' GHAZANFAR ALI GONDAL, J.-The facts of the case are that the petitioner was a candidate for membership of Ward No, 2 of Cantonment Board, Rawalpindi Cantt. He submitted his nomination paper on 8th October, 1983 but the same was rejected by the Returning Officer on 9th October, 1983 on the ground that declaration under rule 10, sub-rule (4) of the Cantonment (Elections and Election Petitions) Rules, 1979, had not been filed by the petitioner alongwith his nomination paper.
The petitioner filed an appeal under rule 12-A of the Cantonment (Elections and Election Petitions)
Rules, 1979, but the President Cantonment Board, Rawalpindi, as appellate authority, rejected the appeal of the petitioner on 13th October, 1983 in the following words :- "Appeal rejected under rule 10 (4)."
2. The petitioner has filed this writ petition to challenge the above-said order of the President of the Cantonment Board as well as that of the Re turning Officer.
3. For proper appreciation of points argued in this case, it is necessary to give the text of necessary portions of the rules relevant for the purpose of this case. They read as follows : Rule 10-Nomination for elections. -
(4) A nomination paper delivered under sub-rule (3) shall be accom-that ward as his election agent and, if he appoints some other has appointed or thereby appoints himself or some other voter of panied by a declaration in writing signed by the candidate that he voter, he shall give his name, his or her father's or husband's name and full address of such person and no nomination paper shall be valid without such declaration ; Every candidate shall deposit into the Cantonment Fund a sum of one thousand rupees in cash and attach to the nomination paper an official receipt granted in token of the deposit having been credited to the Cantonment Fund ;
(5) The nomination of a candidate not accompanied by the deposit referred to in sub-rule (5) shall be rejected.
Rule 12 - Scrutiny.
(3) The Returning Officer shall decide all objections, which may be oral or in writing and which may relate not only to the form of the nomination but also to the violation or non-observance of any provision of the Act or these rules and, after making such summary enquiry for this purpose as he may think necessary, shall reject a nomination if he is satisfied :
(i) that the candidate is ineligible for election under the provisions of the Act ;
(ii) that the proposer or seconder is disqualified from being a voter in the same ward as that of the candidate ;
(iii) that the signature of the candidate or of the proposer or seconder is not genuine or has been obtained by fraud :
4. The first point raised by the learned counsel for the petitioner is that the petitioner had actually enclosed declaration under sub-rule (4) of rule 10 but the same had been found missing at the time of secrutiny by the Returning Officer and obviously it had been lost by the office of Returning Officer and since the petitioner was not at fault, the act of the Returning Officer in losing the said document should not prejudice the case of the petitioner.
5. We have considered this question. There is no doubt that the certificate of delivery issued by the Executive Officer/Returning Officer only certified that nomination paper of petitioner had been delivered to him and did not state that the declaration under sub-rule (4) of rule 10 did not stand appended to it, but it must be remembered that said certificate is in prescribed form making it necessary for the Executive Officer to give only the time and date of delivery of nomination paper and the name of person by whom the same had been delivered to him and obviously it could not contain an entry of absence of said declaration as an appendage to the said form. Therefore, in order to find out whether the said declaration had been filed by the petitioner alongwith his nomination, we have to look elsewhere.
6. We have, therefore, also looked into the record of the Returning Officer. The Executive Officer to whom nomination paper of petitioner had been delivered, had endorsed on the right top corner of the said nomination paper, that nomination paper alongwith an affidavit had been received. He did not say in the said endorsement that a declaration (which is a separate appendage to the nomination paper) had also been received along with the nomination paper. The learned counsel for the respondents has sent for, at our instance, a number of files of nomination papers from the cantonment office and has shown us the same and in each of the said files a similar endorsement by Executive Officer in respect of the receipt of the nomination paper and all the documents attached thereto naming each one of the said documents is invariably made at the top right corner of the nomination papers. The endorsement made on the top right corner of the nomination paper of petitioner is in the same hand and with the same pen and ink with which the certificate of delivery of the nomination paper has been signed by Executive Officer and in the said endorsement on nomination paper of petitioner, it is clearly given that the nomination paper alongwith an affidavit of petitioner had been received. It is clear from the said endorsement made by the Executive Officer on the nomination paper of the petitioner that no declaration under sub- rule (4) of rule 10 had been filed by the petitioner. There is a presumption of regularity of official acts. The Executive Officer or his office had no animus against the petitioner nor had any personal interest against the petitioner in the said election and he or his staff cannot be presumed to have done away with the said declaration of the petitioner. The learned counsel for the petitioner has not been able to point out anything on the record which could negate the correctness of the concurrent findings of the two tiers of the said Special Tribunal to the effect that petitioner had not filed the declaration under rule 10 (4) of the said rules.
7. As a matter of fact there is intrinsic evidence on the record of Returning Officer that no such declaration was filed by the petitioner along-with his nomination paper. On the said record we find an affidavit/declaration, executed made by the petitioner regarding belief in the absolute and unqualified finality of the prophethood of Muhammad (peace be upon him) separately attached to the nomination paper. This is over and above the oath/declaration to the same effect which is an integral part of the nomination paper. The said additional affidavit was, therefore, a clear duplication and a mere supererogation. It is clear that petitioner could not have filed this separate affidavit/declaration unless he had misunderstood the nature of declaration which was to be filed under rule 10(4), as a declaration in respect of the finality of the Prophethood of Muhammad (peace be upon him). Clear inference to be drawn from the factum of filing by the petitioner of a separate affidavit/declaration to the same effect is that he had not filed the declaration under rule 10(4) and had instead of the same filed the said affidavit/declaration. Therefore, the allegation that petitioner had actually filed the declaration under section 10(4) stands completely negated.
8. In our opinion, therefore, there is no merit in the said first point raised by the learned counsel for the petitioner and the same is repelled.
9. Faced with this difficulty, learned counsel for the petitioner has next contended-that even if petitioner had not filed the declaration under sub-rule (4) of rule 10, his nomination paper could not have been rejected on that score alone because requirement of filing of a declaration under rule 10(4) was not mandatory as no penalty had been prescribed for non-compliance of the same and that it was a mere irregularity. In support of his said plea, learned counsel has relied upon Ch. Riffat Hussain and another v. Asif Khan and another (1).
10. We have given our anxious thought to this point and have come to the conclusion that it is not possible to accede to the view being convassed by learned counsel for the petitioner. It has been clearly mentioned in sub-rule (4) of rule 10 of the Cantonment (Elections and Election Petitions)
Rules, 1979, that a nomination paper accompanied by a declaration of the appointment of an election agent shall be filed and no nomination paper shall be valid without such declaration. The later words of the said sub-rule are couched in negative form and also lay down the penalty of the nomination paper being treated as invalid, if it is not accompanied by the said declaration. The submission of the learned counsel for the petitioner that rule does not lay down any penalty in case of non-compliance cannot be accepted, as the liability of nomination paper being treated as invalid is a clear penalty provided in the rule. The said rule itself lays down that no nomination paper would be valid without such declaration and clearly contemplates the treatment of the nomination paper as invalid in case of non-compliance with the said provision. It is not understood what other penalty the learned counsel for the petitioner considers necessary to be laid down to make the rule mandatory when it has already been provided in the said rule that its violation would incur the penalty of nomination paper being treated as invalid. It is true that it has not been stated in sub-rule (4) of rule 10 that the said nomination paper shall be rejected, but in our opinion it was not necessary to say so in this rule because if the nomination paper unaccompanied by the declaration was not to be considered as valid, it was meant by the rule-making authority to be considered as invalid or void ab initio or in other words altogether nonexistent in the eye of law, right from the beginning. It must, therefore, be held that rt. e 10(4) is mandatory and its violation would incur the penalty of nomination paper being considered invalid. We have also looked into Ch. Riffat Hussain and another v. Asif Khan and another cited by learned counsel for the petitioner.
That case is clearly distinguishable. In that case the rule 72 of Cantonment (Elections and Election Petitions) Rules,1972, providing for dismissal of an election petition, in case the election petition was not verified for its correctness was couched in permissive language. Accordingly, it was held that it did not make it obligatory upon the Election Tribunal to dismiss the petition and was not mandatory. In the present case, however, the provision made in rule 10 (4) of said rules is couched in negative language and also lays down in it the penalty for non-compliance with the said provision and is clearly mandatory and, therefore, the dictum of law laid down in the cited authority is wholly inapplicable to the present case.
11. The provision made in rule 10 (4) is, therefore, on the face of it, mandatory and the defect on account of non-compliance with it was not a mere irregularity capable of being subsequently cured, but was an illegality wholly vitiating the nomination paper and the Returning Officer was bound D to treat the same as invalid or non-existent in the eye of law and had no option but to reject the same. For all the above reasons, this point ad
(1) PLD 1980 Lab. 626 ' vanced by learned counsel for the petitioner has no substance and the same is also repelled.
12. Lastly, the learned counsel has contended that under rule 12(3) of the said Rules, the Returning Officer could reject his nomination paper only on three grounds, enumerated in the said rule and the ground of non-submission of the said declaration had not been included therein and, therefore, the orders of the Returning Officer as well as that of President Cantonment Board rejecting petitioner's nomination paper are without lawful authority.
13. We have considered this contention of learned counsel for the petitioner also, but we are afraid that we cannot accept that also. It is true that under rule 12(3) only three grounds have been provided on the basis of which the nomination paper is to be rejected, but in our opinion the said grounds are not exhaustive and do not embrace within their ambit all the grounds on which a nomination paper can be rejected. Reference in this connection is invited to sub-rules (5) and (6) of rule 10 according to which a candidate should deposit into the Cantonment Fund a sum of one thousand rupees in cash and attach to the nomination paper an official receipt of the same and the nomination of a candidate not accompanied by the same shall be rejected. We are further fortified in this view of ours by the circumstance that notwithstanding the enumeration of only three grounds for rejection of a nomination paper in rule 12(3), it has specifically been provided therein that the Returning Officer shall decide all objections, which may be oral or in writing and which may relate not only to the form of the nomination but also to the violation or non- observance of any provision of the Act or these rules. All the instances of non-compliance with' provisions of the Act or the rules have not been provided for in the said' three grounds. Non- submission of a declaration provided for under rule 10(4) is clear non-compliance with one of the mandatory provisions of the rules and if the intention of law-maker was to restrict the Returning Officer or appellate authority only to the said three grounds, words of such wide generality, as had authorised the Returning Officer to decide all objections relating to any violation of provision of the Act and rules, would not have been included in the body of the principal portion of this sub-rule.
14. It is clear, therefore, that if an objection is raised at the time of scrutiny or it otherwise comes to the notice of the Returning Officer that the nomination paper of a candidate is not accompanied by declaration as requited by sub-rule (4) of rule 10, the Returning Officer is entitled to decide the said objection and hold the said nomination paper to be invalid and reject the same. The mere fact that in sub-rule (3) of rule 12 only three grounds for rejection of the nomination paper have been enumerated does not take away the power of Returning Officer to reject the nomination paper on account of violation of mandatory provision made in rule 10 (4) of said rules.
15. In this view of the matter, we have no hesitation in holding that the Returning Officer as well as the President Cantonment Board had no exceeded their jurisdiction in rejecting the nomination paper of petitioner on the ground that he had not annexed to it the declaration under rule 10(4) o the said rules.
16. In view of the above, there is no force in this writ petition and the same is dismissed with costs.