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Petitioner: MUHAMMAD ILYAS VS Respondent: RETURNING OFFICER & others
Court Name: Lahore High Court Judge(s): Shahid Karim Title: MUHAMMAD ILYAS vs RETURNING OFFICER & others Case No.: W.P. No. 28694 of 2015 Date of Judgment:2015-10-08 Reported As: PLD 2016 Lahore 179, PLJ 2016 Lahore 187 Result: Petition dismissed
JUDGMENT
JUDGMENT ' This single order shall decide the instant petition (W.P No. 28694 of 2015) as well as the connected petitions whose Numbers and titles have been given in Annexure 'A' to this petition. It is not relevant to refer to the individual facts of each Constitutional petition. Suffice to say that these petitions lay a challenge to different orders passed by the Appellate Authority while deciding appeals under Rule 14(10) of Punjab Local Government (Conduct of Elections) Rules, 2013 (Rules, 2013) and appointed for the said purpose by the Election Commission of Pakistan. 2. Two common strands run through these petitions. One, the petitioners are candidates and they filed their nomination papers for election as a member of Ward. Second, the nomination papers of the petitioners have been rejected by either the Returning Officer or the Appellate Authority on the ground that the proposers and seconders or either of them are not voters of the Constituency from which the candidate has filed his nomination papers to be elected as a member. ISSUE The issue at the heart of these petitions relates to the true construction of the Rules 12(2) and 14(7) of the Rules, 2013. Petitioners' submissions: 3. The submissions made on behalf of the petitioners may be summarized as follows: That the qualifications and disqualifications have been delineated in Section 27 of Punjab Local Government Act, 2013 (Act 2013) and Returning Officers or the Appellate Authorities, as the case may be, cannot travel beyond the qualifications and disqualifications enumerated in Section 27 of the Act, 2013.
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' That the rejection of the nomination papers on the ground that the, proposer and seconder are not voters from the Constituency of the petitioners/ candidates, is tantamount to adding to the qualifications and disqualifications given in Section 27 of the Act, 2013 and the impugned orders are, therefore, ultra vires. ' That, notwithstanding the above and in the alternative, Rule 14(7) of the Rules, 2013 gives wide power to the Returning Officer to consider the bona fide mistake and in to the petitioner to rectify by substituting a proposer and seconder from the same constituency. ' That some of the learned counsels argued that in a municipal committee, a ward is an independent constituency but so far as a Union Council is concerned, the whole of the Union Council is to be deemed as a constituency. DETERMINATION 4. The provision which is at the centre of the controversy involved in these petitions and which has triggered the present controversy is Rule 12(2) of the Rules, 2013, which reads as follows: "12. Nomination of elections.(1) ----------- (2) Any voter of a constituency may propose or second the name of any duly qualified person to be a candidate for an election of a member or, as the case may be, the Chairman and the Vice- Chairman of that constituency. (3)....................................... (i) the Chairman and the Vice-Chairman of a Union Council as joint candidates in Form-II(A); (ii) general seats of a Ward of a Union Council or a Municipal committee in Form-II(B)." 5. According to the impugned orders, it is an obligation cast by law in terms of sub-rule (2) of Rule 12 of Rules, 2013, reproduced above, that the proposer and seconder should be included in Electoral Rolls as voters from the same constituency from which the candidate has filed his nomination papers to be elected as a member. The resolution of the controversy, therefore, depends upon a proper objective analysis and construction of the term 'Constituency'. The Rules, 2013 define the term as follows: "2(f) "constituency" means a constituency delimited under the Act:" 6. Thus, by virtue of the definition, a constituency would mean a constituency delimited under the Act. The Act has been defined to mean the Act, 2013. The relevant provision with regard to the delimitation and as found in the Act, 2013 is Section 8(3), which, for our purposes, reads as follows: "8. Local Governments and delimitation.-(1)........... (2) ................... (3) The Election Commission shall delimit and notify the Union Councils and wards on the basis of the principles laid down in Sections 9 and 10 and, as nearly as possible, under the Delimitation of Constituencies Act, 1974 (XXXIV of 1974) or any other Act of the Majlis-e-Shoora (Parliament)." 7. It is clear from a reading of Section 8(3) of the Act, 2013. That the power to effect delimitation and notify the Union Councils and wards has come to vest in the Election Commission of Pakistan by an amendment brought about vide the Punjab Local Government Act (Amended Act), 2015 dated 12.1.2015. In that provision, which has been reproduced above viz. Section 8(3) of the Act, 2013, it is clear that the Election Commission of Pakistan shall delimit and notify the Union Councils as well as wards. It indubitably follows that the Election Commission of Pakistan shall conduct the delimitation of wards as well as the Union Councils. This leaves it in no manner of doubt that the wards are also to be delimited for the purpose of elections to the local government. When this provision is read with the definition of constituency given in Rule 2(f) of the Rules, 2013 and reproduced above, the combined effect is that a ward is, in fact, a constituency which is delimited by the Election Commission of Pakistan. 8. A query was put to the learned counsel for the petitioners as to whether the ward from which the petitioners intended to contest the elections, was a constituency for the purposes of their election
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or not? The learned counsel for the petitioners, to their credit, were forthright in replying that the ward from which the petitioners have filed their nomination papers was their constituency for the purposes of elections. This should put to rest the controversy as to whether a ward is or is not a constituency for the purposes of Rules 12(2) of the Rules, 2013. This concession, however, is not the only determining factor in the conclusion which inevitably follows from a reading of the various provisions of the Act, 2013 and Rules, 2013 that a word is a constituency delimited by the Election Commission of Pakistan. A ward is the smallest unit in the entire delimitation process and is an important building block in the constituencies so delimited. 9. The learned counsel for the petitioners in some of the petitions argued that the qualifications and disqualifications have been enumerated in Section 27 of the Act, 2013 and the rejection of the nomination papers on the basis of Rule 12(2) of Rules, 2013, would offend against the mandate of Section 27 of the Act, 2013 and is, therefore, irrational and without lawful authority. This submission of the learned counsel for the petitioners should receive a short shrift. Firstly, the said contention loses sight the distinction which has to be drawn between the qualifications and disqualifications of' a candidate as spelt out in Section 27 of the Act, 2013 and the filing and the scrutiny of the nomination papers which is a distinct and a separate act. One cannot be confused with the other. The two processes are distinct and must be dealt with separately. Secondly, there is no challenge on the ground that the Rules, 2013 have not been validly enacted or that they travel beyond the statute. It is not the case of the petitioners that the said Rules are ultra vires the main enactment of Act, 2013, Therefore, the said contention can only be taken into account if a challenge is thrown to the vires of the Rules which unless set aside are valid and must be relied upon in law. 10. A few of the learned counsels raise the plea that a ward is an independent constituency if considered in the context of a municipal committee but is part of the whole of the Union Councils considered in the context of a Union Council and in that context the entire Union Council must be considered as a constituency. This is a nuanced view put forth by the learned counsels for the petitioners and no basis for this view has been cited nor have the learned counsels referred to any law in support thereof. Neither the Act, 2013 nor the Rules, 2013 make a distinction which has sought to be established by the learned counsels on the touchstone of municipal committee being distinct from a Union Council. Suffice to say that both the municipal committee as well as the Union Council is local Government for the purposes of the Act, 2013 and if the intention of the legislature was such as is sought to be canvassed by the 'learned counsels, a distinction should have been clearly spelt out in the terms of the law. For the purposes of the controversy in hand. Section 10 of the Act, 2013 also sheds light on the issue and may be referred to in this connection: (1) The Election Commission shall delimit a Municipal Committee into wards for election of members, pf the Municipal Committee on generfal seats. (2) For purposes of delimitation oraldunicipal Committee: a ward shall consist of a consus block or adjoining census blocks; the boundaries of a ward shall not cross the limits of the Municipal Committee; and (3) the population of wards within a Municipal Committee shall, as far as possible, be uniform." 11. A reading of Section 10 of the Act, 2013 bolsters the submissions made by the learned Deputy Attorney General that there can be no cavil with the fact that the delimitation of the wards is conducted by the Election Commission of Pakistan and thus the said ward would be a constituency for the purposes of elections. A reference to Rule 12(3)(ii) of the Rules, 2013 would also lend support to the submissions made by the learned Deputy Attorney General. It reads thus: - "Rules 12(3)(ii) (3)................................ (i) the Chairman and the Vice-Chairman of a Union Council as joint candidates in Form-II(A); (ii) general seats of a Ward of a Union Council or Municipal committee in Form-II(B)."
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12. Once again a perusal of the provisions which has been reproduced above would show that every nomination papers shall be made by separate nomination papers by both the proposer and seconder in the case of general seats of a Ward of a Union Council or a municipal committee in Form-II(B). Once again the inescapable inference is that a ward constitutes and comprises a constituency unto itself and thus, must be treated as such. Rule 14(7) 13. The learned counsel for the petitioners as an alternative argument and being confronted with the inescapable conclusion that a ward is a constituency in itself invoked to their aid Rule 14(7) of the Rules, 2013. This rule, for facility of purpose, is reproduced as under:- "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 be remedied forthwith, including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer of seconder so as to bring them in conformity with the corresponding entries in the electoral rolls." 14. This provision may be termed as remedial in nature and intended to cure errors or defects which are not of a substantial nature. It gives the power in the hands of the Returning Officer to remedy the defect forthwith. At first blush, what strikes the reader upon a reading of this rule is the wide amplitude to which this can be put to use if placed in the hands of the Returning Officers unstructured and without laying down parameters. However, we are not here concerned with the exact scope of this rule. We are merely concerned with the application of this rule vis-a-vis the power of the Returning Officer to remedy the defect of the nature which is involved in these petitions i.e. If the proposer and the seconder are not registered voters of the same constituency then can the Returning Officer, by using his discretion, permit the substitution thereof, so as to remedy the defect? The question which is more pertinent for our purposes is whether this is a defect of substantial nature or not. 15. As a prefatory, it must be stated that the words "any voter of a constituency" in Rule 12(2) of the Rules, 2013 must be read in conjunction with the words "for an election of a member or, as the case may be, the Chairman and the Vice-Chairman of that constituency". These words, when read together and in tandem, telescope the true intent of the rule. It lends meaning to it and leaves little to imagination. The ineluctable inference is that the voter who proposes or seconds the name of a duty qualified person to be a candidate for an election of a member must necessarily belong to that very constituency and none other. 16. Let us, for a moment, dwell on the raison d'eter and importance of the proposer and seconder and its true institutional basis. A combined reading of Rules 12, 13 and 14 would bring forth that a person is 'nominated for elections'. This nomination is made by the proposer and seconded by the seconder. A Returning Officer receives the nomination papers duly subscribed by the proposer and seconder. They shall be signed by both the proposer and seconder (and shall also be on solemn affirmation made and signed by the candidate). Thus the Returning Officer shall "invite nominations" and set down a date, time and place at which nomination papers shall be received. That nomination shall be made by separate nomination papers. It is not that a candidate 'files' his nomination papers and merely mentions the names of a proposer and seconder as a sham formality. It is not a painting to be looked at. It is of the essence of the process, the bedrock of the whole process. This then is the true place of the proposer and seconder in the scheme of the Rules, 2013. The nomination, thus, is made by the proposer of a candidate and it is only then that the nomination papers are received by the Returning Officer. Two inferences can be culled out at once: one, the proposer/ seconder have to be from same constituency and two, any defect in respect thereof is not a substantial error.
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17. By Rule 14, scrutiny of the nomination papers is to be conducted by the Returning Officer. The process of scrutiny may be participated by the candidates, the election agents, proposers and seconders or the persons who made objections to the nomination papers. By Rule 3: Returning Officer has been empowered to reject a nomination papers if he is satisfied that the grounds enumerated in the said sub-rule do not exist. Out of the four grounds on which the nomination papers may be rejected, three of the grounds relate to the proposers and seconders in different forms. The nomination papers may be rejected if the proposer or the seconder is not qualified to subscribe to the nomination papers; any provision of Rule 12 or 13 has not been complied with; or the signatures or thumb impressions of the proposer or the seconder is not genuine. This has been brought forth in order to demonstrate the seriousness which the law attaches to the person of proposer and seconder and the meticulousness with which candidates have to be nominated for elections. This is not a mere technicality which can be remedied or removed as a defect. As brought forth above, it goes to the heart of the matter and relates to the nomination of a candidate for elections. 18. Further, upon closer reading of sub-rule (7), which has been invoked by the learned counsel for the petitioners, would show that as an illustration, the kind of errors that may be removed have been delineated in the said sub-rule. They have been mentioned as an error with regard to the name, serial number in the Electoral Rolls or other particulars of the candidates or his proposer or seconder so as to bring that in conformity with the corresponding entries in the Electoral Rolls. Though the principle of ejusdem generis is not attracted strictly as in this case as the general words do not follow nomination of two or more things and thus it is difficult to show-that they apply to the same general kind or class. However, the Latin phrase noscitur a sociis could be made use of in the interpretation of the said sub-rule. In Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner, the phrase has been elaborated upon in the following manner: "The Latin phrase nosciturasociis means--"it is known by its associates"--a classical version, applied to textual explanation, of the observed phenomenon that birds of a feather flock together. The associated- words canon could refer to the basic principle that words are given meaning by their context and some authorities use this canon at that broad level of generality. But we mean something more specific. When several nouns or verbs or adjectives or adverbs--any words--are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar. The canon especially holds that "words grouped in a list should be given related meanings." 19. What is sought to be derived from the said phrase here is that the defect which the Returning Officer has been empowered to remedy has to conform to the defects which have been relied and referred to above in the same sub-rule. The power cannot be expanded to include the defect of the nature which is the subject matter of this petition. For, this defect, in my opinion, constitutes a defect of a substantial nature. The defect is of the kind where the nomination of a candidate would be rendered defective and unworthy of consideration by the Returning Officer. Moreover, if the said defect was not of a substantial nature there was no point for the legislature to lay so much emphasis on the matter of proposer and seconder and would not have made it a ground for rejection of the nomination papers under Rule 14(3) of the Rules, 2018. It will be tantamount to putting a premium on the misdeeds of the erring candidates. This will also involve a subjective assessm ent of the mental state of a candidate in order to gauge his true intent. Was the mistake made in good faith and clerical in nature or was it actuated by some mischievous design and a contraption? This subjective analysis cannot be left to the discretion of the Returning Officer. 20. There is yet another aspect of the issue. To allow the proposer and seconder to be substituted would mean a fresh nomination to be made. This would, in turn, mean an extension in the date of receiving of nomination papers and a change in the rest of the schedule too. Would this not
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impinge upon the rights of other candidates? Can the election schedule be changed for facilitating one candidate, merely? Obviously this would be making a mockery of the entire electoral process and its solemn and serious nature. I cannot imagine that this can be countenanced to be done. I shall pause here to refer to some of the dictionary meanings of the term 'substantial'. These are as follows: "2. Cambridge Advanced Learner's Dictionary - 4th Edition: substantial/adjective (LARGE) B2 large in size, value, or importance: relating to the main or most important things being considered: The committee were in substantial agreement (= agreed about most of the things discussed) 3. Merriam Webster's Unabridged Dictionary: 1 a: consisting of, relating to, sharing the nature of, or constituting substance: existing as or in substance. MATERIAL *substantial life the substantial realities* *most ponderous and substantial things--Shakespeare* b: not seeming or imaginary: not illusive: REAL, TRUE *the substantial world* *a mere dream neither substantial nor practical being of moment: IMPORTANT, ESSENTIAL 4. The Chambers Dictionary 12th Edition A to Z Chambers Harrap Publishers Ltd 2011 At Page 1552 Substantial: of or having substance; being a substance; essential; actually existing; real; corporeal, material; solid; stable; solidly based; durable; enduring; firm, stout, strong; considerable in amount; bulky; well-to- do, wealthy, influential; of firm, solid or sound value." 21. The question which begs determination in the instant petition came up for determination before the Supreme Court of Pakistan in the context of the Representation of the People Act, 1976 (Act, 1976). The provisions of the Act, 1976 which are in materia with the provisions under consideration were dilated upon and a finding was rendered by the Supreme Court of Pakistan in the precedent reported as Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277) (relied upon by Ch. Llfiqar A.I, Advocate). For facility, the corresponding provisions, which came for consideration before the Supreme Court of Pakistan are reproduced as under: "12. Nomination for election-4(1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency.] [(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany (a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member; (b) 8[****] Omitted. (c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off; (d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers; (e) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any, alongwith attested copies thereof; and (f) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day of June;
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14. Scrutiny.--(1) The candidates, their election agents, [the proposers and seconders and one other person authorized in this behalf by each candidate] 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 Section 12: [Provided that an elector who has filed an objection to the nomination of a candidate shall only attend the scrutiny of the nomination paper of that candidate.] (2)... (3) The Returning Officer may, either of his own motion or upon any objection, [either by an electhr on [by any person referred to in sub-section (1),] conduct such summary enquiry as he may think fit and may reject 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 Section 12 or Section 13 has not been complied with [or submits any false or incorrect declaration or statement in any material particular];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; [(a) the Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record;] (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, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll; and (iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll." 22. Before we proceed to reproduce the ratio decidendi of the cited case, a word regarding the true nature of statutes in pari materia. In Reading Law (cited above), the term has been elaborated upon as…
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