P L D 1965 (W (PLP)

ANWARUL HAQ, J. ‑ In the election for the Electoral College of Pakistan held on the 3rd of November 1964 the petitioner Karam Dad Khan was declared duly elected from Union Council No. 774, Town Committee, Kahuta, in the district of Rawalpindi. The respondent Muhammad Yaqub filed an election petition, challenging the validity of the petitioner's nomination as a candidate for the said election on the ground that he was a party to a contract for work to be done for the Town Committee, Kahuta. The election petition was heard by the Deputy Commissioner of Rawalpindi, acting as an Election Tribunal, and he held that the petitioner‑ was disqualified from seeking election from one of the electoral units of the Town Committee of Kahuta by virtue of the provisions contained in clause (f) of subsection (1) of section 53 of the, Electoral College Act, 1964 (hereinafter referred to as the Act). He accordingly set, aside the petitioner's election and directed that fresh elections be held in the electoral unit concerned. He also observed that tire petitioner was disqualified from contesting the future election as well. By means of the present petition the petitioner seeks to challenge the correctness and legality of the order passed by the Election Tribunal.

2. Two train contentions have been put forward by the learned counsel for the petitioners: (i) That the nomination paper of the petitioner having been duly accepted\ by the Returning Officer, the matter was finally concluded and the Election Tribunal; had no jurisdiction to go into it; and (ii) that, in any case, the contract to which the petitioner is a party does not fall within the mischief of clause (f) of subsection (1) of section 53, of the Act.

3. We shall first take up the contention regarding the jurisdiction of the Election Tribunal. It may be stated that this question does not appear to have been raised before the Election Tribunal and, therefore, we do not have the benefit of the views of the Tribunal in this behalf. Normally, as held in Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner, etc. (PLD 1964 SC 829), we would have declined to entertain this objection, but as the, petition was admitted on this very point, we proceed to examine it. The subject of the scrutiny of nomination papers is dealt with in section 23 of the Act which may be reproduced here for facility of reference: "Section 23: Scrutiny‑ (1) The candidates, their proposers and seconders, and one other person authorised in this behalf by each candidate may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 21. (2) The Returning Officer shall, in the presence of the persons attending the scrutiny under subsection (1), examine the nomination papers and dispose of any objection raised by any such person to any nomination. (3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary inquiry as be may think fit and reject any nomination paper if he is satisfied that‑ (a) the candidate is not qualified to be a member of the Electoral College for the electoral unit for which he has been nominated; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper; (c) any provision of section 21 or section 22 has not been complied with; or (d) the signature of the proposer or the seconder is. not genuine: Provided that‑ (i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; (ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any' such defect to be remedied forth with; and (iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll: (4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it, and shall, in the cage of rejection, record a brief statement of reasons therefore. (5) A candidate whose nomination paper has been rejected under this section may appeal against the rejection within the prescribed period to such officer as may be specified by the Commissioner; and an order passed on such appeal shall be final."

4. It will be seen that subsection (3). lays down the con tingencies in which a nomination paper may be rejected, and subsection (4) directs the Returning Officer to endorse on each nomination paper his decision accepting or rejecting it, and in the case of rejection he is required to record a brief statement of reasons therefore Subsection (5) provides a remedy to the candidate whose nomination paper has been rejected, namely, an appeal to such officer, as may be specified by the Chief Election Commissioner. This subsection also states that an order passed on such appeal shall be final. This section does not however contain any provision enabling a rival candidate to agitate against the acceptance of an invalid nomination paper. It was contended by Raja Said Akbar Khan, the learned counsel for the petitioner, that the omission of any remedy in this behalf was a clear indication of the intention of the Legislature than the acceptance of a nomination paper by a Returning Office shall be final and accordingly it could not be called into question before the Election Tribunal. We are unable to see any basis in section 23 of the Act for such an argument. Whereas sub section (5) does speak of finality in respect of an appellate order passed regarding the rejection of nomination paper, there is no mention at all of any finality attaching to an order accepting nomination paper. It is true that even without such specie mention regarding finality, the order of the Returning Office accepting a nomination paper would appear to be final in so far as the actual election is concerned, for the law does not provided any immediate remedy against it; but this does not mea that there is any statutory bar to the order being subsequently attacked before an Election Tribunal. No such prohibition can be spelt out of section 23 of the Act which is silent on to point.

5. The Election Tribunal in the present case was set up under section 59 of the Act, and the procedure to be observed by the Election' Tribunal as well as the powers enjoyed by it are contained in section 60, read with rules 35 and 36 of the Electoral College Rules, 1964 (hereinafter referred to as the Rules). Sub section (2) of section 60 of the Act is relevant in the present context and it reads as under:‑ "Section 60 (2).‑Subject to any rules this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit."

6. Rule 35 prescribes the manner of filing an election petition and sub‑rule (5) thereof lays down that "an election petition shall set forth clearly the grounds on which the petition is filed and the relief sought". Sub‑rule (6) mentions the declarations which may be claimed by the petitioner, namely, "(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".

7. Rule 36 deals with the mode of trial of an election petition. Sub‑rule (1‑A) of this rule (introduced on the 16th of December 1964) lays down that "the Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially effected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules".

8. The combined effect of the provisions of law mentioned) above seems to us to be to give to the Election Tribunal a wide power to declare the election of the returned candidate to bee void if there has been a contravention of any provision of the Act or the rules, or there has been any material omission on the part of any person to comply with the relevant provisions of jaw in the conduct of elections. Accordingly it is clear that if an invalid nomination paper has been accepted by a Returning Officer, the Election Tribunal would have the power to declare void the election of such a candidate on the ground that there has been a contravention of the provisions of the Act. This wide power conferred on the Election Tribunal cannot be abridged or limited merely by reference to the fact that in section 23 of the Act no appeal is provided during the course of the elections, against an order accepting an invalid nomination paper. In view of the unambiguous language employed‑ in subsection (2) of section 60 and sub‑rule (1‑A) of rule 36, any limitation on the powers of an Election Tribunal in this behalf will have to be expressed in clear terms in the relevant statute, and cannot be left to be inferred only indirectly from certain omissions in another part of the Act, dealing with an antecedent stage in the entire process of elections to the Electoral College. We are, therefore, of the view that the Election Tribunal was competent to examine the validity of the nomination paper of the petitioner.

9. It was pointed out by Raja Said Akbar that in the corresponding provisions of the Basic Democracies Order, 1959, namely, rule 59 of the rules framed under that Order, as well as in section 72 of the National and Provincial Assemblies (Elections) Act, 1964, a specific provision has been made for challenging the illegal acceptance of an invalid nomination paper, and as such a provision is absent from the Electoral College Act and the rules framed thereunder, we should presume that the intention was to grant immunity to an acceptance order passed under the Act. For the reasons already stated in the preceding paragraphs, we consider that no such limitation can be read into section 60 of the Act or the relevant rule, namely, rule 36 (1‑A), merely by reference to the corresponding provisions in other statutes. On the contrary, we fired that the scope of the provisions with which we are concerned in the present case is wider than the provisions to which reference has been made by the learned counsel for the petitioner.

10. We may now turn to the second contention, namely, that the case of the petitioner does not fall within the mischief bf clause (f) of subsection (1) of section 53 of the Act. This section mentions the various factors and circumstances which disqualify a person from being, or being elected as, a member of the Electoral College for any electoral unit. The disquali fication mentioned in clause (j) relates to a person being "a party to a contract for work to be done for, or goods to be supplied to, a Union Council or a Town or Union Committee within whose jurisdiction such electoral unit is situated . . , ." Now, in the present case, the petitioner has obtained a contract for the repairing and tarring of roads situated in the Town of Kahuta, i.e., within the jurisdiction of the Town Committee concerned, of which the electoral unit 774 forms a part. On behalf of the petitioner the contention is that the roads in the Town of Kahuta are still under the control of the District Council of Rawalpindi, and the contract obtained by the petitioner is one between the petitioner and the District Council, and the Town Committee of Kahuta is not a party to it. It is further submitted that the tenders for this contract were called by the District Council, the tender of the petitioner was accepted by the District Engineer, acting on behalf of the District Council Rawalpindi, and the contract has also been signed with the District Council. Reference was also made to some resolution of the Town Committee of Kahuta to show that the contra over the roads had not yet been transferred to the Tow Committee.

11. The contention that the control over the roads of Kahuta Town had not yet been transferred to the Town Committee is not well‑founded for the reason that in clause (e) of rule 3 of the West Pakistan Local Council (Property) Rule 1962 it is clearly laid down that "all public streets, bridges and other means of public communication maintained out of the Local Fund" shall vest in a Local Council, subject to any special reservations made, or conditions imposed by Government were not shown any special reservations or conditions imposed by the Government in the matter of the vesting and control of public streets of Kahuta Town and, therefore, it is clear that by operation of rule 3, just mentioned, the roads have come to be vested in the Town Committee. Whether they have been formally taken over by the Town. Committee or not is irrelevant for considering the legal consequences which ensue under section 53 of the Act. In any case, the District Council will have to come into the picture, as in accordance with rule 5 of the West Pakistan Local Councils (Development Plans) Rules, 1961 the various works pertaining to a development plan shall be executed through such agency as may be determined by the Local Council with the approval of the sanctioning authority or the Provincial Development Advisory Council. Rule 9 of these rules lays down the extent of the financial powers and it appears that in respect of any scheme the estimated cost whereof does not exceed Rs. 20,000 in the case of productive schemes and Rs. 10,000 in the case of non‑productive schemes, the grants have to be sanctioned by the District Council. In other words, although the work is to be done on roads situated in the area of the Town Committee of Kahuta the grant has to be sanctioned by the District Council of Rawalpindi. The result, therefore, that the fact that the tenders were called by the District Council or that the work is to be executed under the supervision of the District Engineer does not mean that the work is not one to be done for the Town Committee of Kahuta, as it is this last body in which the roads of the Town are vested by operation o E rule 3 of the West Pakistan Local Councils (Property) Rules, 1962. The Election Tribunal has, therefore, rightly held that this is a work to be done for the Town Committee and, therefore, the case falls within the purview of clause (f) of subsection (1) of section 53 of the Act. It may be pointed out that the words employed in this clause are of wide import and would include not only contracts let out by the Town Committee itself for any work which it wants to be done, but also contracts for work to be done for the Committee, irrespective of the agency which is to execute the work or which lets out the contract.

12. As a result, the petitioner was rightly held to be disqualified from contesting the election to the electoral unit in question which falls within the jurisdiction of the Town Committee of Kahuta. The petition, therefore, fails and is hereby dismissed with costs. K. B. A. Petition dismissed.