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Petitioner: RAB NAWAZ VS Respondent: THE ELECTION TRIBUNAL & 2ND SIND LABOUR COURT AND JUDGMENT
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed, Ibadat Yar Khan Title:RAB NAWAZ vs THE ELECTION TRIBUNAL & 2ND SIND LABOUR COURT AND
JUDGMENT
Reported As: PLD 1986 Karachi 46 Result: Order accordingly Judgment JUDGMENT ' IBADAT YAR KHAN, J.-Petitioner Rab Nawaz and respondent No, 2 Ali Khan contested for a seat in the District Council, Karachi from Constituency No, DC-13. Petitioner was declared elected on the strength of majority of votes secured at the poll against the respondent. His name was notified by the Election Authority in the official Gazette, dated 11-10-1983 in pursuance of section 28 of the Sind Local Government Ordinance, 1979. 2. The respondent No, 2 was dissatisfied with the results and he preferred an election petition before the Provincial Election Authority under section 319 of the Sind Local Government Ordinance, 1979 read with Rule 65 of the Rules framed under the Ordinance. This petition was referred to and heard by respondent No, 1 as Election Tribunal duly constituted by the Election Authority. The petitioner appeared before the Tribunal, filed his written statement, issues were framed, evidence was recorded and finally the Election Tribunal by order, dated 12-7-1984 allowed the petition, declared the election to be void. The present petitioner (respondent in the Election Petition) was unseated and respondent herein was declared to have been duly elected member from the Constituency. The Tribunal has confined his decision to only one issue in the case. On other issues the view expressed by the Tribunal is as follows :- "Issues Nos. 2, 3, 4 and 5.-On all these issues the evidence adduced by the petitioner is common. The petitioner has only relied on the evidence of himself and his two witnesses namely Soomar and Muhammad Akbar. However, their evidence is neither sufficient nor satisfactory to arrive at a positive finding in respect of the aforesaid issues and the petitioner ought to have examined either the election staff or should have got produced the material documents. Even otherwise, in view of
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my finding on issue No, 1 that the respondent was disqualified from being a candidate for the above election, it is not necessary to discuss these issues in detail. Issues Nos. 6 and 7. -In view of my finding in issue No, 1, I hold that the declaration of the respondent as a returned candidate from Constituency No, DC-13 was void and is set aside and the petitioner is declared as unopposed returned candidate from the above constituency." ' The only issue that had survived for decision related to the disqualification of the petitioner on account of his being President and member of the Executive Committee of the Pakistan People Party of Achar Goth, Dhabeji, Karachi, Section 37, subsection (3) of the Sind Local Government Ordinance. 1979, under which this disqualification is suffered is reproduced hereunder :- "Section 37(3) .-No person shall be eligible to be elected as, and to be a member if he has at any time on or after 20th December, 1971, been a member of an Executive Committee by whatever name called, or an office bearer of a political party at local, district, provincial or national level, provided that nothing herein contained shall apply to a person who is a member of the Federal or Provincial Cabinet or of Federal or Provincial Council or of any Council, immediately before the coming into force of the Sind Local Government (Second Amendment) Ordinance, 1983." ' The petitioner feels aggrieved against this finding and has filed this Constitutional Petition praying that the order, dated 12-7-1984 be declared to have been passed without lawful authority and "the petitioner be declared a winner of DC-13 Constituency". ' In this petition several grievances are raised and several allegations are made against the Tribunal but the learned counsel for the petitioner has addressed us on one and only one point namely, that the scope of inquiry before the Election Tribunal is limited, or shall we say the scope of election petition before the Tribunal is not unlimited. It is contended that the charge of disability alleged against the petitioner by virtue of subsection (3) of section 37 of Ordinance XII of 1979 fell to be determined at the stage of scrutiny of the nomination papers. Once that stage had passed petitioner's candidacy attained immunity against any attack on account of this disability and no further attack could be made against the petitioner on account of the alleged disqualification. According to the learned counsel petitioner's nomination paper was cleared and accepted by the Returning Officer and if the respondent No, 2 had any grievance, he could file an appeal against this decision of the Returning Officer. The alleged affiliation of the petitioner with Pakistan Peoples Party could not form a basis of an election petition nor could such a disqualification be inquired or re-agitated before the Election Tribunal. Learned counsel heavily relies on sub-rules (5), (6) and (8) of Rule 19 in support of his argument and claims finality for an order passed under these rules by the appellate authority at the scrutiny stage. Learned counsel draws support from the language of sub-rule (8) of Rule 19, "the order passed under sub-rule (5) or (6) shall be final" and contends that this finality cannot be disturbed by reopening or reagitating the same controversy before the Election Tribunal in an election petition. These contentions of the learned counsel have been highlighted in para. 10 and paras. 11-a and 11-c of this Constitutional petition, which are reproduced below for ready reference :- "10. That the learned respondent No, 1 ignored this fact that at the time of submitting nomination paper, the Returning Officer has scrutinized all the papers in detail and enquired about this fact in the locality that any candidate is the office-bearer of any political party or not. He also checked whether there is any violation of section 37 of the Sind Local Ordinance, 1979 or not, then the petitioner was allowed to go for the candidacy, therefore, Election Tribunal as an Appellate Authority cannot take this issue at appellate stage. 11-a. That the impugned order is in excess of jurisdiction of the Election Tribunal inasmuch as the question of disqualification on account of alleged political affiliation could not lawfully be dealt with and adjudicated by the learned Election Tribunal which was constituted to hear and decide only the petition filed under rule 65 of the Sind Local Councils (Election) Rules, 1979.
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1I-c.. That the order of acceptance of nomination paper passed by the Returning Officer, being an appealable order and the appellate authority also vested with the jurisdiction of reviewing the said order suo motu within the stipulated period of time, the said order could not lawfully be agitated before the Election Tribunal much after the expiry of the said stipulated period and as such the order of Returning Officer accepting the petitioner's nomination paper could not be challenged before the Election Tribunal." ' As stated above, the learned counsel for the petitioner has not advanced any argument on any other issue except the jurisdictional issue elaborated in the preceding paras. And we have focussed our attention only on this argument of the learned counsel. The argument on first glance looks very attractive. But if this argument is accepted, it would mean that election disputes and remedies provided in the law to resolve them are compartmentalised. Some relating to qualifications and disqualifications, which pertain to a pre-poll period to be disposed of at the scrutiny stage, and others which relate to a post-scrutiny stage. They are to be adjudicated by the Election Tribunals, constituted by the Election Commission to hear election petitions after the election results have been announced and officially notified in the Gazette. Broadly speaking these would include "corrupt or illegal practice or other illegal act" alleged to have been committed by the returned candidate or illegalities and irregularities committed by any contesting candidate or even official agencies conducting the polls. ' A closer look on the election laws would reveal that the only forum provided for final adjudication of election disputes, is the Election Tribunal. At this stage reference to some provisions is necessary. Chapter V of the Ordinance XII of 1979 consisting of sections 33 to 39-deals with Elections. Subsection (1) of section 39 of the Ordinance provides :- "All elections under this Ordinance shall be organised and conducted in accordance with the rules which may amongst other provide for bye-elections, and the submission to and disposal of election petitions by the Election Authority." Section 39(2) refers to the creation of a Tribunal. This Tribunal is clothed with powers to try the election petitions "as nearly as possible in accordance with the procedure laid down in the law relating to the elections B of the Provincial Assembly." Subsection (3) of this section invests the Tribunal with powers of a civil Court under the C. P. C. And certain sections of the Cr. P. C. ' It is significant that after providing the special forum for adjudicationc of election disputes under section 39, the jurisdiction of normal Court& has been barred by section 39-A which runs as under :- "No Court shall entertain any proceedings nor shall it make any order or grant any injunction in relation to any action taken, proceedings held or order made by any authority or officer in connection with elections to the councils and matters connected therewith." Ignoring such side ways as delimitation of constituencies, the enumeration of electoral roll and disputes regarding inclusion of names in the roll or such controversies as identity of a voter/impersonation etc. At the time of polling, the main broadway through which the electoral process runs its course, has two important landmarks; first when disputes of serious D nature touching the eligibility or disqualification of candidates are examined and second when the success of the elected candidate is challenged by his rivals by way of an election petition before an Election Tribunal. These stages are the 'scrutiny' conducted by the Returning Officer and the hearing of the petition before the Election Tribunal. ' It is convassed before us that decision taken at the scrutiny stage is final and the same dispute cannot be reagitated before the Election Tribunal. To revert to the statutory provisions, it is to be noted that after the E nomination papers have been filed by the contesting candidates, according to the procedure prescribed by rules 17 and 18, the Returning Officer, in presence of and after providing full opportunity to all contentin candidates to
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examine the nomination papers filed by others, and eithe suo motu or after hearing the objections filed against the nominations, either accepts or rejects each paper. This is called scrutiny. Not only the nomination paper is scrutinised but even the nomination as such is subjected to scrutiny inasmuch as the Returning Officer is competent to even look into the facts whether a candidate is prima facie eligible to be cleared for the contest. The qualifications and disqualifications of a candidate have been fully enumerated in section 37 of the Ordinance and at the time of scrutiny candidate has to satisfy the Returning Officer that he possess all the qualifications and does not suffer from any disqualification and as such is eligible to run in the election. In order to fully comprehend the situation, it would be helpful to quote this rule 19 in full :- "19. (1) The candidates, their election agents, proposers and seconders, and one other person authorized in this behalf by each candidate and the person who made a representation against the nomination paper, may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under rule 17. (2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide any objection raised by any such person to any nomination. (3) The Returning Officer, may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that :- (a) the candidate is not qualified to be elected as a member; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper; (c) any provision of rule 17 or rule 18 has not been complied with ; Or (d) the signature of the proposer or the seconder is not genuine; ' Provided that :- (i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; (ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith; (iii) the Returning Officer shall not enquire into the correctness or validity of aay entry in the electoral roll. (4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it, and shall, in the case of rejection record reasons therefor. (5) An appeal against the decision under sub-rule (4) shall lie to the Commissioner of the Division or the District Magistrate of the District as may be authorised in this behalf by the Election Authority and shall be filed and disposed of by date specified in the Election Programme. (6) The appellate authority may, suo motu revise the decision within the period specified in the Election Programme for filing and disposal of appeal under sub-rule (5). (7) An appeal shall be disposed of either summarily or after such summary enquiry as the appellate Authority may consider necessary. (8) The orders passed under sub-rule (5) or (6) shall be final." The reading of the rule would show that the Returning Officer is initially enjoined with the duty to subject each nomination paper to his critical examination. For this purpose he is also authorised to initiate and undertake an enquiry whether any candidate or any other person offers any assistance or not. If assistance is offered by rivals in the form of objection well and good but even if no such objections are filed the Returning Officer is not relieved of his obligation to undertake this enquiry if he deems it necessary. But it should be fully realised and this is most important that in either case the enquiry is summary. This decision rendered by the Returning Officer who is not a Court, with or without the assistance of anyone else, may be left undisturbed as happened in the present case or
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it may be reviewed by the Commissioner of the Division, or the District Magistrate as the case may be. This revision is possible in two ways. On the appeal filed against the decision of the Returning Officer by the aggrieved party in terms of sub-rule (5) or even suo motu. Then comes F sub-rule (7) which is significant and pustulates :- "(7) An appeal shall be disposed of either summarily or after such summary enquiry as the appellate authority may consider necessary." ' Again it is to be noted that whether the appeal is disposed of without any enquiry or after enquiry the mode of disposal remains summary. ' Looking to the whole process involved it cannot be said that the decision of the appellate authority though termed final is a substitute for a judicial verdict rendered after thorough enquiry on appreciation of all the evidence that the parties may wish to offer in a trial regulated by recognised procedure. As such, the decision at the scrutiny level is final till such time that the dispute is taken to the Tribunal where, after a regular hearing it should be disposed of by a forum clothed with all the powers of a regular Court. ' The case of the petitioner is even worse. In his case the matter did not even reach the appellate stage before the Commissioner and consequently no decision was ever given by the Commissioner which could be termed final in terms of sub-rule (8) of Rule 19. The learned counsel for the petitioner faced with this situation advances another argument. He contends that as the respondent did not file an appeal against the acceptance of petitioner's nomination paper by the Returning Officer, remedy which was available to the respondent by virtue of sub-rule (5), hey lost the right of filing an election petition. ' With what reasonings the learned counsel can sustain this argument is not clear. Nor can any such bar to the right of the respondent to file an election petition be spelled out from the bunch of rules applicable to "eleclion disputes" under Chapter VII of the Sind Local Councils (Election) Rules, 1979. This contention has no force and is rejected. ' In this connection reference may be made to the views expressed in text books and a few decided cases :- Shaukat Mahmood in his book "Election Laws for 1970" at page 24 under the note "Election petition and appeal" writes :- "Availing of the right of appeal under section 14(5) of the Act is no in the least a condition precedent for the right of making an election petition. The right of appeal provided by section 14(5) is quite independent of the right of making an election petition and a candidate may avail himself of both these remedies. The right of appeal is availed of before an election and the right to move an election petition can be availed of after the election. Hence a person cannot be deprived of his right to file an election petition under section 58 of the Act merely because he had failed to avail himself of the right of appeal under section 14(5) of this Ordinance." ' The learned author at page 23 of the same book has commented a follows :- "In view of section 65 an enquiry before the Election Tribunal must embrace all matters as to qualification and disqualification mentioned in section 14. It cannot be limited to the particular ground of disqualification which was taken before the Returning Officer. ' The Election Tribunal has jurisdiction to decide all questions which can be raised under that section. The fact that a particular ground which could have been raised was not, in fact raised before the Returning Officer does not put an end to his jurisdiction to decide it and the question which he could have decided if it had been raised, could be decided by the Tribunal, when raised. ' The proceeding of an election petition is not an appeal from the order of the Returning Officer rejecting the nomination papers of a candidate, nor is the controversy or investigation before the Election Tribunal confined to the pleas and the evidence before the Returning Officer."
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' Indian Authors Veda Vyasa Premnath Chadha in their book "The Law of Elections and Election Petitions", 1957 Edn. After review of election cases decided by Indian Tribunal has commented as follows at pages 100-N and 100-0 :- "It is open to a party to urge before the Election Tribunal new grounds for supporting the rejection of a nomination, which were not raised before or considered by, the Returning Officer." ' The learned author continuing the discussion writes further at page 100-0 :- "The validity of the nomination paper of a candidate is a matter which concerns not merely the petitioner but also other candidates as well, as other members of the electorate who are interested in exercising or abstaining from exercising their right of franchise. It is, therefore, open to a party to challenge the validity of a nomination before the Tribunal even on grounds not taken before the Returning Office or to challenge the validity even where no objection was raised at the time of the nomination. ' The right of objection to the validity of a nomination paper cannot be waived, nor is any estoppel created against a candidate by his not raising any objection at the time of nomination to the act of the Returning Officer." ' Then comes the important passage which in our opinion is applicable with full force to the case on hand because the provisions of the Indian law are similar to the provisions of Representative of the People Act, 1977 :- "As the decision of a Returning Officer accepting or rejecting a nomination paper is only a summary one, the Tribunal has power to allow the parties to adduce fresh evidence and urge new grounds and to come to a decision on the legality of the order of rejection or acceptance upon all the materials placed before it. The view that the order of the Returning Officer should not be set aside unless it is perverse is incorrect." ' More instructive discussion of the nature of proceedings before the Returning Officer is to be found in the book "Law of Elections and Election Petitions" Volume I, 3rd. Edition, 1962 by H. S. Doabia. At page 90 of the book the learned author under caption "Jurisdiction of the Returning Officer during Scrutiny" has said :- "The Returning Officer is both a ministerial and judicial officer. His decision is not final. He can take an objection to the nomination I paper, although it was not urged by any candidate." 1. PLD 1967 Pesh. 41 : ' In this case the nomination paper of a candidate was rejected by the Returning Officer at the time of the scrutiny, on the ground that the age of the candidate as shown in the electoral-Roll was 21 years and as such he was not qualified to be elected. The candidate filed an election petition against this decision without availing the remedy of an appeal against the decision of the Returning Officer under section 23(5) of the Electoral College Act (Act IV of 1964). Section 23 is substantially the same as rule 19 of the Sind Local Councils (Electoral) Rules, 1979. The Election Tribunal rejected the petition, "as he thought that it would not be advisable to interfere with the order of rejection of nomination paper in that it was open to the petitioner to prefer an appeal against the order of the Returning Officer." Against the above decision petitioner filed a writ petition. Questioning the order of the Election Tribunal, a division bench of the Peshawar High Court held :- "9. It will be plain even from a cursory reading of the language of section 58 that availing of the right of appeal under section 23(5) of the Act is not in the least a condition precedent for the right of making election petition. The right of appeal provided by section 23(5) is quite independent of the right of making election petition and a candidate may avail himself of both these remedies. The right of appeal is availed before election and the right to move election petition can be availed after the election. Judged in the light of the above discussion, the interpretation placed by the Tribunal that the failure of the petitioner to avail himself of the right of appeal would forfeit his right to move election petition is wholly untenable and the rejection of the petition on that ground
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clearly amounts to a refusal to entertain election petition. We accordingly assent the writ petition and remit the case to the ' Election Tribunal for decision of the election petition according to law after taking such evidence as the parties may wish to produce." 2. AIR 1964 Punj. 231. The scope of election petition came to be examined by a Division Bench of the Punjab High Court in India. As the provision relating to scrutiny and Election Petition are substantially the same as in the present case, it would not be out of place to reproduce the opinion of the learned Judges of that Court. At page 234 of the report one of the member of the Division Bench observed "Section 36 of the Act of 1951 unequivocally lays down that the Returning Officer has only to hold such summary enquiry as he thinks necessary. The statute does not lay down anywhere that the Election Tribunal trying the issue relating to improper rejection of a nomination paper in an election petition is bound to confine itself only to the material available to the Returning Officer at the time of scrutiny. Keeping in view the paramount importance of the election of the representatives of the people to our Legislatures the right to seek election could hardly have been intended by the Parliament to depend on summary enquiry of the Returning Officer as contemplated by section 36. ' The matter luckily is not res integra'. I need only refer to a recent decision of the Supreme Court in N. T. Veluswa mi Thevar v. Raja Nainar AIR 1959 SC 422, which in clearest possible terms lays down that the right given to a party to challenge by an election petition the propriety of an order of a Returning Officer rejecting a nomination paper would be illusory if the Tribunal were to base its decision only on the restricted material placed before the Returning Officer at the time of…
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