that the final order of the Government was not contrary to the Rules, and that the earlier order of the 18th February 1955, was unlawful, the learned Judges dismissed Sai Muhammad's petition. The question, which arose for determination in the case was a twofold one. Firstly, the Court had to decide what was the duty, which the Government had to perform in relation to the election in question. Secondly, it had to be decided whether the manner in which the Government acted was, in the circumstances, a performance of that duty in accordance with law. It is perfectly clear that the duty of the Government was to carry out the election in accordance with the election programme, from the start to the finish, so far as was humanly possible. The learned Judges were doubtful whether the principle of rule 37 could be extended to the provision of extra time after an interval of as much as "six months or a year", but they were unable to find any rule which required that "just because the integrity of the election is broken, there should be a fresh election". In our view it could be urged with some force that once the power of the Presiding Officer under rule 37 had been exhausted, the possibility of the remaining votes being cast in the same election was excluded, in the absence of any rule enabling the Government to make a direct order to meet the case, and therefore the duty might have been best performed by declaring the election closed and proceeding to count the votes and declare the result. It appears from what is said by Bahawal Sher in his replication that the exact number of votes which were to be cast on that date and the exact number of votes, which had been cast were known. In fact Bahawal Sher had given the figure of the votes, which remained to be cast, viz.,

290. If the result of the poll taken up till. 2‑05 p.m., on the 29th January 1955, showed a balance in favour of one candidate not exceeding the figure of 290 votes, the defeated candidate might in an election petition, (assuming that he chose to institute an election petition) have pleaded that there was an obvious irregularity and that it was of a nature calculated to affect the result of the election. On the other hand, if the balance of votes was in excess of 290 that particular ground of attack upon the result of the election might not have been available. In any case, the announcement of the result would have brought the election to an end and by that means rights would have accrued to the interested parties to challenge the result by election petitions and if they could establish their contentions, to have a different result declared, or to obtain an order for a fresh poll. The very great delay, which has occurred in returning a representative to the District Board from Circle No. 9 in the Sheikhupura District, would thus have been avoided. But that is not to say that the action taken by the Provincial Government on the 16th December 1955, is unlawful. The view taken by the learned Judges namely that action, which is open to a Presiding Officer under rule 37 on a particular day might validly be taken by the Provincial Government, by way of modification of the election programme, after an appreciable interval of time is an arguable one, yet it is not necessary to go to that length for the purpose of refusing to Sai Muhammad the writ which he sought. It is urged that the conditions, which existed on the 29th January 1955, when the polling came to a premature end can never be reproduced. Even if it be correct that only 290 votes remained to be cast, and if it be possible to confine the balance of the voting to these 290 persons, yet it is difficult to suppose that from along these 290 voters, the same voters will be ready, able and willing to vote on the date now fixed as at the time when the election was abruptly stopped. Any attempt to reproduce the precise conditions which prevailed at 2‑05 p.m., on the 29th January 1955, at polling station Keelay is, of course, a counsel of perfection. The circumstances are such that the constituency will have to be content with any lawful expedient of a practicable nature, which has the effect of implementing and bringing to a conclusion, the duty of the Government to complete the election from this constituency. It is not to the interest of the constituency or to that of any person who is anxious that the constituency should be duly represented in the District Board, to interfere with any action, which the Provincial Government might lawfully propose to take for the implementation of their duty. Already by the proceedings, which have been taken in the Courts, in the present case, a delay of over three years has been allowed to supervene. We feel no hesitation in saying that the expedient adopted by the Government namely to confine further polling to the votes which according to the record remained uncast when the polling ended prematurely on the 29th January 1955, is a lawful expedient, and one which the High Court was perfectly right not to interfere with. Once a result is declared, the parties will have ample opportunity to question it on all possible grounds by means, of election petitions. The petition of Sai Muhammad was rightly dismissed by the High Court and we accordingly dismiss this appeal, but make no order as to costs. A.H. Appeal dismissed.