SALEEM AKHTAR, J.-In both the Petitions, common point of law is involved and we, therefore, propose to dispose them by this judgment.
2. In Petition No. 25 of 1980 the petitioner Mohammad Hanif has challenged the order passed by the Election Tribunal, Sukkur, whereby an application filed by the petitioner for rejecting the Election Petition on the ground that it was filed in violation of rules 65 and 66 of Sind Local Council (Election)
Rules, 1979 was dismissed. The petitioner along with respondents Nos. 1 and 2 was a candidate to the Local Bodies Election from Ward No. 4 Unit No. 12 of Rohri Municipality. The Election was held on 25th September, 1979 and the petitioner was declared successful. After the polling on 25th September, 1979 at Rohri the votes were counted on 27th September, 1979 and the Petitioner secured the highest number of votes. The Returning Officer after obtaining the result of count declared by Public Notice the petitioner's name to have received the highest number of votes: The result was submitted to the Deputy Commissioner and the Election Authority published the name of the petitioner as the returned candidate in the official Gazette dated 1-11-1979. After the result was declared and before it was gazetted the respondent No. 1 filed the Election Petition before the Election Authority on 20th October, 1979. The Election Petition was admitted by the Election Authority and transferred to the respondent No. 3 for hearing. The petitioner raised the preliminary objec-- tion before respondent No. 3 by filing an application challenging the maintainability of the Election Petition on the ground that the Election Petition was filed in violation of rules 65 (2) and 66 (b) of Sind Local Council (Election) Rules, 1979 hereinafter referred as the Rules, and therefore, under rule 68 the Petition should be dismissed. The respondent No. 1 filed an objection stating that copy of Petition was sent to the petitioner under postal receipts Nos. 63, 64, dated 29-10-1979, which was duly received by them on 30th October, 1979 and 4th November, 1979. It was further submitted that the Petition was filed before the publication of the names of successful candidates in the Gazette, but as there is no bar to file a Petition before the Notification the application is misconceived. The respondent No. 3 after hearing the parties, dismissed the application.
3. In Petition No. 71 of 1980 the petitioner and respondent No. 1 were candidates from Electoral Unit No. 2 Part I of Union Council, Trimonh Taluka Rohri, District Sukkur. The polling was held on 25-9- 1979. The petitioner secured the highest votes and after the declaration of the result by Public Notice the Election Authority, published it in Extraordinary Gazette on 1st November, 1979. The respondent No. 1, however, filed an Election Petition on 15-10-1979, which was admitted by the Election Authority and transferred to the respondent No. 2 for hearing. The petitioner filed appli-- cation objection to the maintainability of the Petition on the ground that the same was filed before the publication of the result in the Gazette and that notice as provided by rule 66 (b) was not served on the respondent No. 1. After hearing the arguments the respondent No. 2 by an order dated 6-4-1980 dismissed the preliminary objections raised by the Petitioner. We have heard Mr. Abdul Majeed Abbasi and Mr. Khadim Ali Shoro for the petitioners and Mr. Farman Ali and Mr. Ashiq Hussain Zaidi for the respondents.
4. In both the Petitions the admitted position is that the Election Petitions were filed before the publication of the Election result in the official Gazette. In order to appreciate the points raised by the parties it will be convenient to refer to the relevant Rules on the basis on which the impugned orders have been challenged :- 65.-(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).
(2) An election petition shall be presented to the Election Authority within sixty days of the publication in the official Gazette the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited in a Scheduled Bank in favour of the Election Authority as security for the costs of the petition a sum of five hundred rupees.
(3) An election petition shall he presented by a petitioner and shall be deemed to have been presented-
(a) When it is delivered in person to such officer as may be appointed by the Election Authority in that behalf by the petitioner ; or by a person authorised in this behalf by the petitioner ; or
(b) When delivered by registered post to the officer of the Election Authority or to the officer as aforesaid.
66. The petitioner shall join as respondents to his election petition----.
(a) all contesting candidates ; and
(b) any other candidate against whom any allegation, if any, corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of his petition.
67.-(1) Every election petition shall contain--
(a) a precise statement of the meterial facts on which the petitioner relies,
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act ; and the date and place of the commission of such practice or act ; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely-
(a) That the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or
(b) that the election as a whole is void.
(3) Every election petition and every schedule or annexe to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings.
68.-(1) If the Election Authority is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith.
(2) If an election petition is not dismissed under sub-rule (I), the Election Authority shall refer it for trial to a Tribunal."
6. The main contention is that the Election Petition was filed before the Election Authority before the publication of the election results in the official Gazette, and therefore, in terms of rule 68 (1) the Election Petitions were liable to be dismissed. It has further been contended that notice of filing of petition as provided under rule 66 (2) has not been complied with. In view of the breach of rule 65
(2) and 66 (b) the petition should be dismissed under rule 68.
7. The learned counsel for the petitioners have contended that rule 65 is couched in a mandatory language in affirmative terms, and therefore, it is compulsory that the petition should be filed after the publication of the results and within 60 days of such publication. To correctly appreciate the interpretation and implication of the aforestated Rules relating to the elec--tion dispute it will be necessary to examine the scheme of the Ordinance and the preceding Rules relating to the counting and declaration of the results. Rule 40 provides that the Presiding Officer shall count the votes immediately after the close of the poll in the presence of such of the contesting candidates, Election Agents and Polling Agents as may be present. Under rule 40, sub---rule (9) the Presiding Officer immediately after the count, prepares statement of the count in Form XIII showing therein the number of .Valid votes polled by each contesting candidates and the ballot papers' excluded from the count. The Presiding Officer is also required to prepare in Form XIV, ballot paper account.
Each statement prepared by the Presiding Officer is to be signed by the contesting candidates or their agents. After complying with these procedures such statements and packets containing the ballot papers are to be sent to the Returning Officer. Under rule 41 after notice to the contesting candidates the Returning Officer shall consolidate in Form XV the result of counts furnished by the Presiding Officer. He is authorised to examine the ballot papers excluded from the count by the Presiding Officer and if he finds that such exclusion was not proper be may count it as a ballot paper cast in favour of the contesting candidate for whom the vote has been cast. If after consolidation of the results of counts it is found that there is equality of votes between two or more contesting candidates then lot is drawn and the candidate on whom the lot fails is declared elected. After complying with the procedure provided under rules 41 and 42 the Returning Officer shall declare by public notice the names of such contesting candidates as have or are deemed to have received the highest number of votes. Under rule 43 (2) the public notice shall contain the name of and the total number of votes received by each contesting candidate. Immediately after declaration of the result by public notice the Returning Officer shall submit to the Deputy Commissioner a return of the election in Form XVI together with a copy. Of the consolidated statement. Thereafter, the Election Authority shall arrange to have the names of the returned candidates of a council published in the Official Gazette. A perusal of the Rules makes it clear that under rule 43 (1) the result is declared by public notices This public notice is the official and final declaration of result. It is on the basis of this result that the Election Authority arranges for publication of the names of the returned candidates in the Official Gazette. From such declaration of result till its publication in the Official Gazette there is nothing in the Ordinance or the Rules to suggest that it can be changed, altered, amended or cancelled except by an Election Petition. In these circumstances it seems that publication of the results in the Gazette is a mere formality.
8. The learned counsel for the petitioner has relied upon Mohammad Usman v. C. P. Election Tribunal and others PLD 1967 Dacca 786,where it was held that the appointment of Election Tribunal must be! Made by notification in Official Gazette and therefore such appointment is effective from the date of publica--tion in the Gazette and not from the date of notification. In this case the Dacca High Court was considering the provision of section 59 (1) of Electoral Roll Act, 1967 which provides that the appointment of Election Tribunal will be effective from the date of publication in the Gazette of such appointment. Here under rule 43 there is nothing to suggest that the election result will take effect only after the publication of the result in the official Gazette.
9. It therefore, seems that publication of the result though necessary is merely procedural. On consolidation of the result of the count and its declaration by public notice, 'a candidate becomes officially' notified of the result on the date when public notice is issued., The cause of action for filing Election Petition will, therefore, accrue the moment the result is declare by public notice under Rule 43.
10. We now revert to Rule 65, which provides that Election Petition shall be presented to the Election Authority within 60 days of the publication in the Official Gazette the names of the returned candidate. The bar imposed by this Rule is that no Election Petition can be filed after expiry of 60 days of the publication of the result in the Official Gazette. There is nothing in this Rule to suggest that once the result is declared and is awaiting publication in the Official Gazette, the candidate cannot file . An Election Petition. This provision cannot be termed prescribing a date from which period of limitation for filing a petition is to be computed. It only fixes a date after which no petition can be filed. Unless it is provided differently, an aggrieved person is entitled to invoke the remedy, the moment cause of action accrues to him. The Rules regulating the remedy. Have not prescribed any date for commencing an action or filing Election Petition. In the circum--stances the aggrieved party can file petition after the declaration of the result under rule 43 which is awaiting publication in official' Gazette and - cannot be changed, cancelled or challenged except by an Election Petition.
11. The learned Advocates for the petitioners relying upon the case of Atta Mohammad Qureshi v.
Settlement Commissioner PLD 1971 SC 61,have contended that as the law provides a thing to be done in a certain manner the proceeding will be invalid if the thing is being dine in any other manner. In Atta Mohammad Qureshi's case the Supreme Court was considering section 20 (5) of Displaced Persons (Compensation & Rehabilitation) Act, 1958 which provided that in exercise of revisional jurisdiction no order shall be passed affecting any person without giving him reasonable opportunity of being heard. While interpreting this proviso following observation was made :- "it is well settled that the neglect of the plain requirements of a statu--tory enactment, which prescribes how something is to be done, will invalidate the thing being done in sonic 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.
Nonetheless, 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. In Mayor of London v. R., it was stated that "the words negative and affirmative of a statute mean nothing. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative but the question is the same. In Liverpool Borrough Bank v.
Turner Lord Campbell observed as follows :- "No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with and implied nul--lification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."
In Howard v. Bollingdon, Lerd Penzance after citing this dictum of Lord Campbell added as follows :- "I believe as far as any rule is concerned, you cannot safely go further than that. In case you must look to t!:; subject-matter, consider the importance of the provision and the relation of that provision to the general object to be secured by the Act and upon review of the case in that aspect, decide whether an enactment is, what is called, imperative or only obligatory."
Onother principle which has been enunciated in this behalf is that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circum--stances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language."
12. Applying this principle to the facts of the present case it is clear that firstly the language of rule 65(2) is that Election Petition shall be presented within sixty days of the publication in the official Gazette the name of the returned candidates. Reading this Rule with rule 68(1) it can be inferred that the Election Petition shall be dismissed if it is filed after the ex--piry of the period of sixty days as mentioned in rule 65(2). There is no prohibition or penalty imposed if it is filed before the publication of the Gazette. However, in every case action can be initiated only after the accrual of the cause of action.
13. The learned counsel for the petitioners referred to the case of Niaz Muhammad Khan v. Mian Fazal Raqib PLD1974.SC134, where it was held that "As a general rule however, a statute is understood to be directory when it contains matters, merely of direction, 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." This observation was made while considering the provisions of N.-W. F. P. Pre- emption Act, 1950 which provides that if the plaintiff fails to furnish security as ordered by the Court the plaint shall be rejected. The aforestated observation and the reference in which it was made can well be appreciated from the following observation :- "Viewed in this light and keeping in mind the fact that provisions in question are embodied in a statute dealing with a right which has been described as predatory or piratical, it would appear that the require--ment enjoined in subsections (1) and (4) of section 23 of the Act is mandatory in nature as failure to comply with the same is to be visited by penal consequence of the rejection of plaint."
14. The provisions under consideration are Rules relating to conduct of Election and the manner in which it should be challenged. Rules 65, 66 and 67 are procedural in nature. They are not in the wordings of the Supreme Court "predatory or piratical" in nature. These Rules prescribe procedure for filing Election Petitions. It is well settled that such Rules of t procedure should be liberally interpreted to advance the cause of justice rather than stifle it on technical grounds. A bare reading of rules 65(2) and 68 makes it clear that a petitioner will be visited with penalty only if the peti--tion is filed after the expiry of sixty days of the publication of the result in the official Gazette. It therefore follows that the period of limitation so fixed by rule 65(2) will be treated mandatory. The penalty for non-compliance as provided by rule 68 cannot be imposed on the petitioner who files petition before the publication of the Gazette.
15. This brings us to the question which arises as a corollary to the above observation : what will be the nature of the proceedings which are filed before the publication of the Gazette. The cause of action for filing a petition accrues the moment the result is declared by public notice under rule 43, any petition filed before that will be incompetent. However if a petition is filed after the declaration of results under rule 43 and before the publica--tion of the Official Gazette the same will be maintainable as cause of action has already accrued. However for the sake of argument on a strict inter--pretation of rule 65(2) and rule 68 favourable to the petitioner it may be contended to the extent that such Election Petition will be premature. If this contention is accepted then the moment Gazette is published the petition will mature. There are cases where suits and petitions at the time of institu--tion are premature but during the pendency of the proceedings by lapse of time they mature. In that event such actions are not dismissed. Reference can be made to the case of Ahdullah Bhai v. Ahmad Din PLD1974SC106, where it was held that it was open to the appellate Court to have decreed the suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. Again in the case of Amina Begum v.
Ghulam Dastagir PLD 1978 SC 220,after referring to a host of authorities the same view was followed. In the present case the petitions were filed after the result was declared under rule 43 and the Gazette was published during their pendency. At the time the Petitions were fixed for hearing this objec--tion relating to their maintainability did not exist and the petitions could not be dismissed on this ground.
16. The learned counsel for the respondents have contended that under rule 68 only the Election Authority has the jurisdiction to dismiss the petition for non-compliance with rules 65 to 67. It is to be noted that in both the Petitions the Election Authority has not been made a party to the proceed--ings. The preliminary objections raised by the petitioners before the Elec--tion Tribunal related to the non-compliance with rules 65 and 66. Rule 68 provides that if the Election Authority is satisfied that rules 65 to 67 have not been complied it shall dismiss the Petition. It is the Election Authority and not the Election Tribunal which is vested with the jurisdiction to dismiss the petition for such non-compliance. In the case of Ch. Abdul Majid v. Muhammad Hanif and others bearing No. C. P. S. L. A. K.-48 of 1981 objection was raised to the maintainability of the Election Petition on the ground that as required by rule 66 all the contesting candidates had not been joined as respondents. The Election Tribunal had held that under rule 68 it had no jurisdiction to dismiss the Election Petition. The order of the Tribunal was challenged in the High Court where it took note of the finding of the Tribunal that it had no power to dismiss the Election Petition under rule 68.
Nevertheless it directed that the Election Tribunal bad not seriously considered the objection as it failed to consider as to whether rule 66 was mandatory or directory. The judgment of the High Court was challenged before the Supreme Court where after referring to rule 66 following observa- -tion was made; "He therefore contended that it was not open to the Election Tribunal to go into the question of maintainability of the petition as that objection had to be heard and decided by the Election Authority ; and if. The Election Authority did not dismiss the petition for this reason, the Election Tribunal had no jurisdiction to review that decision. I bare reading of this Rule leads us to conclude that this submission has substance. It was for the Election Authority to consider whether the Election Petition was or was not properly constituted in accordance with rule 66 but once it held that it was so properly constituted then in terms of sub-rule (2) it was obligatory to refer it for trial to the Election Tribunal."
17. In view of the aforestated dictum of the Supreme Court the Election) Tribunal had no jurisdiction to dismiss the Election Petition under rule 68 for non-compliance with rules 65, 66 and 67. The Election Tribunal has acted properly is refusing to dismiss the Election Petitions on preliminary grounds. In the circumstances the Election Authority was a necessary party but in spite' of such objection being .Raised the petitioners have not joined it as a respondent. This ground in itself is sufficient for dismissal of both the) petitions. '
18. In the result both the petitions are dismissed with no order as to costs.