Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Chaudhary Wajid Ayub and another VS Respondent: Malik Rizwan Ahmed and others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Chaudhary Wajid Ayub and another vs Malik Rizwan Ahmed and others Case No.: Election Appeal No.01/2016 Date of Judgment:2019-03-22 Reported As: 2019 IHC 182 Result: appeal dismissed
Judgment MIANGUL HASSAN AURANGZEB, J:- Through the instant appeal, the appellants, (Chaudhary Wajid Ayub and Khurram Zeb Khan), impugn order dated 17.10.2016, passed by the learned Election Tribunal, Islamabad, dismissing election petition No.53/2016, filed by the appellants to challenge the election of respondent No.1 (Malik Rizwan Ahmed) and respondent No.2 (Najam Hayat) as Chairman and Vice Chairman of Union Council No.47, Tehsil and District Islamabad, respectively . 2. The record shows that the appellants and the respondents contested elections for the seat of Chairman and Vice Chairman of Union Council No.47. The elections were held on 30.11.2015. Respondents No.1 and 2 were declared as returned candidates and in this regard, notification dated 05.12.2015 was issued by the Election Commission of Pakistan ("E.C.P ."). 3. On 02.01.2016, the appellants filed an election petition under Section 37 of the Islamabad Capital Territory Local Government Act, 2015 ("I.C.T.-L.G. Act") before the learned Election Tribunal, Islamabad. In the said election petition, it was pleaded inter alia that respondent No.1, in his nomination papers, concealed his and his wife's assets; that respondent No.1's wife owned 63 kanals, 16 marlas of land in Mouza Tarnol, Tehsil and District Islamabad; that a portion of the said land was used for agriculture, whereas buildings were constructed on the rest of the land; that respondent No.1 had also concealed his and his wife's share in a plot measuring 2 marlas and 96 square feet purchased through registered sale deed dated 01.01.1990, in three shops purchased through registered sale deed dated 08.04.1990, and in other property inherited by respondent No.1 and his wife; that the disclosure made by respondent No.1 in his nomination papers regarding his share in the Jammu & Kashmir Cooperative Housing Society was not accurate; that the said concealment disqualified respondent No.1 from being elected as Chairman of Union Council No.47; and that respondent No.1 had not paid income tax with respect to the rental income from his properties disclosed in the nomination papers.
---
## Page 2
4. The said election petition was contested by respondents No.1 and 2 (i.e., the returned candidates) by filing a written reply . In the said reply , the said respondents took preliminary objections to the maintainability of the election petition. It was pleaded inter alia that since the appellants, before the filing of the election petition, had not, either personally or through registered post with acknowledgment due, served a copy of the election petition on the respondents, the mandatory requirements in Rule 60 of the Islamabad Capital Territory (Conduct of Election) Rules, 2015 ("the 2015 Rules") had been violated rendering the election petition liable to be dismissed. Another objection taken by the said respondents was to the effect that the election petition, its schedule and annextures had not been verified in accordance with the law. Furthermore, it was pleaded that respondent No.1 had provided complete details of his assets as required by law and nothing had been concealed; that the details of respondent No.1's properties had been provided in Form-XVII; and that respondent No.1 and his family had been given plots in the Jammu & Kashmir Cooperative Housing Society as compensation for the acquisition of their ancestral land. 5. From the divergent pleadings of the contesting parties, the learned Election Tribunal framed 13 issues, which are reproduced herein below:- 1. Whether the petitioners have got cause of action to file the instant election petition? OPP 2. Whether this election petition is not maintainable, in view of the objections raised by the respondents? OPR 3. Whether the petitioners are estopped by their conduct to file the instant petition? OPR 4. Whether the petition is false, frivolous and allegations are vague? OPR 5. Whether any corrupt or illegal practices were committed and bogus votes were casted in favour of respondents and fake thumb impressions were affixed on ballots during the election of chairman & vice chairman on 30.11.2015? OPP 6. Whether the returned candidates and returning officers were having nexus with each other and rigging took place to favour the respondents in connivance with the election staff? OPP 7. Whether the returned candidates concealed their assets? If so its effects? OPP 8. Whether respondent No.1 is defaulter of WAPDA and income tax, if so, its effects? OPP 9. Whether 680 votes were illegally rejected? OPP 10. Whether some ballot papers were considered spoiled and thumb marked, if so, the rights of the petitioners become prejudiced? OPP 11. Whether there are differences betwee n number of votes polled and number of entries in electoral roll, if so, its effects? OPP 12. Whether the petitioners are entitled to the relief prayed for? OPP 13. Relief? 6. Before the learned Election Tribunal, the appellants did not press issues No.5, 6, 9, 10 and 11. The witnesses produced and the documents tendered in evidence on behalf of the contesting parties are detailed in paragraphs 5 to 18 of the impugned judgment dated 17.10.2016. The learned Election Tribunal decided issue No.2 in favour of respondents No.1 and 2 and held that the election petition was not maintainable in the eyes of law. Nevertheless, after holding so, the learned Election Tribunal went ahead and decided the remaining issues on merits. Vide impugned judgment dated 17.10.2016, the election petition was dismissed. In this appeal, the said judgment has been assailed. 7. The arguments of the learned counsel for the contesting parties were spread over several dates of hearings and were supported by voluminous documents and case law . CONTENTIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS:- 8. Learned counsel for the appellants, after narrating the facts leading to the filing of the instant appeal, submitted that the impugned judgment suffers from legal infirmities and factual errors; that the non-service of the election petition's copy on the respondents personally or through registered A.D. was a mere technicality; that a copy of the election petition was served on the respondents through courier; that the requirement of Rule 60 of the 2015 Rules was directory and not mandatory, because no penal consequence is provided for its non-compliance; that the learned Election Tribunal, vide order dated 02.01.2016, directed summons to be issued to the respondents through courier; that notice served on the respondents through courier was valid since the same was in compliance with the
---
## Page 3
order of the learned Election Tribunal; that the requirements of Rule 60 of the 2015 Rules were sufficiently and substantially complied with when the respondents were served with the notice regarding the filing of the election petition; that the respondents tendered appearance before the learned Election Tribunal after they were served with the notice through courier; and that the verification of the election petition was strictly in accordance with the law. 9. Furthermore, learned counsel for the appellants submitted that the placement of the Oath Commissioner's signature has been made a ground by the learned Election Tribunal to oust the appellants; that all material documents had been signed by the Oath Commissioner; that all documents brought on record by the appellants were verified on oath; that the object of the Legislature was achieved when the documents on record were attested on oath; that the learned Election Tribunal unlawfully discarded several documents that had been marked'; that the documents on the record could be looked into; that the learned Election Tribunal erred by not appreciating that the nature of certain documents was such that they did not need to be formally exhibited; that documents which came within the meaning of public documents were not required to be formally exhibited; that the learned Election Tribunal did not adjudicate upon the admissibility of the documents; and that the learned Election Tribunal concentrated on the preliminary objections raised by respondents No.1 and 2 and failed to adjudicate upon the issue regarding declaration of assets. 10. Learned counsel for the appellants further submitted that the learned Election Tribunal did not adequately dilate on the issue regarding the declaration of assets; that the election of respondents No.1 and 2 was liable to be declared void on account of non-disclosur e of assets by respondent No.1 and his wife; that asset declaration is the foundation of all the nomination papers; that a candidate is required not just to declare his own assets but also those of his spouse; that there should be zero tolerance for non-declaration of assets; that if a candidate declares most of his assets but omits to declare certain other assets, he is liable to be disqualified; that the concept of substantial compliance does not apply regarding declaration of assets in the nomination papers; that strict compliance is to be shown with the requirement to declare assets in the nominati on papers; that in the impugned judgment, there is a clear admission that respondent No.1 did not declare his inherited/ancestral property; and that the requirement to declare assets has been made applicable to the Local Government elections. 11. Learned counsel for the appellants further submitted that respondent No.1 did not declare six of his bank accounts; that respondent No.1 in his first nomination papers mentioned his inherited share to be 1/11th, whereas in the second nomination papers, he changed the same into 1/10th; that respondent No.1 has not mentioned any rental income in his nomination papers; that respondent No.1 did not declare his ownership of Mehran Plaza and land situated in village Tarnol, Islamabad, in his nomination papers; that respondent No.1 has a share in three commercial buildings called Mehran, Rizwan and Usman Plazas; and that respondent No.1 did not declare all his assets fearing that he may be held accountable to the tax authorities; that respondent No.1 was a tax evader; that respondent No.1 was not exempt from disclosing of his inherited property in his nomination papers; that respondent No.1 was also under an obligation to have disclosed his wife's assets; that Sections 12 and 76-A of Representation of People Act, 1976 ("R.O.P.A.") have to be strictly construed; that due to non-disclosure of respondent No.1 and his wife's assets, respondent No.1's election was liable to be declared as void; that the impugned judgment is contrary to the law laid down by the Hon'ble Supreme Court; that in the case of Muhammad Ibrahim Vs. Aftan Shaban Mirani (2016 SCMR 722), it has been held that under Section 55 of R.O.P.A., every election petition and schedule annexed to that petition shall be signed by the election petitioner and verified in the manner laid down in Order VI, Rule 15 of the Code of Civil Procedure, 1908("C.P.C."); that the learned Election Tribunal erred by not taking into account documents which were part of the Tribunal's record; and that respondent No.1 was liable to be disqualified under Article 62(2)(f) of the Constitution since he was not sagacious, righteous, non-profligate, honest and ameen. Learned counsel for the appellants prayed for the appeal to be allowed, and for the impugned judgment dated 17.10.2016 to be set-aside. CONTENTIONS OF THE LEARNED COUNSEL FOR RESPONDENTS NO.1 AND 2:- 12. On the other hand, learned counsel for respondents No.1 and 2 submitted that under Section 37(2) of the I.C.T.- L.G. Act, an election petition is to be filed in a "prescribed manner"; that Rules 60 and 61 of the 2015 Rules prescribe the manner in which an election petition is to be filed; that Rule 60 of the 2015 Rules obligates the election petitioner to "serve personally or by registered post with acknowledgment due on each respondent a copy of his petition"; that
---
## Page 4
the employment of the word "shall" in Rule 60 makes the said requirement mandatory; that the appellants did not serve a copy of the election petition on respondents No.1 and 2 (herein after referred to as "the respondents") in accordance with the requirements of Rule 60; that the requirement to serve the respondents with a copy of the election petition either personally or through registered post is obligatory under Rule 60(1); that in his cross-examination, PW-11 (i.e., appellant No.1) admitted that a copy of the election petition had not been served personally or through registered post on the respondents; that even in appellant No.1's affidavit-in-evidence (Ex.PW-11/A), there is no mention of the service of the election petition on the respondents through registered post; that it was also not proved that service of the election petition on the respondents was affected through courier; that although the courier receipt was appended with the election petition, it was not tendered in evidence; that it was not even pleaded in the election petition that a copy of the election petition was sent to the respondents through courier; that even in the election petition, it has not been pleaded that the respondents were served with a copy of the election petition prior to its filing; that under Section 27 of the General Clauses Act, 1897, the presumption of service only applies when service is made through registered post; that the requirement in Rule 60(1) of the 2015 Rules is akin to the framing of a charge; that under Section 265(c) Cr.P.C., the statement of allegations have to be provided to the accused seven days before the framing of the charge; and that Rule 60(1) would be rendered redundant if strict compliance therewith is not ensured. 13. Furthermore, learned counsel for the respondents submitted that the respondents had disclosed all their assets in their nomination papers; that the 2015 Rules did not obligate a candidate to declare his wife's assets in the nomination papers; that the provisions of R.O.P.A. cannot override the provisions of the I.C.T.-L.G. Act or the rules made thereunder; that the provisions of R.O.P.A. have been made applicable only for the purpose of elections; that as per the law laid down in the case of Election Commission of Pakistan Vs. JavaidHashmi (PLD 1989 S.C. 396), election commences from the date of the issuance of the election schedule till the publication of the notification of the returned candidate; that the conduct of elections ends upon the notification of the returned candidate; that there are three different phases of elections viz (i) pre-election phase, (ii) the election itself, and (iii) post-election phase; that Section 17 of the I.C.T.-L.G. Act is with respect to the conduct of elections; that Section 28 of the I.C.T.-L.G. Act provides that the election to a Local Government shall be conducted in a prescribed manner; that by virtue of Section 17(3) of the I.C.T.-L.G. Act, the mechanism provided in R.O.P.A. from the stage of the receipt of the nomination papers till the notification of the returned candidate has been adopted; that the provisions of R.O.P.A. pertaining to the post- election scenario cannot be made applicable by the Election Tribunal constituted under the I.C.T. L.G. Act; that where there are inconsistent provisions in two separate laws, the special law will prevail over the general law; that the I.C.T.-LG Act is a special law with respect to the local elections; that R.O.P.A applies to the elections for Parliament and the Provincial Assemblies; that Section 76-A of R.O.P.A applies only to an Election Tribunal constituted under Section 57 of R.O.P.A. and not to an Election Tribunal constituted under Section 38 of the I.C.T.- L.G. Act; that the Election Tribunal that passed the impugned judgment was constituted under Section 38 of the I.C.T.-L.G. Act, and not under Section 67 of R.O.P.A; and that a penal provision in R.O.P.A. cannot be applied to anything done under the I.C.T.-L.G. Act. Learned counsel for respondents No.1 and 2 submitted that the impugned judgment passed by the learned Election Tribunal is strictly in accordance with the law. He prayed for the appeal to be dismissed. 14. I have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 6 above, and need not be recapitulated. 15. I propose, first, to decide whether the learned Election Tribunal was correct in its findings that the election petition was not maintainable on account of non-compliance by the appellants with Rule 60 of the 2015 Rules and non-verification of the election petition and its annexures in accordance with Section 55(3) of R.O.P .A. 16. The I.C.T.-L.G. Act was enacted on 03.08.2015 (i.e., the date on which it received the Presidential assent). On 14.10.2015, the I.C.T.-L.G. Act was amended by the Islamabad Capital Territory Local Government (Amendment) Ordinance, 2015 ("I.C.T .-L.G. Amendment Ordinance."). Through the said Ordinance, Sub-Section (3) was added in Section 17 of the I.C.T.-L.G. Act. The Islamabad Capital Territory Local Government (Amendment) Act, 2016 ("I.C.T .-L.G. Amendment Act") was enacted on 27.07.2016. The I.C.T.-L.G. Amendment Act was said to be in the
---
## Page 5
same terms as the I.C.T.-L.G. Amendment Ordinance. Sub-Section (3) of Section 7 of the I.C.T.-L.G. Act, as amended, reads as follows:- "(3) Without prejudice to the provisions of this Act and for the purpose of election to the Local Governments under this Act, the provisions of the Representation of People Act, 1976 (LXXXV of 1976) shall mutatis mutandis apply ." 17. Section 1(2) of I.C.T.-L.G. Amendment Act provides that it shall come into force at once and shall be deemed to have taken ef fect on 14.10.2015. The 2015 Rules were notified on 17.09.2015. 18. As per the election schedule, the last date for filing the nomination papers was 28.06.2015. It is an admitted position that respondents No.1 and 2 filed their nomination papers on 26.06.2015. As mentioned above, the I.C.T.- L.G. Act was enacted on 03.08.2015. After the enactment of the I.C.T.-L.G. Act, the candidates again filed their nomination papers on 28.10.2015. By this time, the 2015 Rules had already been notified. The elections in question were held on 30.1 1.2015. 19. Now, Section 37(1) of the I.C.T.-L.G. Act provides that an election to an office of a Local Government shall not be called in question except by an electio n petition. Section 37(2) of the said Act provides that a candidate may, "in the prescribed manner" , file an election petition before the Election Tribunal challenging an election under this Act. Section 2(kk) of the said Act provides that the word "prescribed" means prescribed by the Rules as defined in Section 2(tt) of the said Act. Section 2(tt) of the said Act provides that "rules" means rules under the Capital Development Authority Ordinance, 1960 or "may be made under this Act". The 2015 Rules were made by the Federal Government in exercise of the powers conferred by Section 117 of the I.C.T.-L.G. Act. Chapter-X, titled "Election Petitions" in the 2015 Rules inter alia prescribes the manner in which an election petition is to be filed. Rule 60(1) in Chapter-X of the 2015 Rules reads as follows:- "The petitioner shall join all contesting candidates as respondents in his election petition and shall serve personally or by registered post with acknowledgment due on each respondent a copy of his petition" (Emphasis added) 20. Now, it is an admitted position that the appellants did not serve a copy of the election petition on the respondents in the manner as required by Rule 60(1) ibid. The appellants assert that they sent copies of the election petition to the respondents through courier. Section 54(b) of R.O.P.A., although not strictly in pari materia, but is similar in nature to Rule 60(1) of the 2015 Rules. Section 54(b) of R.O.P.A. provides that the petitioner shall join as the respondents to his petition any other candidate against whom any allegation of any corrupt or illegal practice is made and "shall serve personally or by registered post on each such respondent" a copy of the petition. Section 54(b) of the R.O.P.A. was interpreted by the Hon'ble Supreme Court in the case of Inayat Ullah Vs. Syed Khursheed Shah (2014 SCMR 1477), in the following terms:- "2....Considering the contents of section 54(b) of the Representation of the Peoples Act, 1976 (The Act), the undeniable position which emerges from the record is that the Election Petition was not served on the nineteen (19) respondents by the appellant Inayatullah personally . It is also clear from the record and indeed it has not been urged before us that the copy of the petition was served on the respondents throug h registered post. The question, therefore, which remains is whether the courier service employed by the appellant could be construed as service effected on the respondents by the appellant personally . 3. Considering the provisions of the various statutes including the Civil Procedure Code (C.P.C.) the distinction between personal, service/appearance etc. and appearance/service etc. through an agent is well recognized. The courier service can at best be treated as an agent of the appellant. Service through an agent, keeping in mind the similar provisions of the Civil Procedure Code (C.P.C.) and other statutes will not constitute service effected personally. As far as service through registered post is concerned, that has not even been claimed by the appellant. In any event, the Postal Service of Pakistan has been created under the Post Office Act, 1898. There are a number of courier services operating in Pakistan. Our research staff has accessed reports which show that legislative efforts are a foot to regulate the services of couriers. As a result, the Pakistan Private Courier Regulatory Bill, 2012, was prepared. However, the said Bill has not become a law. In any event, service through registered post raises statutory presumptions in the ordinary course. No such presumption attaches to service through courier. Learned counsel for the appellant made a feeble attempt to argue that service through courier could be considered valid on the ground of practice and usage. This plea is not legally tenable in view of the express wording of the Act."
---
## Page 6
21. The requirement to serve a copy of the election petition on the respondents personally or by registered post is mandatory under Section 54(b) of R.O.P.A. This is because the consequence of non-compliance with the said requirement is provided in Section 56 of R.O.P.A., which provides inter alia that if the Commissioner finds that any provision of Section 54 has not been complied with, the petition shall be dismissed forthwith. No such consequence or penalty is provided in the I.C.T.-L.G. Act or the Rules made thereunder for non - compliance with the requirement of Rule 60 of the 2015 Rules. Rule 67 of the 2015 Rules provides that an Election Tribunal may dismiss an election petition if the provisions of Rules 64 and 65 of the 2015 Rules are not complied with or where the allegations contained in the election petition are vague or do not disclose the commission of any corrupt practice, material irregularity or any other illegal act. Rule 67 of the 2015 Rules does not empower the learned Election Tribunal to dismiss an election petition for non-compliance with the requirements of Rule 60 of the 2015 Rules. This being so, I am of the view that the penal provision in R.O.P.A. (i.e., Section 56 of R.O.P.A.) will not be attracted if the election petitioner does not serve a copy of the election petition personally on the respondents or does not send the same to the respondents through registered post. 22. Even though Section 1(2) I.C.T.-L.G. Amendment Act provides that the amendments made in the I.C.T.-L.G. Act will be deemed to have taken effect on 14.10.2015, it is well settled that penal provisions in a statute cannot be inserted with a retrospective effect. Furth ermore, the provisions of R.O.P .A. have been made applicable mutatis mutandis "for the purpose of election" to the Local Governments under the I.C.T.-L.G. Act. The term "for the purpose of election" , in my view, is relatable to the conduct of an election, which is catered for in Chapter-IV of R.O.P .A. 23. Additionally , the provisions of R.O.P .A. have been made mutatis mutandis applicable for the purpose of election to the Local Governments under the I.C.T.-L.G. Act, "without prejudice to the provisions of the [I.C.T .-L.G. Act]".…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.