P L D 1961 (W (PLP)

QADEERUDDIN AHMAD, J.‑--Manzoor Ahmad Haji has made this writ petition for getting quashed by a writ of certiorari the order of the Administrator, Karachi, dated the 25th of July 1960, by which he has declared as void the election in which the Petitioner was elected Chairman of Jamshed Quarter Union Committee No. 62; and has consequently ordered fresh election; as well as for getting quashed by the same writ the proceedings of the next election in which respondent No. 2, Mst. Anwari Begum, was declared elected unopposed. The Petitioner has also asked for a writ of mandamus to prevent interference with his right to exercise the office of the Chairman of Jamshed Quarter Union Committee No.

62. The unsuccessful candidate of the election in which the Petitioner was elected and the Admi nistrator of Karachi have been impleaded as Respondents Nos. 1 and 3.

2. The facts are that eight members of the above‑mentioned committee voted at the first meeting of the Committee on the 10th of July 1960, in which there were two candidates for the Chairmanship of the Committee, namely, the Petitioner, Manzoor Ahmad Haji and Ch. Muhammad Ismail, Respondent No.

1. Eight votes were cast, and the Presiding Officer, Mr. Hizbar uddin, Additional City Magistrate, Karachi found that four of them were in favour of the Petitioner and three only in favour of Ch. Muhammad Ismail, because one of. the votes was invalid. The cross‑mark on the ballot paper which was rejected as invalid was not made against the name of any of the two can didates in terms of the Local Councils (Federal Capital) Assump tion of Office and Election of Chairman Rules, 1960. It bore a cross‑mark, but it was on the dividing line between the names of the two candidates.

3. Ch. Muhammad Ismail questioned the validity of the election by making an election petition to the Administrator of Karachi under rule 10 of the above‑mentioned rules. The Administrator heard the parties and came to the conclusion that there was a "doubt" regarding the "intention" of the voter whose ballot paper was rejected, and that there was a "dispute" between the candidates regarding its validity: therefore the provisions of clause (b) of sub‑rule (4) of rule 8, of the said rules were attracted. Those provisions required that such a summary enquiry "as may be necessary" be held on the spot. That enquiry, according to the Administrator, was not held and, there fore, he declared the election to be void, and ordered a fresh elec tion. Rule 10, under which he has made the order, is as follows: "(1) No election of a Chairman shall be called in question except by q. petition presented to the Administrator of Karachi within thirty days of the declaration of the result. (2) The Administrator of Karachi 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." Clause (b) of sub‑rule (4) of rule 8, which was not complied with, according to him, is as follows:‑ "Any doubt or dispute about the marking of a ballot‑paper, shall be decided by the Presiding Officer after such summary enquiry on the spot as may be necessary."

4. Learned Counsel for the Petitioner has criticised the order of the Administrator on three grounds: firstly, that it is without jurisdiction; secondly, that there is a mistake of law in it which is apparent on the face of the record inasmuch as he has misinterpreted the words "after such summary enquiry on the spot as may be necessary" of clause (b) of sub‑rule (4) of rule 8 of the said rules; thirdly, that the fresh election that was ordered by him was invalid because the order was made on the 25th of July 1960, and the election was held on the 27th of July 1960, without giving 3 clear days' notice in , terms of rule 4 of the said rules.

5. The first and third grounds were not seriously pressed by counsel; and they are erroneous because the Administrator had the jurisdiction to hear and decide the election petition and to declare the election to be void for any material irregularity or sufficient reason, and because rule 4 was not applicable to the second election. That rule is applicable only to the first meeting of a Local Council. The second ground was argued by counsel for the parties with reasonable keenness.

6. The portion of the order of the Administrator, which was the centre of discussion, is as follows: "The cross has been put on the dividing line arid the Presiding Officer may be right when he says that in his opinion the voter did not wish to vote for any of the parties. All the same, to my mind; it remained a `doubt' which it was necessary to clear up by a summary enquiry at the spot. In addition to the doubt the matter constituted a dispute between the parties because it was claimed by Ch. Muhammad Ismail that the vote was cast in his favour while his opponent contended that the intention of the voter was to remain neutral. Hence, enquiry, became doubtedly necessary. As no such enquiry, which was necessary was held on the spot, the election cannot be held to have been conducted in a regular-proper manner."

7. The words "doubt" and "dispute" used in the above quotation have been taken from clause (b) of sub‑rule (4) of rule 8 of the said rules, which, has been reproduced above. Mr. Nusrat, Counsel for the Administrator, argued that since the Administrator had the jurisdiction to hear and decide the election petition, his jurisdiction was not ousted even if he decided the petition differently from the views of this Court. Counsel contended that there was neither failure to exercise jurisdiction nor excess in its exercise; therefore, the Adminis trator's order was not questionable by a writ petition. We pointed out to counsel that the decision of the Administrator that there was no enquiry as contemplated in the said clause. (b) shows on the face of it that he has acted on the assumption that scrutiny of the ballot paper by its visual examination did not satisfy the provisions of the clause, and we enquired from counsel whether the order was not erroneous on the face of it and as such amenable to writ jurisdiction, if the assumption on which it is based was clearly wrong. Mr. Ali Ahmad Fazeel, counsel for respondent No. 2, joined him in contending that neither erroneous application, nor erroneous interpretation of law attracted the writ jurisdiction of Courts. In support of this contention he has referred to several precedents including Mukhtar Singh v. Board of Revenue U. P. (A I R 1954 All. 454). The relevant part of that judgment is as follows: "The question of interpretation of section 20, U. P. Zamindari Abolition and Land Reforms Act and its applicability to the proceedings before the Board of Revenue is a point which was within the competence of the Board of Revenue to decide and the Board of Revenue could decide it rightly or wrongly. An incorrect decision of such a controversial point cannot be said to an error of law apparent on the face of the record. An error, even if it is found to be such after argument as to the incorrect application of any law or as to its incorrect interpretation is not the type of error apparent on the face of the record which has been considered a ground for exercis ing the powers of issuing a writ of certiorari. On these grounds, therefore, this petition cannot be entertained." The word "Controversial" in the above observations was not noted by counsel. There was no controversy regard ing the interpretation of law in this case, or, at least, there was no such controversy as could lead to the con clusion, by its mere presence, that an error resting on it could not be said to be apparent on the face of the record. It is unnecessary to refer to other views expressed by various High Courts of India and Pakistan, because the Supreme Courts of both countries have expressed their views on the scope of writ jurisdiction for correcting errors of law when they are manifest on the record. Reference in this connection can be made to Hari Vishnu v. Ahmad Ishaque (A I R 1955 S C 233) and Tariq Transport Co., Lahore v. Sargodha Bhera Bus Service (P L D 1958 S C (Pak.) 437.). The judgment of our Supreme Court narrows down the issue in the present case to an enquiry as to whether there is any error of law patent on to and face of the record and whether that error is not so minor as not to have occasioned failure of justice.

8. Mr. Fezeel contended that under the said clause (b) it was incumbent on the Presiding Officer to hold a summary enquiry on the spot as soon as any `doubt' or `dispute' about the marking of a ballot paper arose and that such an enquiry, could be only by the examination of witnesses, and not merely an enquiry by personal observations of the referee or the Presiding Officer, as pointed out in Baroness Wenlock v. The River Dee Co. ((1887) 19 Q B D 155). He did not notice that in that judgment, sections 56 and 57 of the Judicature Act, 1873, were under consideration, and that the observations .related to those provisions. A reference to that judgment, for the present purposes, .was obviously` out of place. In the present case, such "summary enquiry" only was con templated by clause (b) of sub‑rule (4) of rule '8 of the said rules as could be said to be `necessary'. The use of the expres sion "enquiry" with reference to `doubts' and `disputes' about the marking of ballot papers may be a departure from the usual expression of "scrutiny" of ballot papers but in order to deter mine the scope and nature of "necessary" enquiry, one has to keep in mind that, under clause (b) of sub‑rule (3) of rule 8 of the said rules, a member is required to "mark a cross on the ballot paper against the name of the candidate for whom he wishes to vote". If the cross is not marked against the name of the candidate for whom he wished to vote, then it is non-com pliance with the provision. This simple proposition appears to have become confused because instead of applying the provision of law, an attempt has been made to be guided by the reasons which were behind the provision: One of them, no doubt, was that the intention of the voter to vote for a candidate should be expressed and ascertained by the cross which he marks on a ballot paper but what has been lost sight of is that once he has expressed his intention or choice by putting the cross on the ballot paper, he is bound by it and cannot be heard to say later on that he intended to act different. It is a principle of law embodied in section 92 of the Evidence Act and recognised for interpreting documents that a person, who executes a docu ment, is bound by what he executes and cannot be allowed to give evidence in order to contradict, vary, add to or subtract from what he has executed. To use a quotation, which appears at page 14 of "Interpretation of Documents" by Sir Roland Burrows: "No extrinsic evidence of the intention of the party . . . from his declarations, whether at the time of his executing the instrument or before or after that time, is admissible; the duty of the Court being to declare the meaning of what is written in the instrument, not of what was intended to have been written." Whatever evidence is allowed to be produced in suitable cases for arriving at correct interpretation of a document, can be directed only to better inform the interpreter so that he may better understand the document that is before him and declare what it means, and not to contradict, vary, add to, or subtract from it. If it was not so, then disputes could be raised regarding the intention of a voter even in those cases in which he made a cross‑mark clearly against the name of a candidate, because then it would be open to ‑him to give evidence that he intended to give his vote to some other candidate. The argument of the Administrator is that there was a doubt whether the intention of the voter, who put the cross‑mark on the dividing line, was to remain neutral or not, and the Administrator has impliedly suggested that mere observation of the ballot paper was not sufficient to resolve this doubt. This view is on the face of it erroneous because the ballot paper left no doubt that the cross mark was not placed against the name of any candidate. It is immaterial whether the voter had intended to remain neutral or to give his vote to any of the two candidates. The ballot paper was clearly not marked according to the rules, and his evidence as to his intention would have been not only futile but also inadmissible. There was in reality no ambiguity, because a look at the ballot paper was sufficient to remove the doubt, if there was any, and to settle the dispute that it was or was not in favour of any of the two candidates.

9. We may state here by way pf clarification that every ambiguity does not justify that it should be clarified by external evidence. If there is a patent ambiguity it remains a settled fact, and cannot be removed by recording evidence on it. An author, a writer or the executant of a document can be in reality vague or ambiguous. If he is so, then it is nobody's right or duty to create lucidity or distinctness for him. When a docu ment is patently ambiguous no evidence can be led to contradict this fact and make it appear unambiguous. It must be taken as it is, and inferences or conclusions drawn from it. It is only where the ambiguity is latent or appears to have been contrary to intention, that evidence is admissible to remove or clarify it. A reference in this connection can be made with advantage to the judgments on which the commentary on section 92 of the Evidence Act by M. Munir (4th Edition) at page 577 has been written. The heading of the relevant paragraph is as follows:-- "Evidence of surrounding circumstances is not admissible, where there is no ambiguity in the document, or where the ambiguity is `patent' ambiguity as distinguished from a `latent' ambiguity."

10. If we do not allow the argument to become confused by thinking of the original intention of the voter, which he bas not expressed in so far as the place of the cross‑mark is concerned, then it is obvious that he did not vote for any candidate. This was clear and could be unmistakeably ascertained by a look at the ballot paper. This scrutiny was made by the Presiding Officer and the conclusion reached by the scrutiny that the cross‑mark was on the dividing line has not been disputed afterwards.

11. We repeatedly enquired from Mr. Fazeel who has mainly argued to oppose the writ petition, as to what further enquiry could be made in this case. His reply consistently was that the statement of the voter ought to have been recorded for finding out as to whom he intended to vote. He was not able to suggest any other form of enquiry, and the type of enquiry which he suggested was precisely what could not be validly made. We do not say that there cannot be a case in which a doubt or dispute about the marking of ballot papers may be properly removed by examining witnesses. Probably there can be such cases, because the language of clause (b) of sub‑rule (4) of rule 8 of the said rules is wide enough to include them, but giving due effect to the words "as may be necessary" in this case, we consider the suggestion of enquiry by examining witnesses to be untenable.

12. We are, therefore, led to the conclusion that the deci sion of the Administrator that there was no enquiry as contem plated in clause (b) of sub‑rule (4) of rule 8 of the said rules is erroneous on the face of the record. The election could not legally be set aside on the grounds stated by the Administrator in his order.

13. Mr. Fazeel has argued in view of this situation that the Petitioner was estopped from questioning the second election, because he had participated in it by returning the register of the minutes of the Committee to the Presiding Officer at the meeting in which the election was held and by reciting the Holy Qur'an at the commencement of the meeting. We do not see how these facts can constitute an estoppel because the Petitioner had to return the register of the minutes on ceasing to be the Chairman in virtue of the order of the Administrator and he might have recited the Holy Quran merely because he happened to be there, and could not in propriety decline to do so. These two acts of the Petitioner to which objection has been taken can be easily said to have been unconnected with his objection which, should be noted, is primarily to the order of the Administrator and by a chain of consequences following from it to the second election. Moreover, his presence and recitation of the Holy Quran were not necessary concomitants of participation in the second election. He did nothing which was a necessary part of the election he was neither a candidate for election nor did he vote for any candidate. Mr. Fazeel has contended that abstention from voting is not a point in favour of the Petitioner, for nobody had voted as the new candidate was elected unopposed. Counsel was right in this contention, but he had to show something positive to connect, as cause and effect, the conduct of the Petitioner to that of his client, because there can be no estoppel unless the conduct of his client can be said to have been influenced by the conduct of the Petitioner. Counsel has argued that the Petitioner's omission at the time of his client's election to object to its validity amounted to a positive indication that Counsel's client could seek her election without objection from the Petitioner. He has tried to justify this argument by assert ing that she would not have sought her election if the Petitioner had allowed her in any manner to understand that he had an objection to it. It is difficult to guess with certainty what she would have done in that event, but this much is certain that the Petitioner could .not object to the election, or to the order of the Administrator at the meeting because there was nobody in the meeting who was competent to entertain such objections. Moreover, she may convincingly assert that her desire was to keep away from contests but it is quite another thing to assert on good grounds that election was sought by her because the Petitioner's conduct led her to believe that he would not question the validity of the Administrator's order and would thus allow her election to remain intact. We think that she had no reason to entertain this belief and that her grievance can be no more that she was not fore‑warned by him. Absence of fore‑warning does not create estoppel but may affect the costs of these proceedings.

14. Her Counsel has cited the Imperial Oil, Soap and General Mills Co. Ltd. v. Wazir Singh (31 I C 595), Narayan Pershad v. State of Hyderabad (A I R 1955 Hyd. 82) and Gangadhar v. Election Tribunal Yindhya Pradesh (A I R 1954 Vindhya Pradesh 44) in support of his contention that the presence of the Petitioner at the meeting and recitation of the Holy Qur'an by him amounted to an estoppel or at least a waiver of his objection to the order of the Administrator. It is unnecessary to analyse these judgments and to distinguish their facts from the facts of the present case, because the two facts on which the contention of estoppel and waiver has been founded by counsel do not amount either to estoppel or waiver. As to the argument of waiver advanced in addition to the argument of estoppel, we may add that it merely amounts to shifting the centre of emphasis of counsel's argument because to establish estoppel he had to argue that his client had acted on a belief which could be reasonably said to have been induced by the Petitioner that the Petitioner would do nothing to upset her election, but to establish waiver Counsel had to argue that the Petitioner had by his conduct impliedly agreed to abstain from doing anything to upset her election. On the facts of this case it was more difficult for counsel to take his stand on waiver than on estoppel, because for establishing implied agreement the intention of the Petitioner was to be shown as inferable. The proof of positive intention usually needs proof of positive acts. If such positive acts were no more than returning the register and reciting the Holy Qur'an, then they were not such acts of the Petitioner as could be said to be necessarily related to his intention regarding the order of the Administrator.

15. In conclusion, we accept the writ petition and quash the order of the Administrator dated the 25th of Jul y 1960, by which he set aside the election of the Petitioner. We do not issue a writ of mandamus as it is unnecessary, because the second election ceases to be valid and operative during the subsistence of the first election in which the Petitioner was elected to be the Chairman of Jamshed Quarter Union Committee No.

62. We, however, feel that Respondent No. 2 has been involved in this litigation for no fault of hers and without a fore‑warning. We, therefore, order that her costs shall be borne by the Petitioner; excepting for this, the petition is accepted with costs, and a writ in the nature of certiorari is issued as held above. A. H. Petition accepted.