' The petition is addressed under section 44 of the Azad Jammu and Kashmir Constitution Act, 1974, to invoke special jurisdiction of this Court, to annul the election of Chairman District Council, Muzaffarabad held on 10th December, 1983.
2. Mr. Muhammad Mumtaz Abbasi, petitioner and Raja Abdul Qayum Khan, respondent No, I, were the candidates for the election of office of the Chairman, District Council, Muzaffarabad. The petitioner secured 24 votes out of 60, whereas respondent obtained 36 votes and was declared elected. Mr. Muhammad Mumtaz Abbasi not feeling satisfied with the result of the election, challenged its validity on various counts. The allegations are divided into two parts. One part of the allegation assails the conduct of the Presiding Officer and the manner of elections. The other part pertains to attribution of use of political influence by the reSpondent, to achieve the success. It was alleged that the result of election was accomplished by the respondent in contravention to the provisions of section 21 of the Azad Jammu and Kashmir Local Government Ordinance, 1983. The allegations are precisely reproduced below :- "(i) That respondent No, 1 was Vice-President of Azad Jammu and Kashmir Muslim Conference. He contested the election as a Member of the District Council and Chairman of the Council, on the basis of political affiliation with Muslim Conference. The election campaign was organized and engineered by the party leadership to make sure success of the respondent. One of the attributed acts of party-support was a letter, Annexure 'A', purported to have been written by Sardar Muhammad Abdul Qayum Khan, the party-chief, to the electors to vote for respondent No, 1, to elect him as Chairman of the District Council. It was further alleged that the prominent workers of the party actively canvassed on the election day and arranged direct delivery of votes to them, instead of polling it in the ballot-box. In consequence thereof, dozens of electors brought their votes outside and handed them over to Sardar Attique and Ch. Shames Din (workers of the Muslim Conference). As the petitioner apprehended conspiracy at the nick of time and protested against violation of secrecy of ballots, the votes brought outside and delivered to political workers could not be polled.
(ii) that the election proceedings were conducted in unlawful fashion so as to ensure success of respondent No,
1. The conduct of the Presiding Officer was alleged as mala fide. It was averred that the Presiding Officer failed to maintain secrecy of ballots as the ballot-papers contained the names and parentage of the electors. This was deliberately done in order to ensure that the principal electors who had already committed their support under the political influence to respondent, in fact, voted for him. In addition to that, it was attributed that the Presiding Officer counted the votes of the petitioner and declared the results without counting the votes of the opposite candidate. The act of the Presiding Officer was, thus, arbitrary and mala fide. The Presiding Officer deliberately omitted to count the votes of respondent as the number of votes secured by the respondent was less than the votes of the petitioner. It was so assumed as the votes brought outside the Polling Station and delivered to the workers of the party, could not be polled. The petitioner moved an application at the time of counting of votes and asked the Presiding Officer not to declare the results as the proceedings were derogatory to the mandatory provisions of law. Ignoring the application of the petitioner, the Presiding Officer announced the results. The petitioner also moved an application and prayed that the' ballot-papers polled in the ballot.Box may be preserved and may not be destroyed so as to ascertain the legality of the proceedings of the elections. The ballot-papers secured by the parties in the election were destroyed. The destruction of ballot-papers by Presiding Officer, again, was ascribed as derogatory to the rules and mala fide.
3. The attributions made by the petitioner were expressly denied by the respondent who objected to the petition and averred that it was not entertainable.
4. Here, it may be stated that on completion of arguments, the petitioner moved an application on 9th April first wherein he made offer to the effect that if the allegation of entry of names and parentage of electors, in the ballot-papers, ascribed to the Presiding Officer, was denied in his statement on special oath on Holy Qur'an by Mr. Abdul Rashid, who represented the respondent and happened to be a Member of the District Council, the petition may be dismissed. This application was supplemented by another application made on 6th May. In the subsequent application, it was expressed that if Messrs Raja Shah Jehan, Yasin Awan, Muhammad Nazir Khan, Kh. Ghulam Rasool and Abdul Rashid, Members of the District Council, in their statement on Holy Qur'an, deny that the ballot-papers did not contain the names and parentage of the electors, the petition may be dismissed. The respondent refused to accept the offer and declined to abide by the terms of reference of special oath. However, it was pleaded that applications were mala fide, as the petitioner by making such an offer, intended to scandalize the position of above-named persons. The inference likely to flow from the offer made by the petitioner and refusal to accept such offer by the opposite party, shall go along the ultimate decision of the case.
5. It is already -noticed that the allegations levelled in the petition are of dual nature. One part of it affects the conduct of the Presiding Officer in holding the elections in unlawful manner. The other part pertains to disqualification incurred by the respondent on account of contravening the provisions of section 21'of the Ordinance by securing his success in exercise -of political influence in contesting elections on the basis of direct affiliation to a political party.
6.
6. The elections of Local Bodies were conducted under the Rules called the Azad Jammu and Kashmir Local Government Elections of Chairman and Vice-Chairman Rules, 1983 (hereinafter referred to as election Chairman rules). These rules were enforced by the Government in exec of its powers conferred under section 82 of the Azad Jammu and Kashmi Local Government Ordinance, 1983 (hereinafter called as the Ordinance). Close study of these rules reflects that the scheme and procedure introduce to hold the elections of Chairman and Vice-Chairmen of the Local Council, were summary in nature. Rule 3 postulated that election of Chairman and Wee-Chairman of a Local Council (Local Council, as defined under section 2(xix) of the Ordinance, includes the District Council, shall take place immediately after oath of office was administered to the members of the Local Council. Rule 6 provided that election of the Chairman and Vice-Chairman of the Local Council shall be conducted through ballot papers bearing names of the contesting candidates or any symbol allot for the purposes, on a simple paper to be cast in ballot-box provided by Presiding Officer. The Presiding Officer was empowered under rule 10 t Count the votes polled for each candidate and to declare the result before t members of the Local Council. The aforesaid position suggests that various formalities for holding elections of Chairman and Vice-Chairman were t be completed within one sitting. The scheme of law, as content* under rule 6, was to hold elections by adhering to secret ballots. The ballot-paper was a plain paper which contained names of the contesting candidates or symbols allotted for the purposes and the ballot-papers were to be cast in the ballot-box. On completion of voting, the votes polled for each candidate were to be counted in presence of the candidates and the result was to be announced forthwith. Thus, the essential conditions for holding the election of Chairman and Vice-Chairman of Local Council were :- (0 to hold election by secret ballots ;
(ii) to provide ballot-papers on a simple paper bearing the names of the contesting candidates or symbols allotted to them ;
(iii) the ballot-paper was to be cast in the ballot-box ; and
(iv) the ballot-papers polled for each candidate were to be counted openly and the result was to be declared in presence of the members of the Council."
In the instant case, one of the allegations was that the ballot-paper provided to the electors were derogatory to the mandatory provisions o rule 6, as the ballot-papers instead of bearing the names of the contesting candidates or symbols allotted for the purposes, contained the names and parentage of the electors. It was purely a question of fact and such face could be ascertained only on scrutiny of the ballot-papers. As the ballot papers polled for each candidate were not available, the controversy could not be settled conveniently. Here, it is, again, necessary to note that the allegation of violation of rule 6, as discussed above, was sought to be supported by another allegation of destruction of ballot-papers. It was argued that the act of destruction of ballot-papers immediately after the result, was violativ of law and mala fide. The election of Chairman Rules contained no expire provision for preservation of record or its immediate destruction on completion of elections. These rules were absolutely silent. This may be so as rule 11 ousted the remedy of election petition. It provided that there shall lie no petition against the election of Chairman and Vice-Chairman held in the manner prescribed thereunder. It was true that in absent of provision for election petition, preservation of the ballot-papers was no shown mandatory but at the same time, the rules contained no obligatory provision for the Presiding Officer to destroy the ballot-papers forthwith. Thus, the destruction of ballot-papers by the Presiding Officer was no positively protected by the rules. In my well-considered view, the preservation of the record was essential to ascertain the bona fide of the election proceedings, as the act of the Presiding Officer was justiciable uncle the Interim Constitution Act as well as under sections 21(5) and 22 of the Ordinance.. Section 21(5) is a check ensuring that election was conducted honestly, justly, fairly and in accordance with the provisions of the Ordinance and rules.
In order to achieve the intended object of the mandatory provision of subsection (5) of section 21, it was necessary to have the record of the elections so as to ascertain the bona fide of the election proceedings. In absence of the election record, the purpose postulated by subsection (5) of section 21 could not be achieved. It appear that the Presiding Officer was alive to such a situation as he preserved t record of election proceedings, including the statement of the election results, the applications moved by the petitioner and respondent, containing various allegations pertaining to election proceedings and list of the present members of the District Council containing the signatures of each elector. The only departure noted in the case was destruction of the ballot-papers.
' This aspect would have attached no importance to the action of the Presiding Officer provided there was no allegation of supplying invalid and illegal ballot-papers to the electors as well as bringing out some of the ballot-papers and delivering them to unauthorised persons, as alleged by the petitioner. The Presiding Officer fell in error to destroy the ballot-papers in disregard to the protest, warning and application of the petitioner.
7. One of the accepted rules of interpretation of statute was that where the language of an Act was ambiguous and difficult to construe, for ' assistance in its construction, the Court was allowed to refer to rules made under the provisions of such Act, particularly when the rules framed under the statute made it permissible to read them alongwith the Act as the rules were framed under the statute to achieve the intended purposes. The legislature framed the Ordinance to establish Local Government Institutions throughout the State. The essential provisions were incorporated in the Ordinance and in 'order to accomplish the intended object, the legislator conferred powers on the Government to make rules to carry out the purposes of the Ordinance. Thus, the Government in exercise of it powers, framed two kinds of rules under this section. The first kind of rules were known as the Azad Jammu and Kashmir Local Government Election Rules, applicable to general elections of Local Council. The on the rules taking birth from the provisions of the Ordinance were called the elections of Chairmen and Vice-Chairmen rules. The rules applicable to general elections contained a comprehensive_ scheme, necessary for holding the elections to give proper shape to the Local Government Institutions, in order to achieve the intended object. Thus, under these rules, the Legislature provided a scheme consisting of sealing of ballot-papers in separate packets, preparation of election statements under the signature of the candidates or their election agents, or Polling agents, consolidation of results by the Presiding Officers, .Resealing of ballot packets, supplying of copies of such results to the candidates, forwarding of entire election record by Presiding Officer to the Collector, supply of copies of ballot papers to candidates and in case of election petition, production of such record before the Election Tribunal. These provisions were contained in rules 42, 43, 46, 47 and 48 of the election rules. 'In order to ascertain the correct intention of the legislature, it was permissible to seek assistance from the election rules to settle the controversy at rest. This was just to show that the preservation of the record of the elections even in the election of the Chairman and Vice-Chairmen was equally necessary. The Presiding Officer was under duty to forward the record of the election to the Collector alongwith the results of the elections so that such record was available to the Government in case power of the Government was invoked under subsection (5) of section 21 and section 22 of the Ordinance or before on the Court of /competent jurisdiction. A departure from the rules, as discussed above, obviously, has its effect but such effect was to be given in the light of the provisions of section 21(5) and section 22 of the Ordinance. Therefore, the opinion on this objection shall merge into the ultimate result of the case.
8.
8.The main objection, as stated earlier, was that respondent, Chairman of the District Council, achieved the success in the elections by projecting himself as a candidate of Muslim Conference by seeking assistance of party workers and use of letter, Annexure 'A', written by Sardar Muhammad Abdul Qayum, the Party Chief, to the electors to exercise his political influence in favour of the respondent. This allegation fell within the purview of sections 21 and 22 of the Ordinance. The relevant provisions of sections 21 and 22 are reproduced below :- "Section 21.-(1) No person shall contest any election to any local council on the basis of any direct or indirect affiliation to a political party, organization or body or institution.
(2) No person can present himself as a candidate or nominee of any political party or receive any financial assistance or use any document, sign, insignia, or flag, indicating association with any political party.
(3) No candidate shall seek votes on political party basis or on the basis of any political party's manifesto.
(4) A candidate is prohibited from seeking votes or support b attributing direct or indirect party affiliation to any of the opponents.
(5) The Government may issue such instructions and exercise such power including the power to review an order pissed by an officer under the Ordinance or the rules, and make such consequential order as may be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules.
' Section 22. Contravention.-Any contravention of the provisions contained in section 21 shall make a candidate liable to be disqualified from contesting elections for a period of four years and if elected, he can also be removed for similar reason and debarred from election for the same period." .
' It is evident from the provisions of section 71 that it imposed a complete bar on the candidates contesting elections of local council, not to seek election on the basis of 4,0y direct or indirect affiliation to a political party, organisation or body or institution. The restriction imposed by the legislature deprived a candidate to seek votes on the basis of a political party or its manifesto.
There was a clear prohibition from seeking votes or support by attributing direct or indirect party affiliation. Section 22 of the Ordinance was a penal section. The provisions of section 22 postulated that any contravention of the provisions contained in section 21 disqualified a candidate found liable for such contravention from contesting elections for a period of 4 years and if such person was already elected but subsequently found guilty of contravention of the restrictions, he was liable to be removed for similar reasons and was debarred from election for the sarong period. It is evident from the provisions of subsection (5) of section 21 and section 22 that the legislature conferred authority on the Government :- "(1) to issue such instructions and exercise power to ensure that election was conducted honestly, justly, fairly and, in accordance with the provisions of the Ordinance and the rules
(ii) on getting information of violation of the conditions listed in subsections (1), (2), (3), and (4) of section 21, from any person, elector or candidate or sun morn, the Government was empowered to deprive a candidate found guilty of violation of the aforesaid conditions, to contest elections and to disqualify him for a period of 4 years ; and
(iii) in exercise of its powers to review an order passed by an officer under the Ordinance or the rules,. The Government was conferred jurisdiction to remove an elected Member, Chairman or Vice-Chairman of the Council, on finding him guilty of violation of the conditions enumerated above and thereby to debar him from elections for the same period.
The aforesaid power conferred on the Government was in the nature of a check introduced by the legislature to ensure honest, just and elections of Local Council. So far as the elections of the members of the Council were concerned, it was a check in addition to the check to election petition provided under the Local Government Elections Rules. But in the case of elections of Chairman and Vice-Chairman, this was the only check to provide remedy to an aggrieved contesting candidate. The power conferred under subsection (5) of section 21 and section 22 was parallel to the power conferred on the Government under subsection (2) of section 25 of the Ordinance. Subsection (2) of section 25, empowered the Government to remove a Chairman, or Vice-Chairman or a Member of the Local Council from the office if it was discovered that such Member, Chairman or Vice-Chairman.
(i) incurred any disqualification specified in Part H of Second Schedule ;
(ii) absented himself without reasonable cause from three consecutive meetings ;
(iii) he was found guilty of an abuse of powers or misconduct in the discharge of his duties as a member or had been responsible for any loss or, misappropriation of any money or property of any local council, or any local body or other local authority ; or refused to take oath."
It is clear from the provisions discussed above that in both the cases when a person was found guilty under sanction (5) of section 21 and! Subsection (2) of section 25, the Government alone was empowered to take suitable action envisaged by the statute.
' It may be stated here that the words "contest no election to any local council" occurring in subsection (I) of section 21, signify and include the election to the seat of a Member, Chairman and Vice-Chairman of the council and Local Council, as defined under section 2(xix), includes District Council. Therefore, the provisions are equally applicable to the present case.
9. Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 conferred jurisdiction on this Court to act on the application of any aggrieved party and provide adequate remedy provided it was satisfied that no other adequate remedy under law was available to such an aggrieved party. The words "adequate remedy" used in the section deserve immediate analysis.
These words received attention of various eminent Judges in different cases and according to consensus words, "adequate remedy" were defined as, comparatively, an efficacious, convenient, beneficial, effective and speedy remedy. The test of aforesaid meaning of `adequate remedy' primarily rests on the proposition of fact and law raised in each case. Reference may be made to Mahboab Ali Malik's case (1), Muhammad Ashraf v. Board of Revenue (2), PLD 1974 Lah. 49, P I. D 1966 SC 639 and PLD 1967 Lah.
1251. {{FOOT NOTE}}
(1) PLD 1963 Lah. 575 (2) PLD 1968 Lab. 17 {{FOOT NOTE}}
10. It is noticed that the Ordinance which created a right in the petitioner, equally provided a remedy as contemplated under subsection (5) of section 21 and section 22. The remedy provided by the statute was not shown inadequate in any manner. Thus, in presence of adequate remedy special jurisdiction of this Court could not be invoked at this stage. The jurisdiction of the Court could be invoked provided the remedy envisaged by law could not be availed for want of forum, or failure, negligence, omission or mala fide of the Government to exercise the jurisdiction vested in it or exercise of such jurisdiction in derogation to celebrated principles postulated by the statute.
Unless either of these conditions was not shown proved, it was not permissible to grant the desired relief.
11. In consequence of the analysis made above, it is held that the petitioner is eligible to seek redress of his grievance in the light of the provisions of subsection (5) of section 24 read with section 22 of the Azad Jammu and Kashmir Local Government Ordinance, 1983. In presence of the adequate remedy, this Court does not consider expedient to settle the controversy at rest. The petition is, therefore, dismissed. Nevertheless, parties are left to bear their own costs.
THE END