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Petitioner: Fahad Ali VS Respondent: District Returning Officer, District Sanghar and 5 others
Court Name: Sindh High Court Judge(s): Agha Faisal Title: Fahad Ali vs District Returning Officer, District Sanghar and 5 others Case No.: Election Petition No.01 of 2017 Date of Judgment:2018-03-14 Reported As: 2019 CLC 1496 Result: Appeal dismissed
Judgment ORDER AGHA FAISAL, J.---- This matter is an election appeal instituted on 31.01.2017, impugning the order of dismissal dated 09.01.2017 (hereinafter referred to as the "Impugned Order"), passed by the Court of the learned 1st Additional District Judge/ Election Tribunal Sanghar (hereinafter referred to as the "Election Tribunal"). 2. It may be pertinent to reproduce the operative constituent of the Impugned Order herein below: "From perusal of material placed on record it appeared that appellant has failed to comply with the mandatory provision of Election Laws as he was supposed to file Election Petition under section 46(2) of Sindh Local Government Act, 2013 read with Rule 60(2) Chapter VII of Sindh Local Council Election, 2015 but appellant has filed instant Appeal instead of Petition against the order of respondents Nos.1 and 2 even appellant has not produced any written order of rejection of his application for recounting of ballot papers by the respondents Nos.1 and 2. It seems that appellant has challenged oral order of respondents Nos.1 and 2 which is not maintainable as per law. Furthermore, it is mandatory provision of law under Rule 62(3) of Sindh Local Council Election, 2015 that every Election Petition and every schedul e of annexure to that petition shall be signed by the petitioner and verified in the manner laid down in Code of Civil Procedure, 1908 for the verification of pleadings. Here in this appeal there is no any signature of appellant on each page of Election Appeal as well as on annexure thereon, even affidavit of appellant is not in accordance with law as prescribed under the provision of section 55(3) of Representation of People Act, 1976. In this regard case law is reported in 2005 CLC page 1577 . In view of above discussion and circumstances of instant Appeal I am of humble opinion that Appeal of Appellant Is not maintainable according to law as discussed above, hence, Appeal in hand is dismissed being merit-less with no order as to costs." 3. The matter was considered summarily during the hearing held on 06.03.2018, and then a fixed date and time was given for further proceedings. Thereafter this matter was taken up on the appointed date of 12.03.2018.
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4. The Court evaluated the record on file and then reviewed the Impugned Order in the light thereof. The Court sought the contentions of learned counse l for the appellant upon the reasoning which had been relied upon by the learned Election Tribunal while rendering the Impugned Order . 5. It may be pertinent to reproduce the content of the order dated 12.03.2018: "It is observed from the perusal of the Impugned Order that the election appeal was dismissed inter alia on three grounds being; (i) That post issuance of the notification of a returned candidate in an election petiti on is required to be filed and not an election appeal, which was filed in the present case. (ii) That the appellant had challenged oral orders supposedly passed by the Returning Officer and that no written order had been provided to the learned Trial Court and hence the learned Trial Court had held that a challenge to a purported oral order is not maintainable within the law . (iii) It is stated in the Impugned Order that the requirement of verification of the memorandum along with the annexures were not in accordance with the provisions of the law, hence the learned trial Judge was mandated to dismiss the proceedings filed there-before. The learned Counsel for the appellant was confronted with each of these three grounds for dismissal and her response in respect thereof is encapsulated in seriatim herein below: (a) It is contended by the learned Couns el for the appellant that an election appe al was filed in place of election petition, which was the requirement of the law , due to bona fide mistake of the appellant. (b) It was admitted by the learned Counsel for the appellant that no written orders, purportedly dismissing a recount, were ever filed before the learned trial Court and that his ruling was sought to be obtained upon an oral order , which was allegedly passed by the Returning Officer . (c) The learned Counsel was confronted with the memorandum of appeal / annexures and she expressed her concurrence with the same not having been verified in accordance with the law applicable thereto. The learned Counsel states that she has been busy in the District Bar Elections and therefore is not prepared to conduct the final arguments in this matter today and requests that the matter be adjourned to day after tomorrow . The learned Counsel for the respondent No.4 and the learned A.A.G do not object to the said request and the matter is adjourned to 14.03.2018 when it shall come up for hearing at 1 1:00 a.m." 6. Today when this matter was taken up the appellant was present in person and he stated that this matter has been pending for last one year, whereas it was required to have been decided within three months as per law. The appellant further contended that any further delay in the adjudication hereof would be prejudicial to the interests of the justice. 7. The present election appeal has been filed under section 54 of the Sindh Local Government Act, 2013 (hereinafter referred to as the Act) which stipulates as follows: "54. Appeal against the orders of Tribunal. - (1) Any person aggrieved by a final order of an Tribunal may, within thirty days of the communication of such order , prefer an appeal to the High Court. (2) The High Court shall decide an appeal preferred under subsection (1) within three months". 8. The final orders of a tribunal, as referred to supra, are rendered in election petitions as provided in Section 46 of the Act, which stipulates as follows: "46. Election petition. - (1) Subject to this Act, an election to an office of a council shall not be called in question except by an election petition. (2) A candidate may, in the prescribed manner , file an election petition before the Election Tribunal challenging an election under this Act." 9. The term "prescribed" has been defined in section 3(lii) of the Act and states "prescribed means prescribed by rules ". 10. It follows that an election petition was required to be filed by the appellant, challenging the election to an office of a council, before the learned Election Tribunal in the manner prescribed by the Sindh Local Councils (Election) Rules 2015 (hereinafter referred to as the "Rules").
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11. It has been recorded in the Impugned Order that instead of filing an election petition. as required under the law, the proceedings filed before the Election Tribunal comprised of an election appeal, which is filed under section 18(5) of the Rules. 12. It is pertinent to reproduce section 18 of the Rules herein below: "18. (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 reasonab le opportunity for examining all nomination papers delivered to him under rule 16. (2) The Returning Officer shall in the presence of the persons attending the scrut iny under sub-rule (1), examine the nomination paper and decide any objection raised by any such person to any nomination. (3) The Returning Officer , may either on 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 16 or rule 17 has not been complied with; or (d) the signature of the proposer or the seconder is not genuine: Provided that - (1) 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 such defect to the remedied forthwith; (iii) the Returning Officer shall not enquire into the correctness or validity of any 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 there-for . (5) An appeal against the decision under sub-rule (4) shall lie to Appellate Authority appointed by the Election Commission and shall be filed and disposed of by the date specified in the election programme . (6) An appeal shall be disposed of either summarily or after summary enquiry as the Appellate Authority may consider necessary . (7) The order passed under sub-rule (5) shall be final. (Underline added for emphasis.) 13. The learned counsel for the appellant was confronted with this issue during hearing on 12.03.2018 and while admitting the improper nature of proceedi ngs instituted by the appellant she stated that same was due to bona fide mistake of the appellant. 14. This Court is conscious of the legal maxim "ignorantia legis neminem excusat " (ignorance of the law excuses no one) and it follows that a plea of ignorance of law could not be construed or sustained as a bona fide excuse. This court is fortified by the ratio of the following pronouncements of this High Court in regard hereof. (i) 2017 YLR Note 429 ( Muhammad Ameen and another v . Jawaid Ali and 5 others ). 25 First, ignorance of law is not an excuse and secondly , when Appellants were participating in an election process and wanted to be the elected representatives of their constituency , all the more they should have been vigilant and not indolent. (ii) 2017 YLR 353 ( Zaman and 2 others v . Muhammad Khan ) 9. I am of the considered view that the illiteracy and ignorance of law is no ground to condone the delay of 10 days in filing of Second Appeal. All that needs to be stated is that ignorantia juris non excusat i.e. ignorance of law is not an excuse. In any case; I fail to believe that in today's date and age people are not aware of their legal rights of being entitled to file appeals against the judgments of the courts below . Therefore, the cause shown by the appellants for condonation of delay being unsound and illogical is declined. (iii) 2016 CLC 919 (Cantonment Board Clifton through Cantonment Executive Officer v. Sultan Ahmed Siddiqui and 3 others ). "12 for a thing required to be done in a particular manner under the law has to be done in that manner otherwise it would be deemed illegal. No one can be allowed to plead ignorance of the relevant law to justify taking a course for
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alleviating his problems which is alien to the relevant law . 15. It would follow that institution of the incorrect proceedings could prima facie disentitle the appellant from the grant of the relief sought. 16. It was submitted by the appellant that he was misguided, with respect to the proper proceedings that were required to be instituted, by the improper assistance received from his legal Counsel. 17. The said contention does find favor with this Court inter alia in view of the pronouncement of the Honourable Supreme Court of Pakistan in the case of Khushi Muhammad through L.Rs and others v. Mst. Fazal Bibi and others (PLD 2016 Supreme Court 872), wherein it was held that even if the contention of the appellant was based upon the improper advice of the legal counsel the same could not prima facie absolved the appellant from pursuing the correct process of the law . The relevant portion of the judgment is reproduced herein below: "48. Learned counsel for the appellant has argued that it was through the inadvertent mistake of the counsel that the appeal had been filed before the wrong forum, suffice it to say that as declared earlier , such mistake advice, even if unintentional, simpliciter does not constitute a sufficient cause in terms of Section 5 of the Act, instead there have to be cogent reasons, clearly spelt out and proved on the record, for that purpose. We have perused the application for condonation of delay and as rightly observed by the learned High Court in the impugned judgment, the said application contains a mere narration of the facts leading up to the filing of the appeal before the learned District Judge, and there are no plausible reasons or justifications given for the filing of such appeal before the wrong forum, apart from a feeble assertion that "the delay for filing the Regular First Appeal was not intentional on the part of the petitioner ." As regards the averment in the said application that the time period from the date of filing of the appeal before the wrong forum till the return of the memorandum of appeal for filing before the correct forum should be condoned "because the petitio ners' appeal remained pending before Additional District Judge", we may observe (as held in the earlier part of this opinion) that mere pendency of an appeal before the wrong forum especially when no sufficient cause has been made out shall not be a ground per se or simpliciter for condonation of delay . Besides as mentioned above the memorandum of appeal was ordered to be returned on 23.6.1994 and the appellant never approached the Cour t for receiving the same within reasonable time rather , after considerable lapse of time of about 18 months, it was received on 2.1.1996. There is/was no explanation for such delay , i.e. 18 months and 10 days. It is not the case of the appellant that after the order of return of the memorandum of appeal it approached the Court promptly and it was the Court which took delayed in returning the memorandum of appeal. In light of the above, interference with the impugned judgment of the learned High Court is not warranted, thus the appeal merits dismissal." 18. The second issue raised by the learned Election Tribunal in the Impugned Order was that the appellant sought to challenge purported oral orders of the respondent/s therein, which could not be sanctioned by the Court. 19. In this regard learned counsel for the appellant had submitted on 12.3.2018 that it was correct that no written orders were presented before the learned Election Tribunal. However , it was argued that it was the prerogative of the appellant to obtain the ruling of the learned Election Tribunal upon oral orders, which were duly conveyed to the Election Tribunal by the counsel for the appellant. 20. This Court finds no merit in this argument and is of the view that the learned Election Commission was rightfully disinclined to entertain the appellant's challenge to purported oral orders of the respondents. 21. The third point raised by the learned Election Tribunal in the Impugned Order was that the verification of the pleadings and annexures thereto was not in due conformity with the law. In regard hereof the learned Counsel for the appellant had stated, during the hearing dated 12.03.2018, that the said observation of the learned Election Tribunal was correct. However , she submitted that the same cannot be made the ground for dismissal of the election appeal since it was just and proper for the same to be heard and decided on merits and not mechanically dismissed on the basis of mere technicalities. 22. It is noted that the manner of verification of pleadings and annexures thereto has been prescribed by virtue of section 62(3) of the Rules which states as follow: "(3)Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings."
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23. The relevant provision of the C.P.C. in regard hereof is Order VI, Rule 15. The said provision lays down the manner in which the pleadings are to be verified and stipulates as follows: "15 Verification of pleadings. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify , by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." 24. It was also noted that section 64 of the Rules stipulates as follows: "64. If the Tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission." 25. It would follow that the Election Tribunal has no option but to dismiss any proceedings instituted there before which were not in due C compliance with the mandatory provisions of applicable law . 26. The superior Courts have maintain ed that the requirements prescribed for verification of pleadings and annexures are mandatory in nature. 27. It was held in the case of Muhammad Ameen and another v Jawaid Ali and 5 others , reported as 2017 YLR Note 429 , as follows: 9. The two reported decisions of the Honourable Supreme Court provide a direct answer to the above objections; (i) 2014 SCMR page-1015 and (ii) 2016 SCMR page-1312 ; after considering contentions of the parties, Court in these two reported decisions has very clearly laid down that if the issue of maintainability is raised then it is to be decided first by the Election Tribunal. It would be advantageous to reproduce the relevant portion of the judgments in seriatim as follows:- "If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/T ribunal should decide that preliminary objection. Because if the objection is sustained then the Court is left with no option but to dismiss the petition." ( 2014 SCMR page-1015 ). "10. In conclusion to our discussion we are of the opinion that when an objection with regard to the maintainability of an election petition for non-compliance of a mandatory provision is raised then the Tribunal should decide that very objection firs because if such objection sustained then the Tribunal left with no option but to dismiss the election petition," ( 2016 SCMR page-1312 ). 10. Adverting to the other limb of arguments of Appellant's side that the main statute governing the election matters, viz. the SLGA 2013, since does not provide for any such penal consequence of dismissal of petition in case the said Election Petitions were not properly verified, hence, the afore-referred Election Rules framed under the above statute cannot enlarge the scope of the main statute; in other words , the above mentioned Election Rules cannot operate as mandatory provisions if the main statute has not provided for any such consequence. Since in all the Election Petitions the legal issue about their maintainability was involved, therefore, in my view the learned Election Tribunal was justified to the extent of taking up the preliminary legal issue first before proceeding further . 11. I have given a thoughtful consideration to the above proposition of law. Unfortunately , afore-referred Election Rules have been framed under the statute; SLGA, 2013. Going through different treaties on the Interpretation of Statutes, the position, which emerges is that if the Rules are framed under an enabling clause of a main statute then such Rules become Statutory Rules and are to be considered part and parcel of the Statute; consequently , such Statutory Rules then deserve to be governed by same principle of interpretation which is applicable to the Enactment itself. Meaning thereby that if a Rule provides a penalty or punishment for its non-compliance, then that Rule shall be interpreted as a mandatory Rule. It is also necessary to give referen ce of well-known commentaries on the above point of law (i) Understand ing Statutes 'Canons of Construction' by Mr. S.M. Zafar , Second Edition (2002), relevant pages-783 and 784, and the relevant paragraphs whereof are reproduced hereunder:--
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Statutory rules stand on a different footing. Though a bye-law must not be repugn ant to the statute or the general law,bye-laws and rules made under a rule-making power conferred by a statute do not stand on the same footing as rules are part and parcel of the statute. Parliament or Legislature instead of incorporating them into the statute itself ordinarily authorizes Government to carry out the details of the policy laid down by the Legislature by framing rules under the statute and once the rules are framed, they are incorporated in the statue itself, and become pan of the statute and the rules must be governed by the same rules as the statute itself. Hence, a statutory rule cannot be challenged as unreasonable." "Mandatory and Directory rules: A rule is mandatory if violation thereof entails any penalty or punishment. If non-compliance of a rule entails no penalty , rule is directory . Act done in disregard of a mandatory provision of law or rule is only invalid and unlawful. Such is not the case where only some rule of directory nature has been violated." (Underlining is to add emphasis) and (ii) NS Bindra's Interpretation of Statutes, Ninth Edition, the relevant paragraph whereof is reproduced hereunder:- "The right to hold an election to stand in an election, and to be elected thereto as commissioner , are all rights which spring under the statute. There is no common law right which is involved. Therefore, the provisions of the Act and the rules made hereunder must be strictly followed in constituting the municipality and in regulating the functions thereof Similarly , a disqualifying or disabling provision of law, for instance election rules, must be subject to strict construction." (Underlining is to add emphasis) 12. Secondly , the Honourable Supreme Court of Pakistan in one of its reported Judgments, viz. PLD 1985 SC 282 (Shah Muhammad v. Election Tribunal, Urban Local Council,Chishtian and others ), after taking into account various case laws, has interpreted the provisions of Punjab Local Council (Election) Rules, 1979 to be mandatory in nature and held as under:-- Thus there is no escape from the conclusion that the law requires that every balloting paper must be signed by the Presiding Officer , and when the ballot-boxes are opened for the purpose of counting the ballet-papers, all these ballot-papers which do not bear the signatures of the Presiding Officer must be excluded. These provisions are express and categorical and there is no scope for considering these provision s to be, of a directory nature." (Underlining is to add emphasis) 13. Thirdly , even in the above mentioned reported case of Zia-ur -Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015 ), the Honourable Supreme Court in paragraph-7 has held, that when the law, prescribed certain form for Election Petition and its verification on oath and entails a penal consequence for its noncompliance, the provisions is to be interpreted as mandatory . It is also a settled Rule and the term "Law" is of wide import and it does include the Statutory Rules. Fourthly , the relevant law in the instant case is the SLGA, 2013 and its Section 46 pertains to Election Petitions. It would be advantageous to reproduce Section 46 of SLGA, 2013 as under:-- "46. Election petition.--(1) Subject to this Act, an election to an office of a council shall not be called in question except by an election petition.. (2) A candidate may, in the prescribed manner , file an election petition before the Election Tribunal challenging an election petition. 14. From the above, It is not difficult to ascertain the mandate of law, that is, the governing statute SLGA, which enjoins that Election Petitions are to be filed in the "Prescribed Manner". This term 'Prescribed' is mentioned in the definition clause of the said SLGA, 2013; Section 2 (iii), which means Prescribed by Rules. It means that the Election Petitions are to be filed as mentioned in the relevant Election Rules, which have already been referred to in the preceding paragraphs. If the main Statute-SLGA, 2013 had contained the provisions about verification of petitions/pleadings without a consequence or penalty , then the arguments of learned counsel for the Appellants would have been sustained, that if the main Statute is not providing…
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