P L D 1966 (W (PLP)

S. ANWARUL HAQ, J.‑The petitioner Aman Ullah is an elected member of the Electoral College of Pakistan and by virtue of that election he has now become a member of the Union Committee `H' in Gujranwala Municipality under a notification issued by the Governor, West Pakistan, on the 30th of December 1965, purporting to act under section 57 of the Electoral College Act, 1964, and Clause (55) of Article 3 (1) of the Basic Democracies Order, 1959. After the formation of the Union Committee the members of the Committee were called upon to elect a Chairman from among themselves at an election held on the 18th January 1966. The petitioner as well as respondent No. 1, Malik Muhammad Bashir, offered themselves as candidates. The petitioner polled 5 votes as against 4 polled by respondent No. 1, and he was, therefore, declared elected. The respondent No. 1 preferred an election petition against the election of the petitioner as Chairman of this Union Committee. The respondent No. 2, namely, Deputy Commissioner and the Controlling Authority, Gujranwala, has issued notice to the petitioner to appear before him, and the next date of appearance is the 5th of March 1966. 2. By means of the present petition under Article 98 of the Constitution the petitioner seeks to challenge the jurisdiction of respondent No. 2 to proceed with the hearing of the election petition filed by respondent No. 1. The main contention raised by the learned counsel for the petitioner is that the West Pakistan Basic Democracies (Elections of Chairman) Rules, 1960, under which the election petition has been instituted by respondent No. 1, and which confer jurisdiction on respondent No. 2 to hear the same, have ceased to have any validity after the enactment of Amending Act XVI of 1965 on the 14th of August 1965, as by section 25 of this Act, Item (3) in the VI Schedule to the Basic Democracies Order, 1959, dealing with the election of Chairmen of Union Councils etc., has been deleted, with the result that there is no longer any power vesting in the Provincial Government to make rules in this behalf. 3. In order to appreciate the contention raised by Raja Muhammad Anwar a reference may be made to the provisions of the law having a bearing on the subject. Clause (4) of Article 158 of the Constitution of Pakistan provides that:‑ "The members of the Electoral College shall, in addition to their functions under this Constitution, have such other functions, as may be conferred on them by law and, in particular, provision may be made by law for conferring on members of the Electoral College functions in relation to matters of local government." In order to implement this constitutional provision, section 57 of the Electoral College Act, 1964 lays down that for the purpose of conferring on the members of the Electoral College functions in relation to matters of local Government the Provincial Government shall arrange the local units in the rural and urban areas into groups so that each group is a Union or, as the case may be, a Town; and declare, by notification in the official Gazette, that the members for the electoral units within a Union or Town shall, with effect from such date after they have once performed their functions of electing a President and the members of the National and Provincial Assemblies. as may be specified in the notification, constitute the Union Council or Committee for the Union or, as the, case may be, the Town Committee for the Town. It is 'in pursuance of these constitutional and legal provisions that the Government of West Pakistan has issued the notification dated the 30th December 1965, grouping all the local areas into unions and towns, and further specifying the number of the members of the Electoral College which shall be comprised in each union council, union committee or town committee as the case may be. Once these union councils or committees have been established, they are to function under the provisions of the Basic Democracies Order, 1959. Clause (5) of Article 11 of this order provides that:‑ "A Union Council shall, in the prescribed manner, elect one of its members to be its Chairman, and the Chariman so elected shall ex‑officio be a member of the Thana or Tehsil Council within whose jurisdiction the Union lies." 4. The next provision of law which needs to be noticed in this behalf is Article 89 of the Basic Democracies Order which confers on the Provincial Government the power to make rules. It will be profitable to reproduce this article here in extenso. It runs as follows:‑ "89.‑(1) The Government may make rules to carry out the purposes of this Order. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in the Sixth Schedule, and all matters incidental, consequential and supplemental thereto." 5. The Basic Democracies Order, in its Sixth Schedule, specifies matters respecting which rules may be made. Item (1) of this schedule deals with :‑ "Organization and conduct of elections under this Order, and matters connected therewith or incidental thereto, including by‑elections, and corrupt or illegal practices and other election offences and penalties therefor, and the sub mission, trial and disposal of election petitions." Item (3) of this schedule, as it stood before the amending Act XVI of 1965, deals with "Election of Chairman". As already stated the Amending Act of 1965 has deleted Item (3) from the Sixth Schedule with effect from the 14th August 1965. 6. The contention of the learned counsel is that once the Union Councils or Union Committees have been constituted in accordance with law, they have to elect a chairman as laid down in clause (5) of Article 11 of the Basic Democracies Order, 1959, but with the deletion of item (3) from the Sixth Schedule to this Order there is no longer any power vesting in the Provincial Government, under Article 89 of the said Order, to make rules relating to the subject of the election of chairmen of the Union Councils and Committees, with the result that although a chairman has to be elected in accordance with the directions contained in Article 11 of the Order, yet there is no provision now available in the rules to provide for an election petition against the election of a chairman. In other words, the sub mission is that in any case Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, has ceased to have legal validity. 7. We regret we do not see any merit in the contention advanced by the learned counsel for the petitioner. In the first place, it is to be noted that clause (5) of Article 11 itself lays down that the chairman of a Union Council is to be elected in the prescribed manner. According to clause (30) of Article 3 of the Order "prescribed" means prescribed by rules. Even if, therefore, there had been no specific article, like Article 89, conferring the rule‑making power on the Provincial Government, clause (5) of Article 11 would have sufficed to confer such a power for regulating the conduct of election of Chairman of the Union Councils etc., and matters incidental thereto. However, we find that clause (1) of Article 89 confers a general power on the Government to make rules to carry out the purposes of this Order, and clause (2) of that Article is without prejudice to the generality of the power conferred by clause (1). In other words, the subject which may be prescribed and enumerated in the Sixth Schedule to the Order cannot be construed as being in the nature of an extensive list of the items regarding which rules can be made by the Provincial Government. The general power conferred by clause (1) would still be available to make rules with regard to those subjects and items which are not specifically enumerated in the Sixth Schedule. Therefore, the omission of item (3), dealing specifically with the election of chairmen, from the Sixth Schedule does not have the effect of depriving the Government of the power to make rules on this subject. 8. The matter. however, does not rest here. Item (1) of Sixth Scheduled, the language of which has already been reproduced, deals with the organization and conduct of elections under the Basic Democracies Order, and it cannot be denied that the election to the office of chairman of a union council is an election to be held under this Order. Such being the case, in out view item (1) of the Sixth Schedule covers the subject and item (3) of the Schedule was, therefore, redundant. It was contended by the learned counsel for the petitioner that the elections mentioned in item (1) of the Sixth Schedule should be construed as meaning, those relating to the District Councils only. We are unable to appreciate this argument for there is nothing in any part of the Basic Democracies Order to support such a restrictive interpretation of the word "elections", as used in the first item of the Sixth Schedule of the Order. Giving this word its plain meaning, it is clear that item (1) relates to all the elections which have to be held under the provisions of the Basic Democracies Order and, therefore, this item would include power to make rules with regard to all these elections, including the submission, trial and disposal of election petitions relating thereto. On this view of the matter the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, would be clearly valid as having been made not only in pursuance of the general power of rule‑making conferred by clause (1) of Article 89, but also as rules falling within the purview of item (1) of the Sixth Schedule to the Order. It may be noted here that in clause (6) of Article 92 of the Order "all rules and bye‑laws when duly made shall be deemed to form part of this order, and shall have effect accordingly." The rules in question are, therefore, to .be deemed 'to be a part of the Basic Democracies Order, 1959 and to have effect accordingly. 9. Relying on Mulji Tribhovan Sevak v. Dakor Municipality (A I R 1922 Bom. 247) it was contended by Raja Muhammad Anwar that it was an established principle of the interpretation of Statutes that :‑ "Wherever there is a particular enactment and a general enactment in the same statute and the latter taken in its most comprehensive sense, would overrule the former; the particular enactment must be operative and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. The general principle is ‑that due effect should lie given to every part of a statute." It was submitted that as the subject of the election of chairmen had been specifically dealt with in item (3) of the Sixth Schedule to the Order, it should, therefore, be presumed that item (1) did not relate to this subject at all. The argument, however overlooks the fact that it refers only to the Sixth Schedule as it stood before the amendment introduced by the Act of 1965. If item (3) had remained included in the Sixth Schedule it could very well be said that the rules relating to the election of chairmen should be regarded as having been made in pursuance of item (3) and not item (1) of the Schedule, but with the deletion of item (3) no question arises of referring to a particular statute as against the general on the subject we are considering here. As the Schedule stands at present there is only one item dealing with the question of elections, and, therefore, the dictum in the case relied upon by Raja Muhammad Anwar is not attracted. 10. For the reasons given above, we have reached the conclusion that by‑ virtue of the provisions contained in clause (5) of Article 11 as well as clauses (1) and (2) of Article 89 read with the Sixth Schedule to the Basic Democracies Order, 1959, the Provincial Government continues to have the power to make rules on the subject of the election of chairmen of the union councils and committees, and that the rules made in 1960 have become a part of the Basic Democracies Order, 1959, under clause (6) of Article 92 of that Order. Such being the case, the Controlling Authority is clearly competent to proceed with the trial of an election petition under Rule 7 of these Rules. The present petition is, therefore, without merit and is dismissed in limine. K. B. A. Petition dismissed.