P L D 1983 Lahore 76 (PLP)

(c) . Rule 51 of the Election Rules. Nominations.-(1) . (2) Any member of the Local Council mentioned in rule 49 may on the date fixed by the Returning Officer, propose the name of any person who is duly qualified to be elected as a member to represent the special interest in the Local Council. Rule 53 of the Election Rules. Scrutiny of Nomination papers.-(I) (2) (3) The Returning Officer, may, either of his own motion or upon any objection raised by a person attending the scrutiny under sub-rule (2). conduct such summary enquiry as he may think fit and reject any nomination paper if he is satisfied that : (a) . (b) the proposer is not qualified to subscribe to the nomination paper ; It is clear from perusal of the foregoing provisions that member specified in rule 51(2) who can propose the name of any person for election to special interest seat is a 'member mentioned in rule 49'. . Rule 49, however, explicitly qualifies such a member to be a member duly notified by Deputy Commissioner as having been elected and one who had already taken the oath of hi office. By reading the two provisions together it is obvious that only such member as had already taken the oath of office could propose the name of a person for election to a special interest seat. This appears to be the plain meaning of rule 51(2). If, the intention was that a mere member who had not yet taken the oath may propose a candidate for election to the special interest seat, then there was no necessity of making provision in sub-rule (2) of rule 51 that a member mentioned in rule 49 may make the said proposal. The Legislature in that case could have conveniently used the solitary word `member' without the said qualifying words. According to the settled principle of interpretation, no redundancy can be imputed to the Legislature and each word used by it has to be given a meaning. Special provision made in sub-rule (2) of rule 51 of such member as had been mentioned in rule 49, when read with the said rule 49 shows that the intention of the legislature was that it was only such member as had already made and subscribed to the oath and taken a seat who could propose the name of a person on the nomination paper of such a person for election to a special interest seat. Another reason in support of this interpretation is that under rule 49 an Election Authority is to issue a notification calling upon the members of a local council to elect members to represent special interest in that local council, only after notification of the names of members of the local council have been issued and after the aforesaid members have taken the oath. If a fresh notification for election to special interest seats is to be issued after oath has already been taken by the member so notified and if the said members constitute the electoral college for election of special interest seat as laid down in rule 49 (a), it can hardly be argued with success that a member who had not taken the oath can propose any person for election to a special interest seat as the proposal is obviously subsequent in point of time to such a notification. This interpretation is further supported by the provision contained in section 53(3) to the effect that nomination paper of a candidate can be rejected if the proposer is not qualified to subscribe to the nomination paper. The qualification of a proposer of a candidate for election to a special interest seat who is already a member have not been separately and specifically given either in the parent Statute or in the rules made under it. The only provisions in that regard are said rules 49 and 51(2) and those alone have to be relied upon for finding out the qualification of such a proposer. Now from the reading of the two together it is evident that it is only such person as is qualified under rule 49 who can propose a person as a candidate for election to a special interest seat i.e., he must be a notified elected member and should have also taken the oath of his office already. Here the learned counsel for the petitioner has pleaded that provision under rule 49 for taking oath is not. mandatory as no penalty has been prescribed in the rule for violation of the provision of taking of an oath. This plea too is on the face of it unsustainable, as, section 27 has by implication prescribed the penalty that such member as had not taken an oath would not be allowed to take seat and enter upon his functions and further, rule 53(3) has prescribed the penalty that if proposal for election to a special interest seat has been made by a person who is not qualified to subscribe to the nomination paper or in other words the 'proposer member' had not taken the oath of his office, the nomination paper comprising such a proposal would be rejected. Even otherwise rule 49 and rule 51(2) prescribe with great particularity that oath is to be taken by notified elected member before notification calling upon members to elect members to represent special interest is to be issued and before proposal of any person to represent such special interest can be made and, therefore, provision of taking of an oath in the context of election to special interest seat is obviously mandatory, as, it is well-settled that when a Statute or a rule made under it says that a thing, is to be done in a particular manner, it has to be done in that manner and all other methods of doing it are totally, prohibited and it is clear that in such a situation such a provision cannot be departed from or violated except at the risk of invalidation. In case of Nazir Ahmed v. King Emperor (A I R 1936 P C 253(2)), wherein question of legality of admission of oral evidence of a Magistrate in respect of confession made by an accused person before him which was not recorded to the manner laid down under sections 164 and 364, Cr. P. C., their Lordships of the Privy Council applied the principle that where a power is given to do a certain thing in a certain way, the thing should be done in that way or not at all and other methods of performance are necessarily forbidden and held that any other procedure, than the one laid down with such minute particularly in sections 164 and 364, Cr. P. C. themselves, was not permitted and held the said oral evidence to be of?? no consequence and since there was no other evidence against accused in that case, their Lordships of the Privy Council acquitted him. Further in case of Maintutdin Ahmed v. Delimitation Officer, Narayanganj and others (P L D 1965 Dacca 263), general principle of law referred to was that when a provision of law requires execution of a matter in a specified manner, the will of the Legislature has to be carried into effect, as it is not in the statute merely for the purpose of decoration. In case of West Pakistan Province v. Jamshed Miran (P L D 1965 Lah. 729), this Court held that when the law provided a thing to be done in a particular manner it had to be done in that manner alone and all other methods of doing it were impliedly prohibited. In that case the condition of service of Jamshed Miran a temporary employee could have been regulated by the rules made under clause (b) of subsection (2) of section 241 of Government of India Act, 1935. However, the services of the said temporary employee were terminated on one month's notice on the basis of a declaration got signed from him to the effect that he had noted that his appointment in the Department was temporary and his services could be terminated by the appointing authority on one month's notice without assigning any reason. It was held that if the Government wanted to impose the condition on the said temporary employee to the effect that his services could be terminated in a particular way, it could have done so only by making the rules in that behalf and not by obtaining a declaration from him and the declaration obtained was calculated to lay down condition of service of the said temporary employee and since it was by a method other than the one prescribed in clause (b) of subsection (2) of section 241, it was invalid and was of no legal effect. In the case of Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others (P L,D 1965 Kar. 625), it was laid down that where the rules had provided a thing to be done in a particular manner it was to be done in the same way or not at all.. In that case, the Election Tribunal had held certain votes to be invalid on the ground that voters thereof were minors etc. and were not entitled to vote, but since according to the rules, it was only the Registration Officer who could do so and the rules had provided a certain procedure for the removal of the names of the voters from the Electoral Rolls, it was held that the removal of the names of the voters from electoral roll which otherwise was final, could not be brought about except in the manner provided under the rule and on that ground the order of the Election Tribunal was struck down. In view of these authorities, it cannot successfully be urged that the provision for taking oath made in rule 51(2) read with rule 49 is only directory and was not necessarily meant to be complied with. The said provision in our opinion is mandatory and its violation has the obvious effect of invalidating the nomination paper of a candidate for election to a special interest seat. In this view of the matter, the finding of the Election Tribunal that the proposal made by Haji Ghulam Muhammad was invalid as he had not taken the oath by that time is unexceptionable. The point canvassed by the learned counsel for the petitioner has no substance and the same is repelled. The next contention of the learned counsel for the petitioner is that assuming that petitioner had been proposed by a person who could not subscribe to the nomination paper even then, the Election Tribunal should have passed an order for fresh election and it could not have straightaway declared Abdur Rehman as elected to the said special interest seat, as, the petitioner had got 9 votes whereas the respondent No. 2 had got only 3 votes in the said election and that if the said three votes are deducted from the votes obtained by the petitioner, the petitioner still remains in majority and, therefore, the votes obtained by the petitioner could not be thrown away in accordance with the principle laid down in para. 549 of Halsbury's Law of England, Vol. 14, 3rd Edition, as adopted by their Lordships of the Supreme Court in the case of Rashid Ahmad v. Barkat Ali (1) and followed in number of other cases, because the disqualification of the petitioner that he had been proposed by a person who was not authorised to do so had not received sufficient notoriety so as to enable one to impute perverseness to his voters. We are afraid we are unable to accept this contention too. There is nothing on the record of the writ petition to show that the petitioner obtained 9 votes and the respondent got only three. As a matter of fact, as submitted by Election Tribunal in its report called for in this case, this point had never been raised before the Election Tribunal nor any evidence to that effect ha been adduced before it. There is no finding of fact to that effect given by the Election Tribunal which should serve as a foundational fact for this Court to act upon. In the absence of any such finding of fact by the special tribunal, this Court is not in a position to apply the said dictum of law to the case in hand. Furthermore, the principle that votes given by voters without notice of above disqualification ought to be treated as good votes and cannot be thrown away and, therefore, there must for fresh election is not to be applied to each and every case. In our opinion it cannot be applied to a case wherein, on rejection of nomination papers of other candidates, or the nomination paper of the only other candidate, only one candidate would have been left in the field and no voting would have taken place. The principle that votes cannot be considered to be thrown away and there must be re election cannot be applied to a situation where no voting would have taken place. Further, it would not be applicable where the law in the form of statutory rules has; itself laid down that if one person alone was left in the field, his election would uncontested election and he would be declared elected unopposed and further more, the law in form of rules had given power to Election Tribunal to declare the said person elected unopposed in such contingency. The said rules are quoted in extenso as below : Rule 22 of Punjab Local Councils (Election) Rules, 1979 Uncontested election.-(11 Where, after secrutiny under rule 15, the number of validly nominated candidates for election as a member or members from an electoral unit and where after withdrawal under rule 18 or retirement under rule 19, the number of persons left as contesting candidates, is not more than the number of members to be elected from an electoral units, the Returning Officer shall, by public notice, declare such candidate or candidates to be elected to the seat or seats, as the case may be Provided that (a) . (b) . . (2) The Returning Officer shall submit to the Deputy Commissioner and the Election Authority a return of the election, in Form VII, in respect of which he has made a declaration under sub-rule (1).. (2) The Deputy Commissioner shall publish in the official Gazette the name or name of the returned candidate or candidates. Rule

13. Punjab Local Councils (Election Petitions) Rules, 1979 Ground for declaring election of returned candidate void.-(1) The Tribunal (1) PLD1968SC301 shall declare the election of the returned candidate to be void if it is satisfied that (a) the nomination of the returned candidate was invalid ; or. (c) . (d) . (2).., (a) . ' . , (b) . Rule 14 of Punjab Local Councils (Election Petitions) Rules, 1979 "Ground for declaring a person other than a returned candidate elected The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected." As already stated there were only two candidates in the field for one seat of a worker, one was petitioner Nazir Ahmad whose nomination has been declared to be invalid and his election has been declared by Election Tribunal to be void under rule 13(a) of Punjab Local Councils (Election Petitions) Rules, 1979. The other was respondent Abdur Rehman. The result of the declaration of invalidity of the nomination paper of petitioner Nazir Ahmad was that respondent Abdur Rehman was now the only candidate left in the field. In that situation according to above-quoted rule 22, respondent Abdur Rehman was to be declared to the said special interest seat of a worker and was to be notified as an elected member. After declaring nomination of petitioner to be invalid and after declaring his election to be void under rule 13 (a) of Punjab Local Council (Election Petitions) Rules, 1979. the Election Tribunal could, on the basis of said rule 22 of Election Rules, declare respondent Abdur Rehman to be elected unopposed in the uncontested election as a natural consequence of above declaration. But assuming that power of the Election Tribunal to do so lay under rule 14 of the Punjab Local Councils (Election Petitions) Rules, 1979, alone, even under that provision, respondent Abdur Rehman was entitled to be declared elected as he had made a prayer for the relief of his being declared elected in his election petition and the factum of his being the only person in the field and his election being uncontested furnished in the context of the said rule 22, the entitlement for his being declared elected and the Election Tribunal had, on the face of it, felt satisfied on the basis of said facts and said rule 22 that he sh -uld be declared elected. Common point in both the situations is that respondent was to be declared elected under said rule 22 without resort to actual voting. Therefore, there is no room for the proposition that the said dictum should apply, because occasion for taking votes would not have arisen if the question had not been ignored fly the Returning Officer that the petitioner bad been proposed by an unauthorised person who had not subscribed to the necessary oath. It may be noted that rule 14 of Punjab Local Councils (Election Petitions) Ruies, 1979, is couched in exactly the same language as section c 6 of National and Provincial Assemblies (Election) Ordinance, 1970 (XIII of 1970). Even then the case of Syed Saeed Hassan v. Pyar All and 7 others (PLD1976SC6), in which the principle that votes of voters cannot be thrown away without price notice of disqualification and there must be re-election was applied, in distinguishable, as, in that case, there were not merely two candidates but 9 candidates who had fought the election out of which at least three are mentioned to have secured substantial number- of votes and, therefore, the winning candidate having incurred disqualification due to corrupt or illegal practice committed by him, the said principle could be made applicable thereto. Furthermore, there was no provision of law available in that case in support of the other person getting the next highest number of votes to be declared elected. However, in the present case, the persons who fought the election for the single seat of a worker were only two and the petitioner, the winning candidate, having incurred the disqualification due to his having been proposed by a member who had not subscribed to the oath, the said principle was not applicable as the provision of law i.e. rule 22 of the Election Rules is available creating entitlement in favour of respondent to be declared elected unopposed. In our view, therefore, the said principle is inapplicable to the case in hand. It may be mentioned that in case of Rashid Ahmad v. Barkat Ali (1), in which the principle that votes of voters cannot be thrown away in absence of prior notice to voters of disqualification and that there must be re-election was applied, their Lordships of the Supreme Court had also impliedly held that the said principle could be applied only where it is impossible to foresee what the result would have been if the person disqualified had not been in the field. The precise observation which is at page 308 is reproduced below : "Now, in this case, the respondent Mirza Barkat Ali secured 162 votes and the appellant Rashid Ahmad Rabmani l56 votes. In order to ascertain whether `election has been materially affected', the Tribunal has to be satisfied whether the votes given to Barkat Ali should be thrown away so as to give the seat to Rashid Ahmad Rahmani who has secured lesser number of votes. It is impossible to foresee what the result would have been if Barkat Ali had not been in the field. There was also a third candidate and it would not be possible to anticipate whether some or all the wasted votes would not have gone to him. Hence such a question cannot, be answered on speculation or conjectural basis. The Courts in England -have laid down a perfectly sensible criterion upon which the Tribunal can proceed to declare its opinion in such a case. Their conclusions have been summarized thus in paragraph 549 of Halsbury's Laws of England, 3rd Edition, Vol. 14," The words underlined by us in the above quotation need special notice in this context. Furthermore, it may be stated that in that case, the persons who fought the election were three in number who respectively got 162, 136 and nil votes and not two so as to attract the application of a legal provision like rule 22 on one of the persons having been disqualified initially. However, in the present case on declaration of election of petitioner to be void, the result was foreseeable that now the only other candidate in the field would be deemed to have been elected unopposed. Again in Lal Muhammad v. Muhammad Usman and others (P L D 1968 S C 301) and Muhammad Usman v. Lal Muhammad and others (1975 S C NZ R 409), the contestants who actually fought the election were 12 in number and not two which would have attracted any legal provision like one made in rule 22. ?In this view of the matter, there is no merit in this point convassed by the learned counsel and the same is also, therefore, repelled. No other point has been argued. The upshot of the above discussion is that there is no substance in this writ petition and the same is dismissed in limine. s. A. H.??????????? Petition dismissed.