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Petitioner: ABDULLAH HUSAIN HAROON VS Respondent: THE PROVINCIAL ELECTION AUTHORITY, SIND JUDGMENT
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, Z.C. Valiani Title:ABDULLAH HUSAIN HAROON vs THE PROVINCIAL ELECTION AUTHORITY, SIND
JUDGMENT
Reported As: PLD 1984 Karachi 472 Result: Petition dismissed Judgment JUDGMENT ' ABDUL HAYEE. KURESHI, C. J.-On the conclusion of the hearing of this petition, we had passed a short order, dismissing the petition, but with no order as to costs, the reasons for such short order presently follow. ' The brief facts of the case are that petitioner Abdullah Hussain Haroon is a sitting Councillor of Karachi Municipal Corporation (which, for the sake of brevity, is hereinafter referred to as the Corporation). He was elected for a repeat term on 29-9-1983 in a general constituency. Abdus Sattar Afghani, the respondent No. 4, had also been elected as a Member of the Corporation from a general constituency in 1979, and thereafter he was elected as a Mayor of the Corporation. He, however, did not contest for a seat to the Corporation from any general constituency, but on 27-10- 1983, he filed a nomination paper against the reserved quota of seats for workers. Such nomination paper was filed before the Commissioner of Karachi, who was the Returning Officer (respondent No. 2). Elections to the reserved seats for workers was held on 30-10-1983, and respondent No. 4 was elected. ' Subsequently, the- petitioner and respondent No. 4 contested in the election for the Mayor of the Corporation, and in such election, the petitioner was defeated and respondent No. 4 was elected. It was stated before us at the time of hearing that the respondent No. 4 obtained a sizable majority of over 29' votes in the Corporation House, consisting of 220 Members. ' The original petition was submitted in this Court on 30-10-1983, which date had been fixed for the election of the Members of reserved seats, including workers. The prayers in the petition were for a declaration that the respondent No 4 could not contest the election on the reserved seat of
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workers, and both the Returning Officer and the Provincial Election Assembly had erred in failing to exercise jurisdiction legally and lawfully inasmuch as that they had not rejected the nomination paper of respondent No. 4, and also a general prayer that all proceedings in the elections concerning, or, arising out of the nomination of respondent No. 4 be declared null and void. On 30- 10-1983, the case was placed before a Division Bench of this Court, which had called for comments. On 6-11..1981, the petition was admitted to regular hearing by a Division Bench of this Court. However, on 10-11-1983, an amended petition was filed, wherein the recital of facts was slightly different from the original recital in the initial petition. It appears that, since comments had been received in this Court from the Provincial Election Authority, and the Returning Officer, the petitioner found it necessary to amend the petition. However, in the present petition, the prayer is couched in similar language. ' The. Contention of the petitioner in the petition are that respondent No. 4 is not a worker within the meaning of clause (82) of section 3 of the Sind Local Government Ordinance, 1979 (which statute, for the-sake of brevity, shall hereinafter be referred to as the Ordinance), ' It is also contended that, besides such lack of .Qualification, the respondent No. 4 was suffering even from a disqualification, as he was enjoying such privileges and benefits as Mayor, which disqualified him from contesting the elections, as, by holding such post, he acquired personal financial interest. It is contended that the Returning Officer had acted wrongly by accepting, the nominal paper of respondent No. 4, and the Provincial Election Authority also acted with error in refusing to entertain the objections of the petitioner. It is also contended that the programme set out by the Provincial Election Authority for presentation of nomination papers, scrutiny, appeals against orders of Returning Officer in regard to nomination and voting for the reserved seats were al o illegal. It is, also stated that failure of justice bad been occasioned for the reason that no time and place for scrutiny of nomination papers had been fixed. It is even alleged that scrutiny did not take place, and that the objections to the nomination of respondent No. 4 were not heard by the Returning Officer, and that the Provincial Election Authority also had the power to review the orders of the Returning Officer in regard to acceptance of nomination paper; but, having failed to exercise that jurisdiction, they were in legal error. ' During the hearing of the petition, a fact was stated before as by Mr. Naseem Farooqui, the learned Advocate appearing for the petitioner, and that was that the petitioner in person had visited the office of the Returning Officer on 27-10-1983, viz. The date for filing nomination papers. The report of the Returning Officer indicated that the petitioner did appear before the Returning Officer, but only after the nomination paper of respondent No. 4 had been accepted. We wanted to know the reason for the petitioner's visit to the office of the Returning Officer, and, for such reason, we asked the learned Advocate for the petitioner to obtain a reply from the petitioner; who was present in Court, whereupon the petitioner made a statement before us that he had two purposes, underlying his visit to the Commissioner's office on 27-10-1983 ; one was to support some persons, who wete Contesting to the reserved seats, and the other was to object to nomination paper of respondent No 4. We recorded such statement in open Court, and signed the same. The same has been placed on record. ' Comments of respondent No. I were submitted under the signature of Mr. M. 1. Farooqui, the Secretary of the Provincial Election Authority. It was admitted that the petitioner had filed an appeal before the said respondent against the acceptance of nomination, paper, but, reference has been made to sub-rule (5) of rule 55 of the Sind Local Councils (Election) Rules, 1979, and a statement has been made that an appeal lies only against the rejection of a nomination paper. It is sought to he stated by reference that, since the nomination paper of respondent No, 4 had been accepted, no appeal lay. In such context, it reads as follows
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"(5) Any candidate whose nomination paper has been rejected may file with the Returning Officer an appeal addressed to toe Election Authority before such time as may be specified by it Such an appeal shall be disposed of before such time as may be specified by the Election Authority, and any order passed on such' appeal shall be final." ' It is also stated that the provision, which relates to the election for general seats, had to be adopted even for election to the reserved seats. This respondent has taken a stand that the appeal, which had been filed by the petitioner, challenging the acceptance of the nomination paper of respondent No. 4, was not legally competent, and, therefore, the respondent acted rightly in dismissing the same summarily. The respondent No I also stated that the programme set out by the Provincial Election Authority for election to reserved seats was properly drawn up and was in accordance with the law and rules. It may, at till stage,, be profitable to reproduce the said programme, for the same would show the time schedule for the submission of nomination papers and scrutiny thereof. Significantly, no separate date, or, time has been specified for scrutiny of the nomination papers, which would indicate that the scrutiny was to be a simultaneous process. However, a note has been suffixed to the programme, which would indicate that the Returning Officer had to give notice. For inviting the nominations and giving separate date, time and place for the polls of each council and also the programme of scrutiny of nominations and withdrawal of candidature. Such programme made as follows "Programme Thursday Presentation of nomination papers before 27-10-1983. Returning Officers and scrutiny of nomination papers by Returning Officers 2. Appeals against nomination papers address- Friday ed to Election Authority shall be pre- 28-10- 1983. seated to the Returning Officers on 3. Hearing and decision on appeals by Appel- Saturday late Authority at Karachi and with- 29-10-1983. drawal of nomination papers and publication of final list of candidates by the Returning Officers Voting by members of the Electoral Sunday College and announcement of result 30.10-1983 and Monday 31-10-1983. ' Note.-The Returning Officers shall by notice invite nominations. Giving separate date, time and place for the pulls of each council and also the programme of scrutiny of nominations and withdrawal of candidature for such council." ' The Commissioner of Karachi (respondent No 2), who was the Returning 'Officer, also submitted his comments on 2-11-1983. In regard to most of the averments contained in the petition, nothing specific was stated regard to the averment of the actual fact of scrutiny, and the objection raised 'by the petitioner in regard to the nomination paper of respondent No. 4 the Returning Officer has stated that, on the date fixed for filing of nomination papers, the petitioner did appear before the Returning Officer to enquire, whether objections against nomination of the candidates would be heard, and, if so, at what time, to which a reply was made that there was.No provision for hearing of objections in the rules, although the petitioner was also informed that the nomination paper of respondent No 4 had been found to be valid after due scrutiny.. Mr. Syed Sardar Ahmad, the Commissioner of Karachi, who was the Returning Officer, has also filed a counter-affidavit, and,':in the said counter-affidavit, which is fairly detailed fuller facts have been given. It is stated that, at the time of scrutiny of the nomination paper of respondent No. 4, the petitioner was not present at all ; nor did any person raise any objection in regard to the, nomination. It is stated that the scrutiny was carried out in the presence of such persons, who were present, and the nomination parer was accepted.' The affidavit further reads that, after considerable time, the petitioner appeared before the Returning Officer, when the scru tiny had been completed, and nomination paper had been
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accepted, and enquired, whether objection could be raised to the nomination of respondent No. 4, but he was, told that there was no provision in law for entertaining objections after scrutiny and acceptance of nomination paper. The allegation, that the nomination paper was accepted in a mechanical manner without due application of mind, is not correct, as due scrutiny had already been carried out. It is also stated that, on the basis of material, that had been placed before this respondent by respondent No. 4, in regard to the latter's eligibility to contest on a seat reserved for workers, this respondent was satisfied, and accordingly accepted the nomination paper. It has been denied in the said affidavit that any separate, or, distinct hours bad been specified, or, announced for the submission of nomination paper, or, for scrutiny of nomination papers. It is averred that the time of receipt and scrutiny was between 9-00 a. m. And 4-00 p. m. And, on receipt of each nomination paper, scrutiny followed in the presence of the candidate as well as such other persons, who were present, and raised any objection. ' The respondent No. 3, viz. The Corporation, has also filed its comments, wherein it has been stated that the Corporation would not be concerned with the elections to reserved seats, which was the function of Returning Officer, or, the Provincial Election Authority. In regard to a disqualification attaching to respondent No. 4, on account of his obtaining some honorarium and allowances from the Corporation during his tenure of office as Mayor for the previous term, the Corporation has submitted in the comments that respondent No. 4 had been enjoying benefits and privileges under the Sind Councils Mayor and Chariman (Honoraria and Privileges) Rules, 1988. It is stated that respondent No. 4, by virtue of his office as Mayor in the previous term, had exercised a power of supervision, administration and control over the Corporation under section 48 of the Ordinance. ' Respondent No. 4 has also filed several affidavits to contest the averments in the main petition, or, in the interlocutory applications. It is stated by him that the Returning Officer at the commencement of his work in relation to acceptance of nomination papers, publicly announced at 9-00 a. m. That, immediately on receipt of nomination papers, scrutiny would be carried out, and the order in regard to acceptance, or, rejection will be passed. It is stated that he had fixed time for such purpose from 9-00 a. m. To 2-00 p. And he was sitting in open ,Katchery, where he scrutinised the nomination papers publicly and passed orders after summary enquiry. It is stated that, while the respondent No. 4 remained present throughout the time with his group workers, the petitioner was not present when respondent No. 4 submitted his nomination paper at 10-30 a. m. And the scrutiny was carried out until 10-50 a. m. It is stated that, later on, the petitioner was found chatting with some of his workers in the compound of the office of respondent No. 2, but he entered the office room only at 2-00 p. m. It is stated by respondent No. 4 that no person objected to his nomination paper, and, since respondent No. 2 was satisfied with regard to the validity of the nomination paper, and the qualifications of respondent No. 4, the nomination was accepted, and thereafter no remedy was available either before respondent No. 2, or, respondent No. I to question the validity of nomination. It is stated, and indeed not controverted, tbat the petitioner did not file any objections in writing in regard to candidature of respondent No. 4. A statement has also been made in the counter-affidavit that the petitioner was not present at the time of submission of the nomination paper. Respondent No. 4 has also filed a photostat copy of his nomination paper, and the certificate appended thereto, together with a receipt given by respondent No. In token of having receiving the nomination paper, and these documents show that respondent No. 4 had delivered time nomination paper at 10-50 a. m. The column, wherein the date, time and place for scrutiny had to be mentioned, had been scored out. We may also state that respondent No. 4 has filed seven similar receipts given to seven other candidates for these reserved seats, and even in such receipts, such column, which was meant for insertion of the date, time and place for scrutiny had been scored out. On such premises, the respondent No. 4 seeks to set up a case that submission of nomination papers and scrutiny were simultaneous. Respondent
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No. 4 has also stated in his counter-affidavit that he was qualified for being elected from the reserved seat of workers, as he is an employee in a commercial establishment of Messrs Khan & Co. As a Shop Assistant, doing manual and clerical labour since 1950. He has gone on to state that, after being elected as Mayor in the previous terms, he had continued his service and had not joined any other vocation, or, profession. It is also stated by him that the post of Mayor is an elected post carrying honorarium, and by holding such post, the vocation of respondent as "worker" has not been affected. Respondent No. 4 has also placed on record a photostat copy of a certificate issued by, the Managing Partner of Messrs Khan & Co. On 16-10-1983 which states that the respondent No. 4 was working as Shop Assistant on, a salary of Its. 600 per month. It is also stated in the affidavit that this petition has become infructuous, as elections have already been held. In another counter-affidavit filed by respondent No. 4 to the main petition, it has been stated that an adequate alternate remedy was available, and that the matter involved enquiry into facts, which the High Court would rarely undertake in exercise of Constitutional Jurisdiction. It is also pointed out that this Court has generally been very slow in interfering with the process of elections, which are regulated by a special law, providing for all remedies, and that the case does not call for interference by this High Court. ' Before we proceed to consider the points involved in this petition, we may make a brief reference to the affidavit-in-rejoinder filed by the petitioner on 26-11-1983. In this affidavit, the petitioner has stated that he had raised an objection to the nomination of respondent No. 4 at about 2.00 p. m. On 27-10-1983, and it is also stated in the same breath that the nomination paper of respondent No. 4 had been accepted at 10-50 a. m. The petitioner, being conscious that the petition may not lie at his instance, as he was never contestant to the reserved seat for workers, stated, in this affidavit, that he had been authorised by one Ghulam Muhammad Chishti, a candidate for election to the reserved seat of workers, to appear and object to the nomination of respondent No. 4, and, therefore, the petitioner was aggrieved person. Alongwith this affidavit, the petitioner also produced a photostat copy of an inspection report made by a Labour Inspector of Shops and Establishments under the West Pakistan Shops and Establishments Ordinance of 1969. This certificate shows that the said Labour Inspector had visited . The shop on 19-11-1983, after the election, and found that two workers were engaged by Messrs Khan & Co. And respondent No. 4 was not shown as a worker. This document, we must straightaway state, has been prepared after the election. ' Having stated the case of parties, we proceed to examine the respective contentions. The first contention, that deserves consideration, is in regard to maintainability of this petition. This point was raised by Mr. Khalid M. Lshaq, for respondent No. 4, and the remaining respondents have also adopted the same argument. Mr. Khalid M. (shag has stated that the nature of dispute in this case was an election dispute within the meaning of rule 65 of the Rules framed under the Ordinance, sub-rule (1) of the said Rule reads as follows :- (1) No election shall be called in question except by an election, petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner)." ' Mr. Khalid M. Shag has also referred to several other petitions disposed of this Court on the ground that the concerned matter was an election dispute, and therefore, the proper course for remedy was by way of an election petition. However, it would appear in the instant case that sub-rule (1) of rule 65 would not be attracted, because under this sub-rule an election can be called in question by an election petition only at the instance of a candidate for that election. Admittedly, the petitioner was not a candidate for election on a worker's seat, and therefore, he could not file an election petition. These elections were not elections to a general seat, so that any citizen could challenge the sane In fact, we are doubtful if the petitioner could have ever objected to the
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nomination of respondent No. 4 on the sole ground that the petitioner was not contesting that election. ' There is, however, another facet to this matter. By permission of the Court, the petitioner was allowed to amend the petition, and an amended memo was actually filed on 10-4-1983. By this date, the -election of Mayor had also been held, and respondent No. 4 has been elected. The relief clause in the amended petition was substituted so as to seek a declaration that the election of respondent No. 4 as Mayor of the Corporation was illegal, and of no legal effect. There can be no dispute that, unless respondent No. 4 had been elected as a Member, he could not have been elected as a Mayor. In these circumstances, the petitioner could challenge the election of the respondent No. 4 as a Member, for it is well-established that, in matters of like nature, the very initial election to a House, from which the respondent No. 4 was elected as a Mayor, could be challenged. To that extent, the petitioner could file an election petition, challenging the election of respondent No. 4 as a Mayor, and all such objections in regard to election of respondent No. 4 as a Member of the Corporation could be agitated. ' We shall also take note of the arguments advanced by Mr. Naseem Farooqui, the learned Advocate for the petitioner, in such context. The learned Advocate's main contention is that, in cases in the nature of seeking a writ of quo warranto, the doctrine of alternate remedy, barring Constitutional jurisdiction, cannot be pressed with any rigout. In short, the contention is that, despite the provision in the election rules which, we must say, are auks framed under a special law, a writ of quo warranto should be granted. Reference has been made to the case of Lt.-Col. Farzand Ali and others(1). Our attention was drawn to the following passage, appearing in the judgment :- "I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution {{FOOT NOTE}} (1) PLD 1970 SC 98 {{FOOT NOTE}} ' says that he cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private right of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These arc two distinct and independent remedies for enforcing Independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election it' that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available precisely for such a purpose." ' The learned Chief Justice set down the principle that a writ of quo wasrranto is invoked in public interest, and seeks determination of the title to hold an office as distinct from the validity of the election. The learned Chief Justice, thereafter, considered the aspect of disqualification, hut, in the last sentence, it was observed that quo warranto would lie, unless expressly barred by some statute. Notice was also taken of the English case Darley v. The Queen (t), wherein the dictum of Chief Justice Tindal in the case of Rex v. Speyer (2), had been approved. On consideration of these cases, the learned Chief Justice summed up the legal position in the following words :-
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"The introduction of election petitions to test the validity of elections and statutory provisions for appeals, have no doubt reduced the demand but have not excluded it altogether. It will still be available in all cases where the matter is, as in the case under consideration, outside the scope of the statutory remedy." ' In Farzand All's case, the learned Chief Justice also referred to Halsbury's Laws of England (Third Edition), Vol. II, page 148, and reproduced the following passage, "even in a case where an election petition is the only remedy when an election is objected to on the ground that the person whose election is questioned was disqualified at the time of the election, yet the remedy by injunction in lieu of quo warranto is available where a person becomes disqualified after election or where there is a continuing disqualification in other words, where the objection is a continuous-holding of the office by the person disqualified." On a reading of the reported judgment, we find that relief can be granted in Constitutional jurisdiction, if an adequate remedy was not available, and (D refusal of the remedy would produce the strange result that the Court would, thereby, perpetuate an illegality. The next case, to which reference needs to be made, is the case of Muhammad Ali v. Muhammad Bashir and others (3). The petitioner in that {{FOOT NOTE}} (1) 12 Cl. & F 537…
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