P L D 1966 (W (PLP)

SARDAR MUHAMMAD IQBAL, J.‑The facts of the case are that the petitioner and respondent No. 1 are the members of the Electoral College. They contested the election for Chairman of Union Council No. 28, Nur Jahanian, Tehsil and District Bahawalnagar. The election was held on the 18th of January 1966. The Presiding Officer rejected one ballot paper and held that the petitioner and respondent have secured five votes each. The Presiding Officer, therefore; acting under clause (5) of rule 5. of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, drew the lots and the petitioner being success ful, he declared him to be duly elected. The respondent then called in question the election of the petitioner by an election petition so the Controlling Authority under rule

7. Mr. Khadim Hussain Butt, Deputy Commissioner, Bahawalnagar in his capacity as the Controlling Authority declared the whole election as void under rule 7(2) of the Rules and directed a fresh election. The petitioner has filed this petition under Article 98 of the Constitution with the prayer for declaring the order of the Election Tribunal dated the 27th of January 1966 as without lawful authority and that it be declared that the petitioner was the duly elected Chairman of the Union Council.

2. The Chairman of the Basic Democracies are elected under the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. These rules were made on the 11th of January 1960 by the Governor of West Pakistan in exercise of the powers conferred on him by clause (5) of Article 11, clause (5) of Article 12 and clause (2) of Article 89 of the Basic Democracies Order, 1959, read with entry 3 of the Sixth Schedule. In rule 7, it is provided, "No election of a Chairman shall be called in question except by a petition presented to the Controlling Authority within thirty days of the declaration of the result" and the Controlling Authority is competent to declare the election as void under clause (3) of rule 7.

3. Learned counsel for the petitioner contends that no action could be taken under rule 7 of the Rules because rule 7 had no valid existence in the eye of law. He stated that at the time the Rules were made and, promulgated on the 11th of January 1960, it was competent for the Governor to make provision for the election petitions and, therefore, rule 7 was intra vires the' provisions of the Basic Democracies Order: His case is that the Government by virtue of Article 89(2) of the Orders could by rules provide for all or any of the matters enumerated in the Sixth Schedule, and all matters incidental, consequential and supplemental thereto and the `Election of Chairman' was shown at serial No. 3 of the Sixth Schedule. He referred to section 25 of the Basic Democracies (Amendment) Act of 1965 (Act XVI of 1965) and pointed out that item No. 3 in the Sixth Schedule, namely, the `Election of Chairman' was omitted. This Act was notified on the 14th of August 1965 and came into force on the date specified in the notification under clause (b) of section 57 of the Electoral College Act, 1964 (IV of 1964), constituting the Union Councils, Town Committees and Union Committees under that Act. The argument of the learned counsel for the petitioner was that after this item of the election of Chairman was omitted from the Schedule, the provision contained in rule 7 dealing with the election petitions to contest the election of the Chairman also came to an end.

4. The argument put forth by the learned counsel is undoubtedly fallacious.. If his contention is accepted as correct then the Governor is not competent to make any rules now under section 89 of the Order for the election of Chairman. If this be the case, then not only that rule 7, dealing with the election petitions, will cease to have any existence, but the effect of this will be that the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, themselves will cease to exist. The' petitioner was declared to be elected under the said Rules by the Presiding Officer. If the rules had no valid existence, the election of the petitioner which was under the said Rules would also be without lawful authority and consequently of no legal effect. The Rules will stay as whole or they will go as a whole. The case can be looked from another angle as well. What has been done by the Amending Act XVI of 1965 is that item No. 3 has been omitted from the Sixth Schedule. . !f we accept the contention of the learned counsel that by this conscious omission, it was intended to takeaway the power of rule making from the Governor in respect of the election of the Chairman, then too it would only apply prospectively and will not apply to the rules which already exist. Doubtless, in a case where a rule or bye‑law is made under an Act or a section of the Act, the repeal of that Act or section abrogates the rule or bye‑law unless it is preserved by the repealing Act. This was the view taken in Waston v. Winch ((1916) 1 K B 688). That rule, however, does not apply here. Here the section under which the rule is made has not been repealed. Under clause (5) of section 11 of the Order, a Union Council has to elect "in the prescribed manner" one of it, members to be its Chairman. The West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, were made to carry out the purpose of this section. Section 11 has not been repealed. If section 11 had been repealed, the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, would have been, according to the rule enunciated in. Watson v. Winch, abrogated. We may also note here an argument put forth by the learned Advocate‑General. He, relying on Article 92(6) argued that the Rules after they were made constituted a part of the Basic Democracies Order, 1959 and by the omission of item No. 3 from the Sixth Schedule even if no such rules could be made in future, it does not affect the existence or the validity of these Rules. Under Article 92(6) of the Basic Democracies Order, "all rules and bye‑laws when duly made shall be deemed to form part of this Order and shall have effect accordingly." These rules were made on the 11th of January 1960 and were necessary for the purposes of Article

11. They, therefore, constituted a c part of the Order itself and even if the Governor had no power to make the rules in future, the existence or the validity of these rules is not at all affected when the main provision contained in section 11(5) under which they were made is not omitted or repealed.

5. We, have, however, no doubt that by the omission of item No. 3 from the Sixth Schedule, the power of the Government to make the rules in respect of the election of Chairman has not been affected. Under clause (5) of section 11 of the Basic Democracies Order, a Union Council is under a statutory obligation to elect one of its members to be its Chairman. The Chairman has to be elected in the prescribed manner which according to clause (30) of section 3 means `prescribed by rules'. The rules can be made by Government under section 89(1) which reads as:‑ "The Government may make rules to carry out the purpose. of this Order." Since the election of the Chairman has to be one according to the rules and without the rules the election is not possible, the, Government in such a case is bound to make these rules because without such rules the purpose of the Act, viz., the election of the Chairman cannot be carried out. In this view of the matter, even if item No. 3 had. not been there in the Sixth Schedule, the Government was still competent to make the rules. Item No. 3 in the Sixth Schedule may have been put there by way of abundant caution. It appears that the Legislature realise subsequently that it was a redundant provision and therefore. omitted it. The omission of item No. 3 from the Schedule does not in any way affect the rule making power of the Government to make rules in respect of the election of the Chairman.

6. It was next contended by the learned counsel for the petitioner that the Government may be competent to make the rules about the election of the Chairman under section 89(1) read with Article 11(5) of the Order, but it had no power now to make rules like rule

7. According to him the rules about the election of the Chairman could be made under the provisions of clause (1) of section 89, but so far as the election petitions were concerned, a provision by rules could be made only under clause (2) of section 89; which reads as:‑ "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." Learned counsel argues that the Government under clause (2) could make rules not only in respect of the matters enumerated in the Sixth Schedule and in the present case, viz., election of Chairman, but also in respect of all matters incidental, consequential and supplemental thereto, and the election petition, according to him, was a matter only incidental and consequential to the election of the Chairman. We are unable to subscribe to his view. Under clause (5) of Article 11, the election of the Chairman is to be held according to rules. By the election it is meant al valid election. The election, therefore, does not conclude by the casting of the votes and counting thereafter, but it includes all stages until it is finally decided that a person is validly elected. Disputes might arise in respect of such an election and they may be in connection with the counting of the votes or other matters. It, therefore, becomes necessary to make a provision for the decision of such disputes and it may be by way of an appeal or an election petition. All these provisions pertain to the election and, therefore, when it is required that a Chairman is to be elected in accordance with rules, it clearly means that the rules are to be made not only for making provisions for the actual election and the declaration of the result thereafter, but also for providing a machinery for the determination of the dispute which may arises in connection with such an election. That being so, notwithstanding the omission of item No. 3, the Government is competent to make the rules about the election of the Chairman and also about the constitution of the Tribunals to decide the disputes in respect of the said election.

7. Learned counsel for the petitioner also challenged the findings arrived at by the Tribunal. The Tribunal was competent to arrive at those findings and the same being within its lawful authority are not open to exception under Article 98 of the Constitution. The petition has no merit and is accordingly dismissed in limine. K. B. A. Petition dismissed.