P L D 1967 Karachi 196 (PLP)

QADEERUDDIN AHMED, J.‑The Petitioner has moved this Court under Article 98 of the Constitution to obtain a finding that the declaration contained in Annexures A and B to the effect that Respondent No. 2, Lal Mohd. Din Yusuf, was elected as the Chairman of Union Committee No. 4, Hyderabad City, is without lawful Authority and of no effect, as well as to obtain directions of this Court to Respondent No. 1 to declare the Petitioners as the elected Chairman of the Union Committee.

2. The relevant facts which form the background of this Petition are that the Petitioner and Respondent No. 2 were candidates for the Chairmanship of Union Committee No.

4. Hyderabad City. The election was held on the 18th of January 1966. In all 16 votes were cast, out of which 7 were held by Respondent No. I who was the Presiding Officer, to be in favour of Respondents Nos. 2 and 4 to be in favour of the Petitioner. One ballot paper was missing, and 4 were held to be invalid.

3. The contention of the Petitioner is that the ballot papers which have been held to be invalid were valid and were cast in favour of the Petitioner. They have, therefore to be counted in his favour, and as a result of it he was entitled to be declared elected as the Chairman.

4. The Petitioner presented this Petition on the 20th of January 1966. It came on the 26th of January 1966, for admission before Bench of this Court, which called for a report from Respondent No. 1, who submitted his report contained the following defence "The actual position was that while counting votes cast in favour of each candidate, some votes were doubtful as the crosses were not marked against the name of any candidate as required by Role 3, but were in between the names of both the candidates. The Presiding officer, therefore, after hearing both the candidates allowed two votes to the Petitioner and rejected four as those were invalid for not displaying proper intention of the voter in favour of any candidate." After the receipt of the report, the matter came before us on the 11th of February 1966. We called upon counsel for the Petitioner to satisfy us as to show this Petition was maintainable is view of the fact that the first relief was obtainable by finding an election Petition. Counsel replied that the second relief could not be granted by the Election Tribunal because Rule 7 of the, West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 was as follows "(1) No election of a Chairman shall be called in question kept by a petition presented to the Controlling Authority within thirty days of the declaration of the result. (2) The Controlling Authority may after such enquiry as may be necessary, uphold the election of the Chairman, or declare the election as void for any material irregularity, or any sufficient reason to be recorded. (3) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules,"

5. Counsel was right in view of sub‑rule (2) of the above rule but the sub‑rule raised the Additional question as to whether the Petitioner could ask for a declaration from this Court that he was elected in the absence of anything in the rules providing such a remedy. Counsel requested us to grant him time to meet our objection. We accepted the request.

6. On the 12th of February 1566, the Petitioner filed an election petition for a declaration in terms of the above quoted rule that the election of Respondent No. 2 be declared to be void and that a fresh election be held.

7. On the 15th of February 1966, this petition again came before us and counsel for the Petitioner argued that the first relief even if granted by the Election Tribunal was not adequate because the Petitioner was desirous of getting the second relief which, in counsel's view, he could claim in terms of sub‑rule (5) of Rule 5 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1961 The rule is as follows : "(1) Votes for the office of the Chairman shall be given by ballot. (2) The Presiding Officer shall provide a ballot box which shall be shown empty to the members, and thereafter nailed or locked, and placed in a separate compartment. (3) The Presiding Officer shall issue to each member of the Basic Democracies a ballot in the form appended to the" rules, Each member shall after taking the ballot proceeded to 'the compartment where the ballot box is kept ; make a cross on the ballot paper against the name of the candidate for whom he wishes to vote and thereafter drop the ballot in the ballot box. If a member cannot read or write, he may request the Presiding Officer to assist him in the marking of the ballot paper. (4) When the ballots have been cast, the Presiding Officer shall open the ballot box in the presence of the members, and count the votes cast in favour of each candidate. If there is any doubt or dispute about the marking of a ballot paper, the Presiding Officer may decide the issue, after holding such summary enquiry on the spot as may be necessary. (5) The candidate obtaining the highest number of votes shall be declared by the Presiding Officer to have been elected as the Chairman. If for the purposes of the 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."

8. We found that counsel's contentions were prima facie not without force, and that the report of Respondent No. 1 was of no help to us in that respect. We, therefore, admitted the petition to regular hearing and issued notices to the respondents as well as to the Additional Advocate‑General .

9. On the 19th of February 1966, a notification was issued by the Governor of West Pakistan amending the Municipal Committees Vice‑Chairman (Election and Power) Rules, 1960 so as to authorise the Provincial Government to specify dates for the election of Vice‑Chairman. Moreover, under the amended rules the date for filing nomination papers was fixed to be the 28th of February 1966. The qualification for becoming a Vice‑Chairman was that the candidate be the Chairman of a Union Committee. The Petitioner therefore, applied to this Court under Order XXXIX Rules 1 and 2, and section 151, C. P. C. for directions that his nomination paper may not be rejected by the officers concerned until the final decision of this petition ; alternatively, the date for firing the nomination papers, their scrutiny and election be postponed till the decision of this Petition.

10. On the 24th of February 1966, Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 was amended as follows "

7. Election Petition. (1) No election of a Chairman shall be called in question except by an election petition presented to the Controlling Authority or such other Officer as Government may appoint fn this behalf within ninety days of the declaration of the result. (2) The election petition under sub‑rule (1) may be presented by any member of the Basic Democracy, and in the election petition, the Petitioner may claim any of the following declarations. (a) that the election of the returned candidate is void, or (b) that the election of the returned candidate is void and that the Petitioner or some other person has been duly elected ; or, (c) that the election as a whole is void. (3) The Controlling Authority' or the Officer appointed by Government under sub‑rule (2), as the case may beg may, after such enquiry as it or he may consider necessary, uphold the election, or award any declaration prayed for under sub‑rule (2), for any material irregularity or any other sufficient reason to be recorded. Explanation‑‑For the purposes of this rule 'material irregularity' means any non‑compliance with the provisions of the order, or these rules which materially affects the result of an election. (4) Where an election is held to be void, a fresh election shall be held in the manner provided by these ruled." By virtue of the above amendment the Election Tribunal has been empowered to grant the second relief which the Petitioner has asked for in this petition, and the time for submitting an election Petition has been increased from 30 to 90 days. The Petitioner could thus amend his election petition, or file a new one for getting the relief.

10. The Petitioner's application under Order XXXIX, rules 1 and 2 and section 151, C. P. C. came before us on the 28th of February, 1966 in the presence of the Additional Advocate General who appeared for respondent No. 1 and opposed it. He informed us for the first time that the Petitioner had filed an election Petition, and that rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 had been adequately amended to enable the Petitioner to obtain from the Election Tribunal the second relief which he desires to get in these proceedings. In view of these disclosures we dismissed the interlocutory application of the petitioner. The considerations continue to be important in these proceedings because, according to the Additional Advocate‑General, they affect the maintainability of this Petition.

11. We have Neared counsel for the parties as well as Messrs Khalid M. Ishaque and S. A., Nusrat at considerable length. Most of our time was taken by Messrs Khalid M. Ishaque and S. A. Nusrat on the one hand and by the Additional Advocate‑General on the other. Messrs Khalid lshaque and S. A. Nusrat, explained and analysed the judgment of the Supreme Court in Mian Jamal Shah v. Election Commission (PLD1966SC1). We have .listened with keen interest to the exposition of the case by than because the contention of the Additional Advocate‑General and Mr. K. A. Ghani was that owing to the view expressed by the Supreme Court in that case, no petition for questioning the result of any election was maintainable under Article 98 of the Constitution. We are grateful to Mass's Khalid M. Ishaque and S. A. Nusrat for appearing amicus curiae and for the trouble they have taken in explaining and analysing Mian Jamal Shah's case to us, although it has now become unnecessary to refer to their exposition and analysis because of the judgment of the Supreme Court given in Akbar Ali v. Razi‑ur-Rahman (P L D 1966 S C 492).

12. The Additional Advocate‑General on the other hand took a long time. for producing a copy of a judgment given by five Judges of the High Court of East Pakistan on the 11th of January 1966, in Seraful Haque v. S. D. O., Chandpur Petition Nos. 507 to 510 of 1966. ‑He has at last produced on the 1st of June 1966, a copy of it as published in (P L D 1966 Dacca 331). We were informed that it is under appeal and that the appeal has already been heard by the Supreme Court but judgment has been reserved. The Additional Advocate -General suggested that we should wait for the decision because if the Dacca view was upheld by the Supreme Court then on the same token the amendment of Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 could be said to be invalid and consequently the objection based on that amendment to the maintainability of this petition would lose its force. Here we should note that the Petitioner has been impatient to get his petition decided quickly because, according to him, he has been losing chances of participating in several, elections. He, however, did not want to give up his chance of attacking the validity of the amendment of Rule

7. In serving the both objects his counsel, Mr. A. S. Pirzada, displayed superior advocacy by taking the stand that he did not desire this Court to give any final opinion on the invalidity or otherwise of the amendment, but would be content to argue that the remedy provided by the amended rule was uncertain therefore, not adequate.

13. The above discussion will show that we are no longer required to interpret Mian Jamal Shah's case, nor to decide as to whether the amendment of Rule 7 is valid or not. We have to decide whether this petition is maintainable in view of‑ (i) the above‑mentioned amendment of Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 ; (ii) the omission of the Petitioner to amend his election petition or to file a new one ; (iii) the power conferred on the Presiding Officer under sub‑rule (4) of Rule 5 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 to decide all issues arising from any doubt or dispute about the marking of a ballot paper. If the result of our examination of these objections is that this petition is maintainable then we have to decide‑whether the four ballot papers which have been held by the Presiding Officer to be invalid ought to be counted in favour of the Petitioner.

14. The first and second objections can be conveniently dealt with together because the second objection as to the omission to amend or to file a new election petition can have force only if the first objection prevails and the finding is that the amendment has provided an adequate remedy for the Petitioner; otherwise it is immaterial. We think that the amendment has not provided adequate remedy for the Petitioner because it is not retrospective and it is possible to convincingly argue that it does not apply to the election that is in dispute because it was a past and closed transaction when the amendment was made. Moreover, neither an amendment of the election petition which the Petitioner has already filed, nor the institution of a fresh election petition to ask for a new relief are free from substantial doubts and controversies because the relief which would be his aim, can be regarded as inconsistent with the relief that he has already asked. He has already asked for a fresh election but would now like to be declared validly elected.

15. In the above circumstances he has neither a satisfactory right to amend the pending election petition nor to file a new one. By way of some analogy we may refer to the view expressed in Muhammad Mansur Rehman v. Province of East Pakistan (P L D 1963 Dacca 736) that alternative discretionary remedy by way of revision was as a general rule not a good ground for refusing mandamus and to the view taken in Maulvi Nuruzzaman Chaudhry v. Secretary, Education Department (P L D 1966 Dace 187) that the remedy of appeal‑‑ "conditioned by the fact that the appellant has to make over possession before filing the appeal . . is not an adequate remedy within the meaning of Article 98." The doubts and controversies that are involved in attempting to amend the pending election petition and that are involved 'in the maintainability of afresh election petition do, in our opinion render those attempts inadequate remedies for purposes of Article 98 of the Constitution.

16. The third objection is founded on the view that, in terms of sub‑rule (4) of Rule 5 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, the Presiding Officer is the authority to decide all issues arising from any doubt or dispute about the marking of ballot papers ; therefore his decision in this regard whether right or wrong is in exercise of lawful authorities and not open to question under Article 98 of the Constitution. This objection can be answered directly by referring to the observations of the Supreme Court in Akbar Ali v. Razi‑ur-Rehman. Their Lordships have observed : "If an election authority or tribunal acts in this fashion (i.e. wantonly), whether under the National and Provincial Assemblies Act or the 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.' Further : "The decision in Mian Jamal Shah's case is accordingly not to the effect that an untenable interpretation of law by the Commission which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible of interference by the High Court." The above quotations show that interference by the High Court under Article 98 of the Constitution with the decisions of the Presiding Officers re. doubts and disputes as to the marking of ballot papers is lawful provided the decision in question is (i) wanton, or (ii) amounts to excess of jurisdiction, or (iii) to failure to exercise jurisdiction. This petition is therefore, maintainable for examining the decisions of the Presiding Officer from this angle.

17. Coming to the above conclusion we have now to examine whether the rejection of four ballot papers by the Presiding Officer falls in any of the three categories of errors or not. The four orders of rejection are as follows : "S. No. I claims that the vote has been caste in the space meant for him and therefore it be allowed to him and S. No. 2 claims that the space is meant for him. After hearing both the parties. I feel that the cross does not display the proper intention of the voter. Hence it may be treated as invalid." "Each of the parties claim the vote for himself on the plea that it is in the space meant for him, but I feel that the cross does not display the intention of the voter and order that it be treated as invalid." "Each of the candidates claim the vote for himself, but I feel that the cross does not display the intention of the voter. It is therefore ordered that the vote be treated as invalid." "Each of the candidates claim the vote for himself on the plea that the cross is in the space for him, but I feel that it does not display proper intention of the voter. It is therefore ordered that the vote be treated as invalid." A comparison of the above reasoning with the relevant provision of law which is contained in sub‑rule (3) of Rule 5 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 see Paragraph 7 above‑shows the irrelevance of the reasoning. The sub‑rule speaks of making a cross‑mark "against" the name of the candidate for whom the vote is cast, but the orders of rejection speak of the relationship of the space that is between two parallel lines with the name of the candidate. On our enquiry as to how the idea of space has been introduced into the argument, the Additional Advocate‑General explained that, according to the form of the ballot paper that is printed in the rules the names of the candidates are intended to be written between two parallel lines, therefore, the space between these lines has been taken by the Presiding Officer to be reserved for the candidate Whose name is written in it. But this is not an adequate explanation in terms of the language of sub‑rule' (3) in which there is no reference to the "space". Moreover, in this case the explanation is irrelevant because in the ballot papers that have been used .in this election the names of the candidates have been written on the lines and not between the lines. This situation has brought out the full significance of the expression "against the name of the candidate", and made the idea of the reservation of space unimportant. The Additional Advocate‑General argued that from this point of view the distance of the cross‑mark from the line on which the name of the candidate is written assumes importance. He suggested that the answer to the question as to which is the candidate for whom the cross mark has been made can be mechanically obtained by measuring the distance of the cross from the lines on which the names are written. But this argument is not sound because by looking at the ballot papers we are convinced that a voter is psychologically more likely to use the space that is above the line for his candidate than below it. The reason is that there is open space above the first line which automatically leads to the belief that the open space below it is meant for another candidate. The voter is thus scarcely likely to vote for a candidate of his choice by intentionally making a cross mark below the line on which the name of his candidate is written. But without this criticism too the argument of the Additional Advocate‑General is incapable of supporting the rationale of the orders of rejection, because the reasoning employed in them is factually misconceived and thus without foundation and wanton. We hold the‑orders to‑be without lawful authority and of no legal effect.

18. A look at the four rejected ballot papers convinces the eye and the mind that the cross‑marks made on them were intended for the petitioner. This is more or less self‑evident and, therefore, not in need of elucidation, yet we have explained above the process of our thought. We, therefore, direct the Presiding Officer to declare the result of the election in terms of sub‑rule (5) of Rule 5 of the West Pakistan Basic Democracies (Electi6n of Chairman) Rules, 1960 consistently with the views expressed by us. K.B.A. Petition accepted.