P L D 1982 Quetta 1 (PLP)

MUHAMMAD JAFAR NAIM, J.‑‑The petitioner in this petition has assailed the order of the Collector, Nasirabad dated 7‑5‑1980 whereby the Collector held the election of Chairman, Town Committee, Dera Murad Jamali conducted on 8‑10‑1979 as void and directed re‑election. The facts leading to this order are that the petitioner had been elected as Chairman of the Town Committee, Dera .Murad Jamali, District Nasirabad on 8‑10‑1979. After the election of the Local Bodies, the Assistant Commissioner, Pat Feeder, Dera Murad Jamali summoned the elected members of the Town Committee for the purpose of taking oath of office and election of the Chairman. The Town Committee by majority elected the petitioner as their Chairman by show of hands. This had been certified by the Assistant Commissioner in the form of minutes of the proceedings, copy of which is Annexure

1. This election was challenged by one Sikandar Khan who was a member of the Town Committee. The Assistant Commissioner dismissed the application of Sikandar. Another application was moved by respondents 3 to 5 which too was rejected by the Assistant Commissioner by order of the same date whereupon respondents 2 to 4 filed another petition before the Authority (as defined under rule 2(6), Baluchistan Local Government (Election) Rules, 1979) which was accepted by the said Authority and re‑election of the Chairman was directed. The petitioner feeling aggrieved by this order filed a Constitution petition in the High Court which was disposed of by the judgment dated 2‑4‑1980. The High Court allowed the petition and struck down the order of the Authority dated 12th October 1975, whereby election dated 8‑10‑1979 was declared as void. The respondents 2 to 5 then filed a petition under section 9 of the Baluchistan Local Councils (Election of Chairman) Rules, 1979 on 16‑4‑1980. This petition has been disposed of by the Collector, Dera Murad Jamali by the impugned order and again the election of Chairman held on 8‑10‑1979 has been declared void.

2. The petitioner's case is that the impugned order is without jurisdic tion and is incompetent and any action taken on the basis of such order is void and unlawful. His next point is that the petition filed by the respondents 2 to 5 was time barred and was also liable to rejection under rule 50(2) of the Baluchistan Local Government (Election) Rules, 1979 and that the rule 7 referred in the Order of Collector dated 7‑5‑1980 was not applicable in the case of the election of the petitioner held on 8‑10‑1979 since retrospective application of the Rules could not effect the election duly held. It is also the case of the petitioner that he should be deemed to have been duly elected as Chairman of the Town Committee, Dera Murad Jamali on 8‑10‑1979. Respondent No. 1 has filed rejoinder to the petition and respondent No. 5 has filed counter‑affidavit.

3. The learned counsel of the petitioner Mr. Yakoob Khan urged that the petition was liable to be rejected under rule 50(2) of the Baluchistan Local Government (Election) Rules, 1979 as no application for condonation of delay was filed by the respondents. Mr. Yaqoob Khan has tried to build up his case on the basis of the assumption that Baluchistan Local Government (Election) Rules, 1979 are applicable in this case. These rules deal with the election of a person to a Local Council and these rules do not apply to the election of a Chairman of the Local Body or Town Committee. This position is quite clear. The definition of "candidate" given in paragraph 2(d of the said Rules which is as under :‑‑ "2(d) `candidate' means a person who has been nominated for election to Local Council." The perusal of this provision leaves no doubt that these Rules apply to the election of candidates to Local Bodies. The Scheme of the Rules is also indicative that the rules deal with elections to the Local Councils and so a petition regarding a dispute in election to Local Bodies law to the authority within 30 days of the application of the results, under rule

39. These Rules do not have any application to the election of a Chairman and therefore no provision of these Rules will hit the order dated 7‑5‑1980.

4. Further contention of the learned counsel is that the election of the Chairman was to be held in prescribed manner under section 19 of the Baluchistan Local Government Ordinance, 1979 (Ordinance IX of 1979) and since on 8‑10‑1979 there were no Rules in existence for election of the Chairman of the Local Councils, the Returning Officer i.e. Assistant Commissioner could adopt any expedient procedure. This argument has no force. When the Rules specifically provided that election should be held in the prescribed manner it could not be held otherwise. What is prescribed manner is defined in section 3 (39) of the Ordinance No. IX of 1979; "Prescribe" means prescribed by rules. Where law provides that certain act is to be performed in a prescribed manner no choice is left to perform that act in any other manner. If the Returning Officer felt any difficulty in finding out as to what was the prescribed manner according to section 19 of Ordinance IX;, of 1979, either be could have referred the matter to his superior Officers or to have tried to ascertain otherwise as to what was the prescribed manner in which election was to be held but in no case he could substitute a procedure of his own choice. Assuming that election in the prescribed manner could not be held for want of Rules, then the responsibility of the delay would not be that of the Returning Officer. A statutory authority can not act in any manner other than the one prescribed and can not go beyond the four corners of the Rules. There was no legal justification oft the Returning Officer to hold election of the Chairman by a manner devised by him.

5. The learned Advocate‑General appearing on behalf of the respon dent No. 1 contended that it is wrong to say that there were no Rules prescribed for the holding of the election of the Chairman on the relevant date. He has traced the history of the Rules framed under various enactment in this behalf. The foremost enactment applicable were the Basic Democracies Order, 1959 and the Municipal Administration Ordinance of 1960. These two enactments continued to remain in force in the Province until repealed by section 3 of the Baluchistan People's Local Government Ordinance, 1972. The West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 had been framed by the then Government of West Pakistan and promulgated on 11th January 1960. The Rules for election of Chairman were saved by section 3(2) of the Baluchistan Ordinance of 1972 which is reproduced below :‑ "3.‑(2) Where an enactment stands repealed under subsection (1), any appointment, rule, regulation, scheme or bye‑law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so . far as it is not inconsistent with the provisions as this Ordinance be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance until superseded under this Ordinance." The Baluchistan People's Local Government Ordinance (I of 1972) was repealed by section 236 of Baluchistan Local Government Act of 1975 which again saved the Rules. This Baluchistan Act of 1975 was repealed by section 242 of the Baluchistan Local Government Ordinance, 1979 and again by .its section 4 saved the Rules and Regulations framed under the repealed enact ment. It therefore follows that the Rules framed for the election of the Chairman under Basic Democracies Order, 1959; obtained a continuity by successive Legislation and were subsisting at the relevant date, and election of Chairman could be held under these Rules. The Baluchistan Local Government Ordinance, 1979 was replaced by Baluchistan Local Government Ordinance of 1980 and the provision of section 19 of Ordinance IX of 1979 have been reproduced in section 16 of the 1980 Ordinance. It will be seen from the above observations that the election of a Chairman had to be conducted according to the Rules and an election conducted by show of hands is not a recognised mode. Holding of election was a statutory obligation and had to be discharged in the fashion designed by the statute.

6. His contention further was that rule 7 of Election of Chairman Rules, 1979, did not apply in the case of petitioner. Rule 7 provided that secrecy of ballot was to be observed and election by show of hands defeated that object as stated by the Collector in his order. The Advocate General urged in this behalf that the rules of 1979 were of retrospective operation and the election of 8‑10‑1.979 was also hit by its provisions. The contention of the Advocate‑General is not acceptable since the election bad already taken place and nothing was left to be done. It was not a case of any proceedings or action pending.

7. The election of the petitioner on 8‑10‑1979 had been challenged by respondents before the Authority who by his order dated 12‑10‑1979 held the Election illegal and directed re‑election. This order dated 12‑10‑1979 was declared to be without jurisdiction by the High Court in Constitution Petition No. 232/79 filed by the petitioner and which petition was decided on 2‑4‑1980.

8. The respondents 2 to 5 filed a petition on 10‑4‑1980 before the Deputy Commissioner who has been authorised to entertain petition to challenge the election of the Chairman under section 9 of the Baluchistan Local Councils (Election of Chairman) Rules, 1979. The contention of the learned counsel of the petitioner is that petition filed by respondents 2 to 5 has not been verified as a plaint and such verification was necessary under Baluchistan Local Government (Election) Rules, 1979. As stated above these Rules are not applicable to the election of Chairman. The Rules under which the petition has been filed are the Rules of Local Council (Election of! Chairman) Rules, 1979. Neither Rules nor Rules under Basic Democracies Order, 1959 prescribe any form of petition and therefore verification of petition as it was necessary in the Local Bodies Election Rules, 1979 is not necessary under the rules for the election of Chairman as contemplated in Baluchistan Local Councils (Election of Chairman) Rules, 1979. This objection carries no weight.

9. The next argument of the learned counsel of the petitioner is that a petition filed by the respondent 2 to 5 on 16‑4‑1980 was time‑barred. His argument is that the petition should have been dismissed whether limitation was set up as defence or not. The Baluchistan Local Council's (Election of Chairman) Rules, 1979 provide a period of 30 days for the presentation of a petition. This period is similar to one that was prescribed under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. The present petition on which the impugned order was passed had been filed on 16‑4‑1980. The respondents had obtained an illegal order from Author‑ty on 12‑10‑1979 declaring the election of the petitioner on 8‑10‑1979 as illegal. Following the argument advanced by the learned Advocate‑General we are of the view that election of the petitioner as Chairman could be challenged by the respondents under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. Since the Rules of 1.960 provided at the relevant date, for the election of a Chairman to a Local Council then it must necessarily be held that Election petition could be filed under rule 7 of the said Rules within 30 days of the declaration of the result. Since rule 7 of 1960 Rules did not provide notification in the official Gazette, the date of declaration of the result would be the date from which period of limitation would run. No such action as contemplated under rule 7 had been taken by the respondent Nos. 2 to 5 and they had been sitting on a void order having been obtained from the Authority on 12‑10‑1979. No explanation has been given by respondents 2 to 5 for not presenting a petition under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. The contention of the learned counsel of the respondents Nos. 2 to 5 Mr. Munawar Ahmad Mirza is that the order of 12‑10‑1979 could be challenged by the respondents by petition only after the decision of the Writ Petition No. 230/79. Even if this contention is accepted even then there is no application for claiming benefit of the period spent in the High Court. It may be mentioned here that it was not the respondents 2 to 5 who had gone to the High Court but it was the petitioner who was aggrieved by the order of the Authority dated 12‑10‑1979. They can not claim any benefit to exclude time spent in proceedings in the High Court by any stretch of imagination under section 14 of the Limitation Act. They had always been taking advantage of a void order without resorting to the proper forum. No explanation was given before the respondent No. I when petition under section 9 of the Baluchistan Local Councils (Election of Chairman) Rules, 1979 was filed for not making a petition within the Prescribed time. Petition filed by the respondents was hopelessly time‑barred under rule 9 of the Baluchistan Local Council's (Election of Chairman) Rules, 1979 and West Pakistan Basic Democracies Order (Election of Chairman) Rules, 1960. The Collector/respondent No. 1 could not give any decision on merit as to the legality or otherwise of the election held on 8‑10‑1979 on account of bar of limitation.

10. It is stated in the counter affidavit filed by respondent Wahid Bux that after the passing of the order dated 7‑5‑1980 re‑election have been held in which the petitioner also participated. This fact of holding re‑election has not been denied by the petitioner by affidavit or otherwise. It has been observed above that the election of 8‑10‑1979 were held in unlawful manner and against the usually recognised norms of election which does not confer any vested right in the petition or and an illegal act has been set at naught by an illegal order. The Advocate‑General referred to the decision in Zulfikar Khan A wan v. The Secretary, Industries and Mineral Development (1974 S C M R 530), is not attracted in the present case as the order dated 7‑5‑1980 is not only erroneous but without lawful authority because it has been passed in flagrant disregard of rule 9 of the Baluchistan Local Government (Election of Chairman) Rules, 1979. 10‑A. The question would be as to whether the Court can in such circumstances validate an unlawful action. The Court will not definitely perpetuate a wrong. The learned Advocate‑General has relied upon the case of Raunag All v. Chief Settlement Commissioner (P L D 1973 S C 236), where it was held :‑ "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to 'be allowed to be invoked." The dictum of the Supreme Court applies with full in the circumstances of the case. The counter affidavit of the respondent No. 5 also shows that the subsequent fresh election were held in the same town committee and the petitioner also took part in it. This acquiescence on the part of the. petitioner also disentitled to him any help from the Court. We are unable,, to support his contention that he was validly elected Chairman of the Town Committee Dera Murad Jamali in the election held on 8‑13‑1979 by show of hands. We equally unable to hold that the order dated 7‑5‑1980 made by the respondent No. 1 was valid and legal. As regards the fate of this petition we would have felt no hesitation if the petitioner's vested right had been encroached upon. To seek an election is a civil right of personal nature which have not been denied to him. As is apparent from the circumstance that he had taken part in the election and he could himself be a candidate for it. Although the order dated 7‑5‑1980 made by the respondent No. 1 is bad and. has no sanctity in the eye of law, yet this illegality did not effect a vested right of the petitioner as he was not denied his right to seek election. If ‑ we grant relief claimed by the petitioner in paragraph (b) of the petition the effect would be to put the petitioner at a place where he could not show that he had a right to be. To obtain a discretionary relief it is incumbent upon the petitioner to show that his right has not the slightest shadow of any infirmity or defect and has not been obtained by any dubious method. In the circumstances of the case since no vested right of any person has been infringed and the parties had equal opportunity, of taking part in the subsequent election, we dismiss the petition with no order as to costs. S. A. H. Petition dismissed.  Z u | *T`  f  \ b a N T EVk   2 6 _ e cFuF H;IKINI KIK[K^K K K K K K KJRNRuT T T T 5 CJ6 CJ CJO  S u | *+ ef   ̾ $ q] qa$ $ [1] q] qa$ $ [1]‑ q] qa$ $ [1] [1] q] qa$  $ q] qa$ $ [1] k[1] q] qa$  T [1] a b k $ [1] A q] qa$ $ [1] ][1] q] qa$ $ [1]C q] qa$ $ [1] 4[1] q] qa$ $ [1]+ q] qa$ $ q] qa$ $ ƽ[1] q] qa$ $ [1]‑ q] qa$  $ q] qa$ %&XYbcBC ^ _ ǹ $ Ƌ q] qa$  $ q] qa$ $ [1][1] q] qa$ $ [1]Ch q] qa$ $ [1] I[1] q] qa$ $ [1] K q] qa$ $ [1] G q] qa$ $ [1] A q] qa$ _ ! !(( + + - - 2 2x4y4 5 5:: 迿 $ [1]w[1] q] qa$ $ [1]v[1] q] qa$ $ [1]^ q] qa$ $ [1] v[1] q] qa$ $ Ƙ q] qa$  $ q] qa$ $ [1] w[1] q] qa$ : F F G GEJFJsKtKaMbM S SjTkT T T $ [1]  [1] q] qa$  $ q] qa$ $ [1] e[1] q] qa$ $ Ɲ q] qa$ $ Ž q] qa$ 1 h / =! " # $ %  i 8@ [1]8 Normal[1]CJ_H aJmH sH tH ?@ABCDEFGHIJKLMNOPQRSTUVWXYZ \]^_`ab defghij lmnopqr u Root Entry  [1] F ? w 1Table [1] [WordDocument[1] " SummaryInformation([1][1] cDocumentSummaryInformation8[1] kCompObj[1] jObjectPool ? ?  [1] FMicrosoft Word Document MSWordDocWord.Document.8 9 q