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Petitioner: SARDAR KHAN VS Respondent: Haji ABDUL GHAFFAR AND 3 OTHERS
Court Name: Balochistan High Court Judge(s): Mir Hazar Khan Khoso, Ajmal Mian Title: SARDAR KHAN vs Haji ABDUL GHAFFAR AND 3 OTHERS Case No.: Constitutional Petition No, 71 of 1984 Date of Judgment:1985-05-21 Reported As: PLD 1985 Quetta 167 Result: Petition allowed
JUDGMENT
JUDGMENT ' AJMAL MIAN, ACTG. C. J.-This petition is directed against the order dated 8th April, 1984 passed by the learned District Judge-cum-Election Tribunal, Quetta i,e, the respondent No, 4 whereby the election of the petitioner from Ward No, 7 of Municipal Committee, Zhob was declared void and the respondent No, 2 was declared in his place as elected. The brief facts leading to the filing of the above petition are that the petitioner, respondents Nos. 1 and 2 and some other candidates contested the election from the above ward. However, the respondent No, 1 in addition to Ward No, 7 had also filed nomination papers from Ward No, 21, from where on scrutiny he was unofficially declared as elected unopposed. A Not fiction to that effect was issued on 14th September, 1983. Inspire of the fact that the respondent No, 1 was declared as elected unopposed on 26th July, 1983, he participated in the election of Ward No, 7 along with the other candidates as observed hereinabove. It may be stated that the respondent No, 1 had filed an appeal under rule 18 of the Baluchistan Local Government (Elections) Rules, 1983 (hereinafter referred to as the 'Rules') on the ground that the petitioner was disqualified in terms of clause (h) of section 21 of the Baluchistan Local Government Ordinance, 1980 (Baluchistan Ordinance II of 1980) (hereinafter referred to as the 'Ordinance), but the respondent No, l's above appeal was rejected by the Commissioner-Appellate Authority Quetta Division-Quetta by his order, dated 13th October, 1983 (Annexure 'H' to the petition). The operative portion of the order is as follows :- "Appeal against R. O's. Order rejected." ' After the counting of voting's, it was found that the petitioner had secured the highest votes namely, 69, whereas the next highest votes were 44 in favour of respondent No, 2. The other two remaining candidates, namely Ghyasuddin secured 29 votes and respondent No, 1 3 votes. The
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petitioner was notified as elected candidate under Notification No, 8-117/83 (P. L. G.), dated September, 1983. The respondent No, 1 filed an election petition on 15th October, 1983. Simultaneously, on the same day, he also filed C. P. No, 205/83 in this Court, which was not proceeded with on the ground that the respondent No, 1 had already filed an election petition. The above election petition was contested by the present petitioner, but the learned Election Tribunal by its aforesaid impugned order, dated 8th April, 1984 allowed the same in the above terms. After the disposal of the above Election Petition the respondent No, 1 withdrew the above C. P. No, 235/83 from this Court, by an order, dated 18th April, 1984. The petitioner being aggrieved by the impugned order Of the Election Tribunal has filed the present petition. 2. The petitioner during the pendency of the above petition filed an application on 20th May, 1984 under Order VI, rule 17, C. P. C. (C. Misc. No, 220/84) praying for the following reliefs :- "It is, therefore, to pray that the petition be allowed to be amended to bring on record of this pending petition the fact that the Constitutional petition was filed simultaneously with the filing -of the Election Petition that was not disclosed in the Election Petition, and that the same was withdrawn after the final decision of the Election Petition. Additionally the grounds as urged in the Constitutional Petition No, 205 of 1983 be allowed to be incorporated in the petition since pending and further copy of the Petition No, 205 of 1983, be allowed to be brought on the record of the case. ' This application was taken up on 29th May, 1984 and the following order was passed :- C. Misc. 220/84.-Through this application learned counsel has sought amendment of the petition so as to incorporate the fact of filing Constitutional Petition No, 205/83 by the respondent No, 1 in this Court. Let this application be heard alongwith the main case. The fact sought to be brought on record is now very well in the notice of the Court and suitable orders shall be made at the time of final hearing of the case." ' After that the petitioner filed another application under section 151, C. P. C. (C. Misc. No, 577/84) on 22nd December, 1984 pressing for the amendment, which application was dismissed by an order, dated 7th April, 1985 inter alia, on the ground that the above earlier Application No, C. Misc. 220/84 would be taken up alongwith the main petition as already ordered. 3. In support of the above petition, Mr. Basharatullah, learned counsel for the petitioner has urged as follows :"(I) That the respondent No, l's election petition was not competent, (ii) That respondent No, 1 had no locus standi to file the election petition. (iii) That the petitioner was not disqualified in terms of clause (h) of section 21 of the 'Ordinance' and (iv) That if the election petition of the respondent No, 1 was to be allowed the only relief which could have been granted was the declaration of the election as void but the respondent No, 2 could not have been declared as elected." 4. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the respondents Nos. 1 and 2 has contended as under :- (i) That the respondent No, l's election petition was competent. (ii) That the respondent No, 1 had the locus standi to file the above election petition as apart from being a voter of Ward No, 7 he was also a candidate. (iii) That the petitioner had the pecuniary interest in the affairs of the Municipal Committee, Zhob at the relevant time and, therefore, was disqualified within the purview of clause (h) of section 21 of the `Ordinance'. (iv) That the reliefs granted by the learned Election Tribunal are in in consonance with rule 74 of the 'Rules'. 3. Before taking up the above contentions raised by the learned counsel for the petitioner, it may be pertinent to point out that the `Ordinance' was first amended by the Ordinance IX of 1983 gazetted on 11th July, 1983 whereby sections 21 and 22 were substituted and after that by Ordinance X of 1983
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(which was made applicable retrospectively with effect from 11th July, 1983) inter alia, -subsection (2) of section 21 was added to. ' It may also be pertinent to dilate on the petitioner's above amendment application, whereby he sought the reliefs quoted hereinabove. ' It may be noted that the petitioner by his above amendment application had prayed for amendment to bring on record : (1) the fact that the respondent No, 1 had filed the constitutional petition simultaneously with the filing of the election petition ; (ii) that the above petition was withdrawn after the final decision of the election petition ; and (iii) the grounds as urged by the respondent No, 1 in his C. P. No, 205/83 be allowed to be incorporated in the above petition and a copy of the same be allowed to be brought on record. 6. As regards the prayer referred to hereinabove in sub-paragraphs (i) to (iii) it will suffice to observe that these facts are already on record and, therefore, there is no need for any formal amendment of the petition. We have taken notice of the above facts during the arguments of the main petition. However, as regards the prayer referred to in sub-paragraph (iv) it may be stated that we were not inclined to grant the same as the Petitioner should have specifically stated the actual amendment, which he wanted to incorporate in his petition by re-producing the same in his application for amendment, as the grounds mentioned in the above C. P. No, 205/83 run into two and a half pages and some of them are, in fact contrary to what has been urged by the petitioner in the present petition. To demonstrate the above factual position, it will suffice to reproduce the grounds 'A' to 'C' which read as follows :- (A) That the 1st respondent being Octroi Contractor for the running contract for the years 1983-84 and as also being enlisted contractor for the said local council and thus having pecuniary interest in the affairs of Municipal Committee Zhob was disqualified to be a candidate for election thereto under clause (h) of subsection (1) of section 21 of Baluchistan Ordinance II of 1980. (B) That for the aforesaid reason the order of Returning Officer (respondent No, 2 and of the Appellate Authority (respondent) No, 3) are without lawful authority. (C) That for the grounds mentioned as A and B above the election of the 1st respondent as member of Municipal Committee Zhob was void. The gazette Notification (Annexure '0') in respect of 1st respondent as being the returned candidate is of no legal effect." 7. However, the main ground which Mr. Basharatullah had canvassed at the Bar was that rule 70 of the 'Rules' was ultra vires of the powers of the rule making authority and that it was also repugnant to subsection (2) of section 21 of the 'Ordinance'. In this regard, it may be pointed out that if the petitioner wanted to press the above ground by making amendment in the petition, there was no plausible reason for the petitioner not to have mentioned this in his amendment application and the inclusion of this ground would have necessitated the impleading of the Government of Baluchistan which had framed the 'Rules'. Neither in the above amendment application, nor by any other separate application, the petitioner had requested for arraying the Government of Baluchistan as a respondent to the above petition. ' In this view of the matter we have declined the petitioner's request to incorporate in the present petition the grounds urged by the respondent No, 1 in his above Constitution Petition No, 205/83. 8. Adverting to the first contention of Mr. Basharatullah learned counsel for the petitioner that the respondent No, l's election petition was not competent, it may be observed that in furtherance of his above submission, he has referred to the above section 21 as amended by Ordinance X of 1983 rules 18 and 70 of the 'Rules'. In order to understand the respective contentions of the learned counsel for the parties, it may be advantageous to re-produce herein below, section 21 of the `Ordinance' and rules 18 and 70 of the 'Rules' which read as follows :- Section 21 :
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"Disqualification of a candidate (1). -A person shall be disqualified to be a candidate of a local Council if he :- (a) ceases to be a citizen of Pakistan; (b) is an undercharged involvement; (c) is of unsound mind and has been so declared by a competent Court; (d) is a whole time salaried official of the Federal Government or a Provincial Government or of a Public or statutory Corporation, a local council or other local authority ; (e) has been on conviction for an offence involving moral turpitude, sentenced to imprisonment for a term of not less than six months. ( f) has been dismissed as a public servant within the meaning of Pakistan Penal Code (Act XLV of 1860); (g) is a retired Servant of the Federal Government or a Provincial Government or of a public or statutory corporation, a local council or other local authority, unless two years have elapsed from the date of such retirement; (11) is under contract for work to be done or goods to be supplied to the Local Council concerned or has otherwise any pecuniary interest in its affairs; (i) is disqualified from the membership of any elective body under any law for the time being in force ; and ( j) has been or is engaged directly or indirect in subversive or anti-State activities or propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan or the sovereignty, integrity or security of Pakistan." Explanation.-Anti-State activities shall include instigation to students, labours or any other section of people with a view to promote lawlessness or disorder. (2) No order passed under subsection (1) shall be called in question in any Court. ' Rule 18. Appeal against acceptance or rejection of nomination papers. -(1) A person whose nomination paper has been rejected under rule 17 may file appeal against such rejection by a date as may be notified by the Election Authority in this behalf which shall not be beyond seven days following the date of such rejection to the Appellate Authority, and the orders passed on such appeal shall be final. (2) Any person who has reasonable grounds to challenge the acceptance of any nomination paper may prefer any appeal, by a date notified by the Election Authority in this behalf which shall not be beyond seven days following the date of such acceptance, to the Appellate Authority specified under sub-rule (1). If the appeal is allowed, the name of the person whose nomination paper was accepted by the Returning Officer shall be ordered to be deleted from the list of validly nominated candidates. An order passed on such appeal shall be final. (3) The appeal shall be addressed to the Officer appointed under sub-rule (1) and may be filed by any aggrieved person. (4) An appeal shall be in the form of memorandum which shall state the date of the acceptance or rejection of the nomination, as the case may be and the grounds of appeal and shall be accompanied by certified copy of the order accepting or rejecting the nomination. (5) An appeal shall be disposed of either summarily or after such summary enquiry as may be necessary. (6) If the appeal is allowed, the name of the candidate shall be entered or deleted by the Returning Officer, as the case may be in or from the list of validly nominated candidates. (7) There shall be a fee of rupees one hundred for filing appeal against the acceptance or the rejection of a nomination paper which shall be deposited with the Appellate Authority appointed under sub-rule (1) at the time of filing appeal. (8) The Appellate Authority shall remit the cash deposit to Election Authority.
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(9) The deposit under this rule shall be non-refundable." ' Rule 70. Grounds for declaring election of returned candidate void.-(l) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that- (a) the nomination of the returned candidate was invalid ; or (b) the returned candidate was not on the nomination day qualified for or was disqualified from being elected as a member ; or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice ; or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. (2) The election of a returned candidate shall not be declared void on the ground- (a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by or with the connivance of his election agent and that the candidate and the election agent took all reasonable precautions to prevent its commission ; or (b) that any of the other contesting candidate was, on the nomination day, not qualified for or was disqualified from being elected as a member." ' It may be noted that subsection (1) of section 21 describes the disqualifications of a candidate which, inter alia, includes clause (h), which provides that a person shall be disqualified to be a candidate of a Local Council, if he is under contract for work to be done or goods to be supplied to the Local Council concerned or has otherwise any pecuniary interest in the affairs of the Council. It may further be noticed that subsection (2) of the above quoted section 21 provides that no order passed under subsection (1) shall be called in question in any Court. It may also be stated that sub-rule (1) of rule 18 confers right upon a candidate to file an appeal against the rejection of his nomination paper, whereas sub-rule (2) entitles any person who has reasonable ground to prefer an appeal and if the appeal is rejected under sub-rule (1) the order passed in such appeal shall be final whereas if the appeal of any other person is allowed, under sub-rule (2) the Returning Officer is to be ordered to delete the name of the candidate from the list of validly nominated candidates and an order passed under the above sub-rule (2) would also he final. It may also be noticed that one of the grounds for declaring election of a returned candidate void provided for in the above quoted rule 70 is that the returned candidate was not, on the nomination day qualified for or was disqualified from being elected as a member. 9. Having dealt with the above relevant section and the rules, we may refer back to the above first contention of the learned counsel for the petitioner. It was vehemently urged by Mr. Basharatullah learned counsel for the petitioner that since the decision on the question of disqualification has been made final under subsection (2) of section 21, the above rule 70 providing disqualification a ground for declaring an election void, is ultra vires of above suosection (2) of section 21 of the 'Ordinance' and is also irreconcilable with the above sub-rule (2) of rule 18. The plea that the rule being ultra vires as pointed out hereinabove, has not been raised in the petition and this could not have been raised without impleading the Government of Baluchistan. However, we have examined' the merits of the above contention. Mr. Basharatullah in order to reinforce his above submission has referred to the case of Province of East Pakistan and another v. Nur Ahmed and another (1) and the case of Qazi Abdul Kafil Khan v. Faqir and another (2). In the former case, the Honourable Supreme Court while construing East Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960 in juxta-position with the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960 reiterated its earlier view taken in the case of Sh. Abdur Rehman v. The Collector and Deputy Commissioner, Bahawalnagar and others (3), in which it was held that though there was no specific provision in the Basic Democracies Order entitling the Member proceeded against for removal to an opportunity to show cause the member was entitled to such
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an opportunity on the principles of natural justice. The Court while rejecting the contention advanced by the learned counsel for the appellant, Province of East Pakistan, that the . Person proceeded with for removal was not entitled to an opportunity to show cause, observed as follows :- "Reading the rule in the above manner would be tantamount to enlarging its scope by depriving the aggrieved party of the right of being heard which he has. The Basic Democracies Order does not deprive him of that right. The rule-making Authority, therefore, cannot clothe itself with power which the Statute itself does not give." ' Whereas, in the latter case, a D. B. Of the erstwhile High Court of West Pakistan at Peshawar held that the Rules and bye-laws are to be consistent with the relevant Statute and also not to be repugnant to other laws in force. There cannot be any cavil with the propositions of law enunciated in the above cited cases. The question is, whether in] the instant case, there is any repugnancy between rule 70 and subsection (2)'C of section 21 of the Ordinance'. In our view, there is no repugnancy or conflict between the above Rule and the above provision of the `Ordinance'. It may again be observed that subsection (2) of section 21 of the 'Ordinance' has provided that no order passed under subsection (1) shall be called in question in any Court. The object of the above provision seems to be that at the stage of filing of the nomination paper, decision given on the question of disqualification of a candidate by the" authority provided under rule 18 would not be questioned in any Court. However, this does not lead to infer that this question cannot be reagitated before a forum provided by the 'Ordinance' read with the `Rules' i,e, ; the Election Tribunal. The object of setting-up an Election Tribunal is to provide forum to the parties concerned other than a Colin of law to agitate on the questions which were decided by the E Returning Officer or by the Appellate Authority at the stage of the election. It was vehemently urged by Mr. Aslam Chishti, learned counsel (1) PLD 1964 SC 451 (2) PLD 1962 (W. P.) Pesh. 51 (3) PLD 1964 SC 461 for the respondents Nos. 1 and 2 that the word `Court' employed in the above subsection (2) of section 21 of the `Ordinance' does not cover an Election Tribunal provided for under the 'Ordinance' read with the `Rules'. We are inclined to subscribe to the submission that the words any Court `used in subsection (2) of section 21 of the 'Ordinance' would not cover an Election Tribunal provided for in the `Ordinance' read with Rules'. ' There seems to be also no conflict or inconsistency between sub-rule (2) of rule 18 and rule 70 of the `Rules'. It has been rightly pointed out by Mr. Aslam Chishti, that rule 18 deals with the stage of pre-elections, whereas rule 70 deals with the stage of post-elections. Furthermore, even if it is to be assumed that there is a conflict between sub-rule (2) of rule 18 and clause (b) of sub-rule (1) of rule 70 of the `Rules' which provides disqualification as a ground for declaring election of returned candidate void, the Court is to endeavour to harmonise and reconcile but if such an attempt fails, the provision last in order is to prevail. Since rule 70 is last in order it shall prevail over rule 18. In this regard, reference ma be made to paragraph 166 of the well-known book, namely the Construction of Statutes' by Earl T. Crawford, 1940 Edition at pages 262 an 263, which reads as under :- Conflicting provisions.-As above suggested the Court should seek to avoid any conflict in the provisions of the statute by endeavouring to harmonise and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoutedly each provision was inserted for a definite reason. Often by considering the enactment in its entirety what appears to be on its face a conflict may be cleared up and the provisions reconciled. Consequently, that construction which will leave every word operative will be favoured over on which leaves some word of provision meaningless
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because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable, if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the largely because of the principle of implied repeal." ' We may again observe that to us, there seems to be no inconsistency between sub-rule (2) of rule 18 and the above clause (1)) of sub-rule (1) of rule 70 of the `Rules'. 10. It was then contended by Mr. Basharatullah, learned counsel for the petitioner that in sub-rule (1) of rule 65, it has been provided that no election shall be called in question except by Election Petition made by any person and that `any person' does not include any aggrieved person who had filed an appeal under sub-rule (2) of rule 18 of the `Rules' against the acceptance of a nomination paper. In this behalf, it ma be pertinent to point out again that in sub-rule (2) of rule 18 of the 'Rules' it has been provided that any person who has reasonable ground to challenge the acceptance of any nomination paper may prefer an appeal and that the order passed on such appeal shall be final whereas sub-rule (3) of the above rule 18 provides that the appeal shall be addressed to the Officer appointed under sub-rule (1) and may be filed by any aggrieved person. It has, therefore, been contended by the learned counsel for the petitioner that an aggrieved person in terms of sub-rule (3) of rule 18 cannot be any person mentioned in sub-rule (1) of rule 65. To put it precisely, the contention was that since the respondent No, 1 as an aggrieved person had availed of the remedy by way of an appeal in terms of sub-rule (2) of rule 18 he was not entitled to re- agitate the same question as 'any person' within the…
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