1992 PLP 1437 (CLC)

"(1) Subject to the provisions of this Act and the rules, every election petition shall be tried in accordance with the procedure laid down by the Election Commission. (2) ........... ‑‑‑‑ (3) (4)

5. In exercise of the powers vested in it by subsection (1) of section 62 of the Representation of the People Act, 1976, the Election Commission laid dawn the following procedure for the trial of election petition (published in the Gazette of Pakistan, Extraordinary, dated 17th March, 1985):‑ "No.F. 1 (7)/85 Cord: ‑In pursuance of the powers conferred by subsection (i) of section 62 of the Representation of the People Act, 1976, the Election Commission is pleased to lay down the following procedure for trial of election petitions:‑ (1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Secretariat Block `S' Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner alongwith the receipt indicating that the copies of the petition and the attached documents and the affidavits annexed to the petition have been supplied to the respondent. (2) Every election petition shall be processed by the Secretary, Election Commission. In case the petition is not in accordance with the procedure laid down herein it shall not be entertained and the petitioner shall be informed accordingly. Notice of the date published through the press, radio and television shall be deemed to be a valid notice and no personal notice shall be necessary unless the tribunal feels necessary to do so. (3) The respondent shall upon the receipt of notice of the petition from the petitioner within seven days file his written statement together with all documents relied upon by him and the affidavits of the witnesses as are desired to be produced in defence. (4) The petitioner shall make available for cross‑examination all witnesses whose affidavits are filed with the petition for cross‑examination on the first date of hearing before the Tribunal. (5) Where any party desires to summon any official witness he shall file with the petition a list of such witnesses justifying his production and also mention the documents, if any, which are required to be proved through such witness. (6) No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the tribunal. (7) Where the election petition claims as relief a declaration that the election of the returned candidate is void on the ground that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member, the tribunal may decide the question of such qualification or disqualification as a preliminary issue. (8) The tribunal may make a memorandum of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full. (9) The tribunal may refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous or vexatious ground for the purpose of delaying the proceedings or defeating the ends of justice. (10) The tribunal may, pending the final disposal of the petition, grant such interim relief as it may deem fit."

6. Paragraph 3 It elates to the procedure for filing written statement, which makes it obligatory that the written statement is to be filed within seven days from the receipt of the notice of the petition. There is, however, nothing in this paragraph to suggest as to where and before whom the written statement is to be filed. This question is not free from difficulty. If a wide interpretation is put upon the language of this paragraph and it is assumed that the written statement is to be filed before the Tribunal then obviously the same cannot be filed within the prescribed period, as the appointment of the Tribunal is itself a time consuming process. It will not be out of place to mention here that in this case also the appointment of the Tribunal was made on 21st January, 1991 after five weeks of the filing of this petition. It is, therefore, apparent that the written statement is to be filed before the Commissioner like the petition. Reverting to section 62 of the Representation of the People Act, 1976, it will be observed that it provides for the procedure. before the Tribunal and not before the Commissioner.

7. Reading paragraphs 1 and 2 of the above procedure together with sections 52 and 53 of the Representation of the People Act, 1976, it is clear that the latter provisions control them. There is, however, no statutory force. for implementing paragraph 3 of the procedure laid down by the Election Commission. As indicated earlier the condition of filing of written statement before the Commissioner is beyond the. scope of sub‑section (1) of section 62 of the Representation of the People Act, 1976.

8. The validity of a rule may be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute and whether it is consistent with the statute, reasonable and not contrary to general principles. (Refer Perumalla Venkayya v. Batchu Pullayya, reported in A.I.R. 1942 Madras 466). ‑

9. Again a bare reading of paragraph 3 of the above procedure would show that it is directory in nature. The use of word `shall" would not by itself make a provision mandatory. Ordinarily, the word `shall' is used in mandatory sense, but it can be interpreted as directory if the context and intention otherwise demands. A mandatory provision is one, the omission to follow which renders the proceedings to which it relates void, while a directory provision is one the observance of which is not necessary to the validity of the proceedings. The respondent No.1. had filed his written statement on 14‑5‑1991, and there is hardly any reason to debar him from contesting the proceedings.

10. In the result, therefore, the application dated 28‑4‑1991 made on behalf of the petitioner is dismissed.

11. Adjourned to 25‑11‑1991 at 11.00 A.M. for settlement of issues. AA./63/`E Application dismissed.