P L D 1968 Lahore 891 (PLP)

K. E. CHAUHAN, J.‑--Raja Gulzar Khan (hereinafter called the petitioner) was Chairman of Union Committee No. 4 Gujar Khan. This Union Committee consists of three persons, namely, the petitioner, Sh. Abdul Hamid respondent No. 2 and one Khan Muhammad Ashiq Khan. Respondent No. 2, on the 31st of July 1967, alongwith the aforesaid Muhammad Ashiq Khan by a written requisition applied to the Controlling Authority to convene a special meeting of the Union Committee to consider a no‑confidence motion against the petitioner under rule 3 of the West Pakistan Basic Democracies (Vote of No‑confidence against Chairman) Rules, 1967. The Controlling Authority took tip the application on the 1st of August 1967, and fixed the 9th of August 1967, as a date for a special meeting c f the Union Committee for the purpose aforesaid.

2. By a writing, dated the 31st of July 1967, (Annexure "F"), received in the office of the Union Committee on the 1st of August 1967, the petitioner, however, tendered his resigna tion from the Chairmanship under Article 25 of the Basic Democracies Order, 1959. on the ground of personal engagements. On the same day, i. e. on the 1st of August 1967, the Controlling Authority accepted the said resignation and informed the Deputy Commissioner of the same vide Memorandum No. 1032/M.C. dated the 2nd of August 1967. Consequently, the meeting fixed for the 9th of August 1967, for considering the vote of no‑confidence was cancelled.

3. However, since the office of the Chairman had become vacant, the Controlling Authority fixed the 21st of August 1967, as the date for the election of a Chairman under Rules 8, 3 and 4 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. In this election the petitioner contested for the office of the Chairman. The other candidate for the Chairman ship was respondent No.

2. The petitioner won the election and was declared successful, under rule 5 (5) of the aforemen tioned Rules. Respondent No. 2 filed an election petition under Rule 7, This election petition was heard and disposed of by the Controlling Authority who accepted the same, unseated the petitioner and declared respondent No. 2 as an elected petition of Union Committee No. 4, Gujar Khan. The petitioner has come up in writ petition under Article 98 of the Constitution of the Islamic Republic of Pakistan, for getting a declaration that the aforesaid order of the Controlling Authority (respondent No. 1) is without lawful authority and of no legal effect. It is significant to mention that the Controlling Authority was of the view that the petitioner had tendered his resignation from the office of the Chairman though on the ground of personal engagements but apparently it was to avoid the no confidence motion and the consequent disqualification to stand as a Chairman for the remaining period of the said office (if the no‑confidence motion had been carried through), therefore, he was guilty of committing a fraud on the Statute and should not be allowed to reap its benefits. In other words, according to the Controlling Authority, a person who has once resigned from tile office of a Chairman on the threat of a no‑confidence motion against him, was disqualified from contesting for the dame office again. Rule

7. This election petition was heard and disposed of by the Controlling Authority who accepted the same, unseated the petitioner and declared respondent No. 2 as an elected Chairman of Union Committee No. 4, Gujar Khan. The petitioner has come up in writ petition under Article 98 of the Constitution of the Islamic Republic of Pakistan, for getting a declaration that the aforesaid order of the Controlling Authority (respondent No. 1) is without lawful authority and of no legal effect. It is significant to mention that the Controlling Authority was of the view that the petitioner had tendered his resignation from the office of the Chairman though on the ground of personal engagements but apparently it was to avoid the no confidence motion and the consequent disqualification to stand as a Chairman for the remaining period of the said office (if the no‑confidence motion had been carried through) therefore, he was guilty of committing a fraud on the Statute and should not be allowed to reap its benefits. In other words, according to the Controlling Authority, a person who has once resigned from the office of a Chairman on the threat of a no‑con fidence motion against him, was disqualified from contesting for the same office again.

4. In order to defend the impugned order, learned counsel for the contesting respondent argued that under Rule 7 (3) of the Basic Democracies (Election of Chairman) Rules, 1960, the Election Tribunal (which in any given case can be the Collector or other officer appointed by the Government under sub‑rule (1) (and which in this case was the Controlling Authority), can declare the election as void for any material irregularity or "any other sufficient reason to be recorded." He submits that (a) the factum of having earlier resigned facing threat of a no confidence motion was a "suffcient reason" to declare the election of the petitioner as void and the Controlling Authority was, therefore, well‑within its jurisdiction to so hold, (b). He further submits that under Articles 73 to 81 of the Basic Democracies Order, 1959 and particularly Article 74, the Controlling Authority had a supervisory control over the activities of Local Councils and bad the power to quash their proceedings where it felt that they were not in conformity with law or were in any way against public interest. In this case, since the Election Tribunal happened to be the Controlling Authority, it is contended, it was within its competence to quash the proceedings of the Union Committee holding that it was against public interest to elect a man as a Chairman who had himself earlier resigned and had hoodwinked the law.

5. As regards the contention at (a), the phrase "sufficient reason" came up for consideration in two decisions of this Court reported in Muhammad Hussain and others v. Pir Salah ud‑Din, Election Tribunal and others (P L D 1960 Lah. 1130) and Mehr Allahyar v. Syed Hasan Jahanian Shah Gardezi and others (P L D 1961 Lah. 247). It was held that a reason is sufficient, if it is acceptable to a reasonable person to be of such importance or such weight as to justify the declaration that the election was void and it was not left to the whim of the Controlling Authority to allow a Chairman to function or not. If some important or fundamental error or defect in the election has occurred, then the election may be set aside. It was held that exclusion of a voter which could not have made any difference in the result was neither a sufficient reason nor a material irregularity. On code other hand, if a large number of the members were not informed of the day or hour of the election of Chairman, or of the holding of the meeting, or if a large number of persons had been excluded from the voting, it may well be deemed to be a sufficient cause. The question whether the cause is sufficient, it was held, depended upon the facts and circumstances of each case and no hard and fast rule could be laid down. The approach of the Controlling Authority was not purely subjective and is objective as he is required to record his reasons and the reasonableness of the cause was open to scrutiny by this court. We are in respectful agreement with the aforesaid enunciation of law as contained in the aforesaid two authority. The question to be seen, therefore, is whether the earlier resignation constituted a sufficient reason" to declare the election of the petitioner as void or snot. According to the petitioner the earlier resignation, as recited in Annexure F" was due to personal engagements, while according to respondent No. 2, it was to escape the threat of no‑confidence motion. There is not an Iota of evidence on this point save the bare allegation and counter‑allegation of one party against the other. Even before the Election Tribunal that is the Controlling Authority, no evidence was led by either party with the result that it is really very difficult to safely hold as to what was the real cause of resignation. Even though the burden of proving the election as void was on respondent No. 2, he did not appear in the witness‑box nor he summoned the petitioner for cross‑examination. The possibility as such could not de ruled out that the petitioner may well have been under the burden of personal engagements at tine time he tendered his resignation but later on he might have been in a position to settle them down. With this vacuum of evidence, the accusation against the petitioner could not have been held to have been proved. Secondly, it is to be borne in mind that the whole matter rested on the vote of the third member Khan Muhammad Ashiq Khan, because the Union Committee, as already mentioned, consisted only of three members in which the third member possessed a unique position. He is alleged to have signed the no confidence requisition and it is he who again got the petitioner elected. In the face of such a waivering vote, it could not be said as to what would have been the real outcome of the no confidence motion, namely, its success or loss. Thirdly, it is to be borne in mind that it was the same controlling authority which had earlier itself accepted the resignation of the petitioner which meant that it accepted the plea of "personal engagements" as correct; because otherwise it may well have refused the resigna tion or directed it to be deferred till the outcome of the no‑confi dence motion. The fault, therefore, if any, lies in the Controlling Authority itself and not the petitioner and the latter could not, in these circumstances, be disqualified from his well‑earned election. Fourthly, placing the case at its extreme, the there fact that a person has resigned facing the threat of a no‑confidence motion against him cannot by itself and in all circumstance be such a factor as to declare his election as void. It is to be noticed that if such a conduct is so reprehensible then taking it to its logical conclusion, it would mean that such a person who has resigned from the office of a Chairman but again stands for the same should not be allowed to remain even a member of the Union Committee, not to speak of allowing him to be Chairman again. But this result is not to be concluded from the overall provisions of the Basic Democracies Order, 1959, and especially its Schedule 11 and various other Rules. To make such a conduct as a misconduct or to call such a conduct as a disqualifying conduct there ought to have been some specific provisions in the law on the subject. As there is no such provision, we cannot create it by ourselves, because it is well‑settled that the function of Courts is to declare law and not to make it. For the proposition that a resignation is no bar to seeking election to the same office again reference can be made to Allah Ditta v. Muhammad Saeed Vatoo, Returning Officer, Gujrat and others (P L D 1961 Lah. 479), the facts of which are on all fours with the present case. Fifthly, according to rule 4 (2) of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1969, "any Member of a Basic Democracies will be eligible for election as Chairman." The word "Basic Democracy", according to Rule 2 mean:, unless the context other wise requires, a Union Council, a Union Committee or a group of Union Committees or a Town Committee constituted under the Basic Democracies Order, 1959. The word "Member" has been defined in Article 2 (26) of the Basic Democracies Order, 1959, as a Member of a Local Council. According to Article 2 (24) of the said Order "Local Council" so far as relevant for the purpose of this case, means a Council constituted under the Basic Democracies Order and includes a Union Council, a Town Committee and a Union Committee. It is not denied that the petitioner is a Member of a Basic Democracy. As such, he was quite eligible for the election of a Chairman. Merely because a person had earlier resigned from an office is, therefore, no disqualification for being elected as a Chairman. To be a Chairman all that is needed is that a candidate must be a member of a Basic Democracy and this the petitioner eminently was. The view taken by the Controlling Authority, therefore, that the factum of the earlier resignation was a bar on the part of the petitioner to sand for the election of air Chairman is clearly erroneous and cannot be maintained.

6. As regards the contention at (b), this again has no force. Jurisdiction of the Controlling Authority under Article 74 of the Basic Democracies Order is quite distinct from the juris diction to hear election disputes, under the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. The latter is a specific provision on the subject in which general jurisdiction of Article 74 cannot be imported. Moreover, in this case, it is 1905 not the case of the Controlling Authority that it was proceeding to act under Article 74 and as such the learned counsel for the contesting respondent cannot justify the impugned order under a jurisdiction which the Controlling Authority never purported to assume, exercise or claim. Another thing to be noticed is that an election petition can be decided by the Collector or "such officer, as Government may appoint in this behalf", under Rule 7. "Such Officer" may be any officer different from the Controlling Authority. If he happens to be an officer other than the Controlling Authority, then it is obvious that the powers of Article 74 will not be available to him which are peculiar only to the office of a Controlling Authority. This shows that the jurisdiction of Article 74 is not to be infused into the jurisdiction under Rule 7 of the Election of Chairman Rules, and merely because the Election Tribunal incidentally happens to be the Controlling Authority, it will not clothe that Tribunal with the jurisdiction of Article

74. If Article 74 is to be allowed to apply to election matters, then Rule 7 would also become redundant which says that "no election of a Chairman shall be called in question except by an election petition presented to the Collector or such Officer as Government may appoint in this behalf within ninety days of the declaration of the result;" and it will tantamount to make another inroad for calling in question the election of Chairman. There is no justification to make such an interpretation which may lead to such anomalous results and which may defeat the very scheme on the subject. Last but not the least (assuming without conceding that Article 74 has any relevancy even then) under that Article proceedings of a Union Council can be quashed in "Public interest". The cause which we have held earlier as not "sufficient" for setting aside the election of the petitioner, can hardly be justified on the basis of, and called as a cause in "public interest."

7. The upshot of the above discussion is that this petition must succeed and the impugned order of the Controlling Authority is declared to be without lawful authority and of no legal consequence against the petitioner.

8. By our order, dated the 1st of November 1967, we had accepted the writ petition for reasons to be recorded later, the present judgment constitutes the reasons of the aforesaid order. Petition accepted. K. B. A.