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Petitioner: Mirza MUQUEEM BAIG VS Respondent: ELECTION AUTHORITY HYDERABAD AND I5 OTHER
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Ajmal Mian Title: Mirza MUQUEEM BAIG vs ELECTION AUTHORITY HYDERABAD AND I5 OTHER Case No.: Constitutional Petition No. D-849 of 1981 Date of Judgment:- Reported As: 1982 CLC 291 Result: Petition dismissed
JUDGMENT
JUDGMENT NASIR A. ZAHID, J.-This petition under Article 9 of the Provisional Constitution Order, 1981, has been filed by the petitioner Mirza Muqueen Baig, challenging the judgment dated 24-8-1981 of the Election Tribunal, Hyderabad, allowing Election Petition No. 44 of 1979, filed by respondent No. 3 and setting aside the election of the petitioner and ordering fresh election. In this constitutional petition respondent No. 1 is the Provincial Election Authority, respondent No. 2 is the Election Tribunal and respondents Nos. 3 to 11 are private respondents, who alongwith the petitioner had contested election of Municipal Councilor, Municipal Corporation, Hyderabad, held on 25-9-1979 for Unit No. 16, U. C. 11, Fort Area, Hyderabad. In this petition respondent No. 12 is the Senior Civil Judge, Hyderabad, who was the Returning Officer, respondent No. 13, is Mst. Feroza, the Presiding Officer for the female polling station and respondent No. 14 is the Presiding Officer of the male polling station with respondents , Nos. 15 and 16. As Assistant Presiding Officer of the male polling station. In the aforesaid election, the petitioner obtained 687 votes with respondent; No. 9 obtaining 399 votes, respondent No. 6, 371 votes and respondent No. 3, 270 votes. Other respondents who had contested the said election obtained lesser number of votes. The petitioner having polled the highest number of votes was declared elected. Respondent No. 3, Farooq Shahid, who had obtained 270 votes, filed an application before the District and Sessions. Judge, Hyderabad on 1-10-1979 asking for disqualification of the petitioner as a candidate on the ground that he had used the influence of a political party. In the said application to the District and Sessions Judge, Hyderabad, the provision of law under which the said application was moved was not given but the subject was given as follows :-
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"Political Parties influence and rigging of election in Unit No. 16 M. C. H. (Union Committee No. 11), Hyderabad, Sind." It was contended on behalf of the petitioner that the aforesaid applica--tion dated 1-10-1979 of respondent No. 3, addressed to the District Judge, Hyderabad, is an application under section 37-A of the Sind Local Govern--ment Ordinance. 1979, which position has not been admitted by the counsel appearing for represented respondents. However, it is an admitted position that the said application is still pending consideration before the District Judge, Hyderabad . . . . -_ . , . 2. On 25-11-1979, respondent No. 3 (Farooq Shahid) filed an Election Petition under rule 65 of the Sind Local Council (Election) Rules, 1979 making all the parties to this petition (except the Provincial Election Authority and the Election Tribunal) as respondents. Written statements were filed by private parties i.e. Those, who had contested the elections. The Election Tribunal Hyderabad, directed the parties to file their affidavits-of-evidence by way of examination-in-chief. Respondent No. 3 filed affidavits of 7 persons including himself but, out of these 7 persons, 3 persons were not offered for cross-examination. Respondent No. 11 also filed -his own affidavit and offered himself for cross-examination. None of the other respondents filed their affidavits-of-evidence. Petitioner filed his own affidavit and affidavits of 3 witnesses in support of his case and these 4 persons offered themselves for cross-examination. Respondents Nos. 6 to 10 had filed their written statements but did not take part in the proceedings. 3. The Election Tribunal framed 9 issues which are as follows :- Issue No. L-Whether the petition is not maintainable? Issue No. 2.-Whether respondent No. 1 contested the election as official candidate of the P. P. P. And ail election campaign was launched by him in the name of his political party, party's demise Chairman, party's present Chairman and in the name of "Miss Baynazir Bhutto"? Issue No. 3.-Whether respondent No. 1 by arrangements got Mst. Ferozabano and others staff posted at the Polling Station of his own choice? In consequence material illegalities were committed at the Polling Station effecting the election as whole? Issue No. 4.-Whether the Returning Officer and other polling staff acted as partisans detrimental to the interests of all the candidates except respondent No. 1 ? Issue No. S.-Whether there has been election, and casting of the votes in legal valid and proper manner ? Issue No. 6.-Did the respondent No. 1 file a false declaration in respect of election expenses ? . Issue No. 7.-Did the respondent No. 1 violate any rules of election? Issue No. 8.-Is the election illegal, void and without lawful authority? Issue No. 9.-What order? The Election Tribunal Hyderabad, in his judgment dated 24-8-1981 took Issues Nos. 2, 3, 4, 5 and 8 together and decided the same in the affirmative, Then he took Issues Nos. 6 and 7 together and held that the petitioner bad filed a false return about the election expenses and had violated rule 61 "` of the 1979 Election Rules, and then holding the Election Petition of respondent No. 3 -to be maintainable, decided Issue No. 1 in favour of respondent No. 3. On the basis of his findings on the issues, the Tribunal declared the election held on 25-9-1975 as illegal, null and void and set aside the same and ordered fresh election in the constituency. It is against this judgment dated 24-8- 1981 of the' Election Tribunal, the present constitutional petition has been filed by the petitioner. 4. We have heard at length the arguments of Mr. Nasim Faruqui, learned counsel for the petitioner, Mr. A. Q. Halepota, learned counsel for respondent No. 3 and Mr. Aftab Ahmed Shaikh, learned counsel for respondents Nos. 4, 6 to 10. Other respondents were not represented before us. Mr. Nasim Faruqui, learned counsel for the petitioner, bad contended that as per the Election Petition filed by respondent No. 3, election of the petitioner was challenged on account of the following 3 grounds :-
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(i) The petitioner was disqualified in view of section 37-A of the 1979 Ordinance; (ii) The petitioner had filed a false return of election expenses; (i.e) The petitioner was guilty of corrupt and illegal practices. Messrs A. Q. Halepota and Aftab Ahmed Shaikh, learned counsel for the represented respondents, agreed with Mr. Nasim Faruqui on the point that allegations against the petitioner fell into the aforesaid three categories, and this also appears from the election petition itself. In the circumstances; arguments were addressed by all the learned counsel on the aforesaid three points. ' 5. As regards the first point i.e. Disqualification of the petitioner in view of section 37-A of the 1979 Ordinance, it would be necessary to make a reference to the aforesaid section which is in the following terms :- "Secti 37-A.-(I) Notwithstanding any other provisions of this Ordinance, no person contesting an election under this Ordinance shall for the purpose of such election directly or indirectly- (a) give out himself as a candidate or nominee of political party, or display or carry any insignia, flag or any such other thing indicating his association with or affiliation to such party; (b) seek vote or. Support on party basis or in terms of the manifesto of any political party or by attributing party affiliation to his opponent; (c) claim or receive any financial or other assistance from any political party. (2) If the Election Authority after such inquiry as it deems .Fit is satisfied that any person is acting or has been elected in contravention of the provisions of subsection (1) it shall order that such person shall cease to be a candidate for such election or, as the case may be, to be member, and shall stand disqualified for being elected as a member for a period of four years: Provided that no such order shall be passed without affording the person concerned, an opportunity of being heard. (3) The Election Authority may require any Judicial Officer of the rank of a District Judge or Additional District Judge to conduct an enquiry under subsection (2) and pass such Orders as he deems fit." Subsection (1) of section 37-A places an embargo regarding association or connection with a political party and subsection (2) lays down that if the Election Authority is satisfied after holding inquiry that a person is acting or has been elected in contravention of subsection (1), it shall order that such person shall cease to be a candidate or to be a member and shall stand disqualified for a period of 4 years. Subsection (3) authorises the Election Authority to require any Judicial Officer of the rank of a District Judge or Additional District Judge to conduct an inquiry under subsection (2) and pass orders. Under the authority conferred by sub--section (3) of section 37-A, the Provincial Election Authority issued the following notification dated 16-9-1979, which was published in part 1, of the Sind Government Gazette on 17-9-1979 :- "In exercise of the powers conferred by subsection (3) of section 37-A of the Sind Local Government Ordinance, 1979, the Election Authority is pleased to require all District Judges in the Province to conduct inquiry in the cases under subsection (2) of the aforesaid section arising within their respective jurisdiction and pass such orders as they deem fit." It was canvassed by Mr, Nasim Faruqui, learned counsel for the petitioner, that any allegation or charge which was covered by subsection (1) of section 37-A of the Ordinance, was within the exclusive jurisdiction of the Election Authority or its delegatee. The precise contention in this behalf was that the allegation or charge relating to the association with or help of a political party against the petitioner can only be competently inquired into and necessary orders passed by the authority mentioned in section 37-A and not by the Election Tribunal hearing an election petition under the 1979 Rules. It was further contended that the designated authority under section 37-A is the Provincial Election Authority and, pursuant; to the aforesaid notification dated 16-9-1979 of the
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Provincial Election,. Authority issued under the powers conferred by subsection (3), all District Judges in the Province of Sind are also competent to conduct the inquiry and to pass orders. According to Mr. Nasim Faruqui, the Election Tribunal in this case was not competent to hold any inquiry or pass any order in respect of any charge or allegation covered by subsection (1) of section 37-A. It was further contended that respondent No. 3 himself has filed the application under section 37-A on 1-10-1979 before the District Judge, Hydrabad, which is competently being inquired into by the District Judge, in view of the notification dated I6-9-1979 of the Provincial Election Authority and by moving the said application under section 37-A before the District Judge, Hyderabad, respondent No. 3 has himself taken up the position that the charge relating to association with or help by a political party cannot be competently raised before and decided by the Election Tribunal. 6. Mr. A. Q. Halepota, learned counsel for respondent No. 3, referred to section 37 of the 1979 Ordinance, which relates to qualifications and disqualifications of persons for election as members and drew our attention specially to section 37(2) (f ), which provides for disqualification under "any law" According to Mr. Halepota the words "any law" in section 37 (2) (f) would cover subsection (1) of section 37-A also. It was the contention of Mr. Halepota that there was no bar under the law for taking up the objection relating to a political party in an election petition and the election petition of respondent No. 3 containing charges relating to the association of the petitioner to a political party as well as charges relating to return of election expenses and illegal and corrupt practices could be inquired into and a decision given by the Election Tribunal, which in this case was Mr. Abdul Hamid Baloch, who was the Special Judge Anti-Corrup--tion, Hyderabad, a Judicial Officer of the rank of a District Judge. It was urged that the Election Petition was filed before the Election Authority, which referred the petition for decision to Mr. Abdul Hamid Baloch not only as the Election Tribunal but also as the delegatee under subsection (3) of section 37-A of the 1979 Ordinance. Referring to the application dated 1-10-1979, filed by respondent No. 3, before the District Judge, Hyderabad, the contention of Mr. Halepota was that the same may not be treated as an application under section 37-A but merely as a miscellaneous applica--tion. According to learned counsel, even if the said application dated 1-10-1979, was treated as an application under section 37-A, the District Judge, Hyderabad, could not competently entertain the said application or pass any orders thereon-as it had not been referred by the Election Authority to the District Judge. According to Mr. Halepota for a District Judge or Additional District Judge to be competent to hold the inquiry under subsection (3), it is necessary that the application trust be specifically referred by the Election Authority, which in this case was not so as the application had been filed directly by the respondent No. 3 before the District Judge and not before the Election Authority. Mr. Halepota also referred to rule 65 of the Election Rules, 1979. Sub-rule (1) of rule 65 is to the effect that no election shall be called in question except by an election petition made by a candidate for that election. According to learned counsel. The election of the petitioner could only be called in question by respondent No. 3 or other candidates who had taken part in the election through an election petition and not by any other mode. It was contended that rule 65 was the only rule under which his client could challenge the election of the petitioner. As regards the authority empowered to take action under section 37-A, the contention of Mr. Halepota was that those powers could only be exercised suo motu by the Election Authority or its delegatee. The contention, therefore, was that as section 37-A referred to a disqualification and as the respondent the petitioner election petition, it was competent for the Election Tribunal to decide the charge or allegation relating to a political party against the petitioner. In support of the contention that respondent No. 3 could not take any other proceedings except by way of an election petition under rule 65 for challenging the election of the petitioner, learned counsel, referred to the following 3 cases decided by the Supreme Court of Pakistan' :-
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(a) Ata Muhammad Qureshi v. The Settlement Commissioner PLD 1971 SC61. (b) Niaz Muhammad Khan v. Fazal Ragib PLD 1974 S. C 134. (c) Habibur Rahman v. West Pakistan Public Service Commission PLD 1973 SC 144. Learned counsel for respondent No. 3, referred to the following passage from the aforesaid three judgments of the Supreme Court of Pakistan :- (a) Page 70 of PLD 1971, SC 61 "It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory? It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonethe--less, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language." (b)Page 138 of PLD 1974 SC 134 "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactment's shall be considered directory only or obligatory, with an implied nullification for disobe--dience. It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however, a statute is understood to be directory when it contains matter merely of directions, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision." (c) Page 158 of PLD 1973 SC 144 "It is now well settled that, to use Maxwell's words, Maxwell on the Interpretation of Statutes (1962 Edition), page 369 "where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only . . . . ". Even if there has been a departure from the strict letter of the rule embodied in the relevant paragraph, the respondents had no control over the method of assessm ent adopted by the Public Service Commission for evaluating their merit, and it would indeed work undue hardship and injustice to them if the recommendations of the Commission were to be set at naught owing to the failure of the Commission to perform its duty properly. In such circumstances, the rule has to be regarded as merely directory, and its non- observance cannot by itself invalidate the recommendations of the Commission." 7. Mr. Aftab Ahmed Shaikh, learned counsel for respondents Nos. 4, 6 to 10, referred to section 105 of the 1979 Ordinance, which lays down that all rules made under the Ordinance shall be deemed to form part of the Ordi--nance and then referred to rule 67 of the 1979 Election Rules. According to Mr. Aftab Shaikh, as per rule 67 (1) (b), every Election Petition must contain full particulars of corrupt or illegal practice or other illegal act alleged to have been committed and the words "other illegal
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act", it was contended, includes the allegation or charge covered by subsection (1) of section 37, and accord--ingly it was necessary under the law for respondent No. 3 to include in his election petition facts and references about the alleged association of the petitioner with the political party concerned. It was then contended by Mr. Aftab Shaikh that under the rule 67(2) the only relief that could be claimed by a petitioner was that the election of the returned candidate be declared as void and that the petitioner or some other person was duly elected or that the election was void as a whole. According to Mr. Aftab Shaikh this was the limited relief that could be granted by the Election Tribunal on an election petition filed under section 67 and this provision was separate and indepen--dent of the provision contained in section 37-A of the Ordinance, where the Election Authority or the delegatee under subsection (3) was required to dis--qualify the person concerned for a period of 4 years if the charge under section 37-A was proved to the satisfaction of Election Authority or its delegatee. According to learned counsel, independent proceeding could be taken relating to the charge of association with of help by a political party under section 37-A for which the person could be disqualified for 4 years and also by an election petition containing a similar charge but where only the limited relief in terms of rule 67(2) could be granted. According to Mr. Aftab Shaikh even if the application dated 1-10-1979 of the respondent No. 3 filed before the District Judge is treated as an application under section 37-A the same is competent, and the charge relating to political party in the Election Petition was also competently taken and could be inquired into by the Election Tribunal. Mr. Aftab Shaikh adopted the arguments of Mr. Halepota to the effect that even if the charge relating to a political party could be inquired into only by the Election Authority or its delegatee under subsection (3), the Election Tribunal in this case (Mr. Abdul Hamid Baloch) being a person who could competently take cognizance under subsection (3), if delegated the power, should be deemed to have been delegated this power when the Election Authority referred the Election Petition to him for decision as the Election Petition contained allegations relating to section 37-A also. 8. We are not inclined to agree with Mr. Halepota, learned counsel for respondent No. 3, that the application dated 1-10-1979, filed by respondent No. 3 before the District Judge Hyderabad, may 'a' not be considered as an application under section 37-A but that it is only miscellaneous" applica-- tion. On a query from us, learned counsel for respondent No. 3 was unable to point out any other provision of the 1979 Ordinance, or the Rules made there-- under or for that matter any provision of any other law under which the sat application was mane by respondent No. 3. In view of the notification date 16-9-1979 of the Provincial Election Authority, referred to in para. 5 above all the District Judges of the Province of Sind have been delegated the power by the Provincial Election Authority to conduct inquiries in the cases under subsection (2) of section 37-A and pass orders thereon. We are of the view that it was on account of the provision's of . Section 37-A and the said 9 notification dated 16-9-1979 of the Provincial, Election Authority that respondent No. 3 filed the application dated 1-10-1979 before the District Judge, Hyderabad. In the said application, respondent No. 3 has made allegation about the association of the petitioner with a political party and then in para. 10 of the said application he has asked that the petitioner be disqualified for using political party influence and entire election be cancelled and re-elec--tion ordered. The prayer in the said application is contained in para. 11 thereof which reads as follows :- "It is, therefore, requested drat your honour may be pleased to issue order for disqualification of candidate Mirza Muhammad Muqim Baig." The contents of the application dated 1-10-1979, the prayer for disqualification made therein, the- heading of the application and the tact that it was addressed to the District and Sessions Judge, Hyderabad, leave no roam for any doubt that the application dated I-10=1979 of respondent No. 3 was an application asking the District Judge to take action pursuant to subsection (2) and sub-- section (3) of section 37-A of the 1979 Ordinance.
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As regards the contention of Mr. Halepota that the said application could not be treated as an application under section 37-A as the same was addressed to the District Judge, Hyderabad and not to the Election Authority and there was no reference of the said application by the Election Authority to the District .Nudge, Hyderabad, suffice it is to mention that, under subsection (3) of section 37-A, the Election Authority is empowered to require any Judicial Officer of the rank of a District Judge or Additional District Judge to conduct an inquiry under subsection (2) and pass orders thereon, and, pursuant to this power, all District Judges have been given the powers to conduct inquiries and pass orders by the notification dated I6-9-1979 issued by the Provincial Election Authority. In the face of the language of subsection (3) of section 37-A and the notification dated i6-9-1979 issued by the Provincial Election Authority, in our view, it is not necessary that first the application for an inquiry be made to the Provincial Election Authority who should then refer the…
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