1. ' HAIDER ALI PIRZADA, J.-The petitioner through this petition has prayed for the following reliefs :-
(1) Declaring that the petitioner has been duly elected as member from Unit No, 14 H.M.C.
2. Hyderabad in- the elections held on 29-9-1983 having secured 1,296 votes as against 998 secured by the respondent No, 2, being a lawful candidate for the Unit No 14 in pursuance of the orders passed by this Hon'ble Court in C. P. No, 677/1983.
2. Further declaring that the orders passed by the respondent No, 1 refusing to treat the petitioner as a candidate and duly elected member from Unit. No, 14 H.M.C. After the elections were held to be without lawful authority being contrary to the provisions of Sind Local Government Ordinance and Sind Local Council Election Rules, 1979 as amended.
(3) Directing that the petitioner who has been duly elected shall he notified as elected Member from Unit No, 14 H.M.C. Hyderabad in public notice as required by rule 43 of the Sind Local Council Election Rules, 1979 and further directing that the petitioner shall be administered the oath of the office of the Councilor No, 14 H.M.C. Hyderabad and thereby holding that the petitioner if he so chores can contest the election for the post of Mayor, Hyderabad Municipal Corporation Hyderabad.
(4) That the cost of the petition be borne by the respondents and any other relief this. Honourable Court deems fit and proper.
3. ' The brief facts leading to the filing of the above petition are that the petitioner was elected as Councillor Unit No, 14, Hyderabad Municipal Corporation in 1978 whereas respondent No, 1 is the Returning Officer for elections to the Municipal Corporation, 1983 and the respondents 2, 3 and 4 are that rival candidates of the petitioner for the election held in 1983. The petitioner and respondents Nos. 2, 3 and 4 filed nomination papers for contesting the election from Unit No, 14, H.M.C. Hyderabad, which after scrutiny were found in order. On 7-9-1983, the petitioner applied to the respondent No, 1, requesting that the symbol for contesting the election may be allowed as "Apple". It is the case of the petitioner that he started his campaign for the election to Unit No, 14 constituency. The petitioner was served with a notice dated 31-8-1983 by Commissioner Hyderabad Division, Hyderabad calling upon him to show cause on 3-9-1983 as to why he should not be disqualified. In response to the above show-cause notice, he appeared and filed a reply.
4. However, the Commissioner of Hyderabad by his order dated 5-9-1983 declared him as disqualified. He filed Constitutional Petition No, D-677 of 1983 which was allowed on 28-9-1983.
5. ' The petitioner was allowed to participate in the election held- on 29-9-1983. In the un-official result announced by the Presiding Officer, he was declared as successful candidate. On 3-10-1983 the respondent No, 1 declared the respondent No, 2 to be elected instead of the petitioner who secured number of votes viz. 1,296 votes against 998 votes secured by the respondent No, 2.
6. ' The petitioner sought to challenge the legality of the order of the respondent No, 1 as he refused to consider the petitioner as candidate at the time of the official count taken under rule 43 of the Election Rules and, also the order of the respondent No, 3 declaring the respondent No, 2 to be elected. These orders are now before us in this petition.
7. ' We heard the learned counsel for the parties, on the maintainability of the petition as well as on merits.
8. ' Mr. Muhammad Ali Shaikh, the learned counsel for the petitioner in support of the petition has contended as follows :-
(a) that as the impugned action is illegal, this Court will not non-suit the petitioner merely on the ground that a right of an election petition has been provided. It was also urged by him that the right of an election petition provided is not an adequate alternate remedy.
(b) that the present case does not involve adjudication of disputed question. Of fact.
(c) that since admittedly the petitioner was allowed to participate, he cannot be refused to be considered as a candidate at the time of official count. On the other hand 'Mr. Syed Zaki Muhammad, learned counsel for the respondent No, 2 has urged as follows : -
(i) That since the right of an election petition is available, the petition cannot be sustained particularly in view of the fact that the petition involves an election dispute which is within the exclusive jurisdiction of an Election Tribunal under the relevant law.
(ii) That tine petitioner could not contest the election without obtaining a symbol from the respondent No,
1. It was also urged that the symbol of 'candle' was not allocated to the petitioner and, therefore, all votes bearing the Election Seal on symbol 'candle were rightly rejected by the respondent No, 1 as bad votes.
9. ' Mf. Muhammad Ali Shaikh in support of his contention has referred to the case of the Presiding Officer v. Saeeduddin Ansari and others (1), in which the facts were that one Saeeduddin Ansari and Lal Muhammad Bin Yousuf were rival candidates for the election of the Chairman of the Union Committee No, 4, Hyderabad City, to which the election was to be held on 18-1-1966. Altogether 16 ballot papers were issued but only 15 were cast. One ballot paper was found missing at the count.
10. The Presiding Officer out of these 15 votes rejected 4 on the ground that they did not adequately disclose the intention of the voters. The result after this was that 7 valid votes were found to have been cast in favour of Lal Muhammad Bin Yousuf and 4 in favour of Saeeduddin Ansari. The precise defect, for which the said 4 ballot papers were declared as invalid, was that the cross-marks on them were not put on the dotted line on which the name of the candidate was written but located some where in between the respective dotted lines on which the names of the rival candidates were written. The above result was challenged under Article 98 of the late Constitution of 1962 before the erstwhile High Court of West Pakistan, Karachi Bench. It was urged before the High Court by the contesting respondents that the petition was not competent but this plea was repelled by the High Court. The very plea was urged before the Hon'ble Supreme Court but the same was rejected. It may be advantageous to reproduce hereinbelow the observation of the Hon'ble Supreme Court on the point, which reads as under "Our Constitution embodies in Article 98 the general rule that an extraordinary remedy of the nature therein contemplated should not be granted unless the Court 'is satisfied that no other adequate remedy is provided by law'. But this is not the same thing as saying that the existence of any alternative mode of seeking some other kind of remedy is by itself sufficient. This is not a case of a competition between a common law right and a statutory right to which the principle enunciated by Willes, J. In the case of Wolverhampton New Water-Works Co. v. Hawkesford can be made applicable. Article 98 confers a constitutional right to a particular kind of remedy, namely, to obtain a direction upon a person performing functions in connection with the affairs of the State or a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do. Though this Article has been couched in very wide terms it may safely be assumed that it incorporates within it orders or directions in the nature of those which could have been issued under the prerogative writs of mandamus, prohibition and certiorari. So far as these writs are concerned the principle is undoubtedly universally accepted that it would not be in the exercise of sound judicial discretion to interfere where there is another 'adequate and (1)PLD 1967 SC 569 specific legal remedy competent to afford relief upon the. Same subject-matter'. It has often been said that a relief of this nature is a supplementary remedy which does not supersede legal remedies but rather supplies the want of such a remedy. But it is not any and every kind of remedy which will defeat this constitutional right. In order that the other remedy should be sufficient to warrant refusal to exercise this jurisdiction it is necesry, as observed by Ferris in his book on Extraordinary Legal Remedies (page 247) that the other remedy must be 'both specific and adequate' in the sense that it must be 'competent to afford relief upon the very subject-matter of the application and be equally convenient, beneficial and effective."
11. ' Mr. Muhammad Ali Shaikh in support of his contention has also referred to a case of Thakurdas v.
12. The Returning Officer (1) in which the facts were that nomination paper of Thakurdas was accepted by the Returning Officer. Raghumal filed appeal against the acceptance of Thakurdas' nomination paper. The appeal was accepted by order dated 2-9-1983. Thakurdas challenged the order before this Court, to which one of us (Ajmal Mian) was a member. It was urged before this Court by contesting respondent that the petition was not competent but this plea was repelled by this Court.
13. It may be advantageous to reproduce herein below the relevant observation of this Court, which reads as follows "The present case does not involve adjudication of disputed question of fact which would have been more eminently suitable for adjudication by an election tribunal and we would have declined to exercise writ jurisdiction if disputed question of fact would have been involved in the present case."
14. ' The learned counsel for the petitioner has also placed reliance on the case of Wahid Bux v.
15. Election Authority and 4 others (2) in which one of us (Ajmal Mian, J) was the member in which the similar plea was repelled. It is advantageous to reproduce the relevant observation of this Court which reads as follows:- "We are inclined to hold that generally a High Court will be reluctant to entertain a writ petition in an election matter which falls within the jurisdiction of an election petition. However, in a case in which no disputed question is involved and the point in issue is 'the interpretation of a provision of the relevant enactment or a statutory rule framed thereunder or when the impugned order passed by a Returning Officer is contrary to the legal proposition of law propounded by the superior Courts, a High Court may entertain a writ petition without forcing a petitioner first to press into service an election petition."
16. ' On the other hand Mr. Syed Zaki Muhammad, learned counsel for the respondent No, 2, has placed reliance on rules 65 to 67 of the Election Rules and has also referred to the case of Khan Shahzada v. Moulyi Fazal Nabi and 3 others (3) in which the Hon'ble Supreme Court while dismissing an appeal against the dismissal order of a writ petition by the Peshawar High Court, against an order of the Election Tribunal passed in connection with dispute of the election of the Chairman of Union Council Barun, (1)1984 CLC 1024 (2) 1984 CLC 1294
(3) 1983 SCM R 125 ' District Dir observed that an election petition can be resolved only by means of an election petition before the Election Tribunal. In our view, the above case is distinguishable, as in the above Supreme Court case two disputed ballot papers which were the subject-matter of the above case the cross marks were placed not in the column opposite to the names of the candidates. In the present case, the petitioner sought a declaration that the order of the respondent No, 1 refusing to treat him as a candidate to be held without lawful authority and of no legal effect. In the present case the grounds for setting aside the order of the respondent No, 1 are that the petitioner not only participated in the election held on 29-9-1983 but also secured highest number of votes. In an election petition, a defeated candidate can claim that the election of the returned candidate is void and that the petitioner or some other person has been duly elected or the election as a whole is void.
17. ' We are not inclined to sustain the above objection as to the maintainability of the above petition.
18. Firstly, no disputed question of fact is involved. The controversy centers around the construction of order dated 28-9-1983 of this Court in the Constitution Petition No, 677 of 1983 and the petitioner's participation in the election held on 29-9-1983 and securing highest number of votes. Secondly, the declaration of respondent No, 2 as successful candidate is without lawful authority. Thirdly, the respondent No, 1 refused to treat him as a candidate as such it is doubtful as to whether his election petition will be competent.
19. ' As regards the merits of the case, it may be pertinent to observe that we allowed Constitution Petition No, 677 of 1983 by an order dated 28-3-1983. It may be advantageous to reproduce the concluding para. Which reads as under :- "In our view, if respondent No, 2 wanted to take action under rule 19, he should have held further enquiry in the- matter, but the above report did not warrant the passing of the impugned order.
20. We, therefore, allow the above petition and declare the impugned order as being without lawful authority and of no legal effect. The respondents are restrained from acting upon the impugned order. The Returning Officer concerned shall allow the petitioner to participate in the election of Unit No, 14, Hyderabad Municipal Corporation, in case the symbol allocated to the petitioner has been printed on the ballot papers which are made available to the Returning Officer. The petition stands disposed of with no order as to costs."
21. ' We also passed a short order on 28-9-1983. It is advantageous to reproduce the said short order which reads as under "The office is directed to issue a direction to the Returning Officer to allow the petitioner for Unit No, 14 Hyderabad Municipal Corporation in case symbol allocated to ,the petitioner has been printed on the ballot papers of the Unit in question. , the above order may be given cover in hand."
22. ' It is the case of the petitioner that he served the order on the respondent No, 1 in the evening of 28-9-1983. It seems that the petitioner was informed that symbol "Apple" was allocated to respondent No, 3 and accordingly he was required to give in writing to the respondent No, 1 showing his choice for another symbol which he accordingly showed his choice as "Candle". The case of the petitioner is that the application was received by the respondent No, l and he was allowed to contest the election. The petitioner moved an application before the respondent No, 1 informing that Haji Nazir Ah.Med would be Chief Polling Agent of the petitioner. 1 t seems that on 29- 9-1983 the petitioner was allowed to participate in the election and his agents were allowed to sit on each and every booth of ladies and gents and after the polling was over the counting took place and in pursuance of count at the different polling stations the petitioner was not only declared elected having secured 1,296 votes as against 998 secured by the respondent No, 2 as per Annexures `G-1', '0-2', 'G-3', `0-4', `0-5', `G-6', `0-7', `0-8' and `G-9' annexed to the petition but his agents were allowed to put signatures on the result sheets. The unofficial results announced by the Presiding Officers were carried in the Daily newspapers "Jasarat", "Deanat", "Sind News", "Ibrat", "Nawa-i-Waqt" and "Basharat", showing the name of the petitioner being declared successful in the election Unit No, 14 H M C Hyderabad on 29-9-1983. The daily newspapers also carry photos of the petitioner and also photos of other successful candidates from different units. It indicates that he not only contested the election but was declared successful in an unofficial result.
23. ' The petitioner has stated in his petition that the respondent No, 1 has refused to consider the petitioner as a candidate at the time of the official count taken and has thereby violated the mandatory provisions of law and order of this Court. Rule 43 of the Election Rules provides that the Returning Officer shall declare by public notice the names of such contesting candidates as they have received the highest number of votes.
24. ' The respondent No, 1 in his counter-affidavit stated that petitioner filed nomination paper which was accepted by him. On 7-9-1983, the petitioner submitted application before him to request for allocation of symbol "Apple". He did not allocate the symbol as he could not do prior to 15-9-1983 which is the date fixed for allocating symbols. He also stated that on 14-9-1983, he received a telegram for reserving the symbol of "Apple". He did not consider the application and telegram as the petitioner stood disqualified It is the case of the respondent No, 1 that on 28-9-1983 the petitioner appeared before him at about 9-00 p.m. And submitted application for allocation of symbol "Candle" to him. In para. 9 of the counter-affidavit, he stated that he did not know which election symbols were printed on the ballot papers and whether they include "Shama" or not. It is also stated that the application for allocation of "Shama" was rejected by him and the petitioner participated in election by his personal announcement that his symbol was "Shama". He also denied that the application for the appointment of Chief Polling Agent was not moved before him and he did not pass any order thereon.
25. ' There is no doubt that we declared order dated 5-9-1983 of the Commissioner Hyderabad as without lawful authority by our order dated 28-9-1983 and directed the Returning Officer to allow the petitioner to participate in the election of Unit No, 14 in case the symbol allocated to the petitioner had been printed on the ballot papers. The respondent No, I stated that symbol "Apple" was allocated to other contesting candidate. It is the case of the petitioner that symbol "Shama" was not allocated to any other candidate. The respondent did not deny that it was not printed on the ballot paper and did not deny that the symbol was allocated to other contesting candidate.
26. ' Mr. Syed Zaki Muhammad the learned counsel for the respondent No, 2 has submitted that symbol was not allocated to the petitioner and he contested the election on his own accord.
27. ' As regards the allocation of symbol Shama" to petitioner, the case of the petitioner is that symbol "Snama" was allocated to him. On the other hand the respondent No, 1 denied this statement in his counter-affidavit. He also stated that he rejected the application for allocation of symbol. In these circumstances we are of the view that techonically the symbol was not allocated and the petitioner contested the election techonically without the symbol.
28. ' In the instant case the voters were not aware about the non-allocation of symbol. They cannot be disfranchised for no fault on their part. Votes given to them without notice of the above disqualification. As the petitioner had major it votes; the minority votes secured by respondent No, 2 cannot be declared elected.
29. ' It would be noticed that the main attack was in respect of allocation of symbol "Shama" and filing of the application for appointment of Chief Polling Agent before the respondent No, 1.
30. ' Rule 26 authorises a contesting candidate to appoint chief polling agent and when an election agent is appointed, the contesting candidate shall send a notice in writing of the appointment containing the name of the polling agent. Annexure 'F' clearly shows that Haji Nazir Ahmed was appointed as the Chief Polling Agent by the petitioner and he also acted as Chief Polling Agent of the petitioner. The requirement of rule 26 is appointing of polling agent and intimation to the Returning Officer. Rule 2 does not provide that necessary order has to be passed on the application by the Returning Officer. This being the true legal position that Haji Nazir Ahmed did act as petitioner's Chief agent.
31. Mr. Muhammad Ali Shaikh the learned counsel for the petitioner has contended that rule 41 (4) of the Election Rules contemplates breaches of duty by the Returning Officer and the improper refusal of a vote by the Presiding Officers at polling stations can be considered to be a breach of sub-rule
(4) of rule 41. Under sub-rule (4) of rule 41, the Returnin Officer may reject any vote on any of the grounds mentioned in sub-rule (4) of rule 40. Sub-rule (4) of rule 40 provides that the Presiding Officer shall open ballot boxes and count the entire lot of ballot papers taken out therefrom. The Presiding Officer shall open the packet labelled "Challenged ballot papers" and include the ballot papers therein in the C count. He shall count the votes cast in favoar of each contesting candidate excluding from the count the ballot papers which (i) bear no official marks, (ii) any writing or any mark other than the mark, (iii) no cross or tick mark indicating the contesting candidate for whom the elector elector has voted. We have no doubt that Returning Officer's conduct has voted, or (iv) any mark from which it is not clear for whom then not allowing 1296 votes amounts to improper refusal of votes within the meaning of sub-rule (4) of rule 41.
32. ' Mr. Syed Zaki Muhammad the learned counsel for the :respondent No, 2 has contended that an improper refusal of votes contemplated by sub-rule (4) of rule 40 or sub-rule (4) of rule 41 must mean an improper refusal of valid votes, their refusal cannot be regarded as importer refusal of votes affecting the result of the election.
33. We are of the view that from the time when the elector marks his vote on the ballot paper until the vote is counted by the Returning Officer the voting is one continuous process. An improper refusal of a vote affects the election. It prevents the vote from becoming a valid vote and from its being counted as a valid vote in favour of the candidate in whose favour the vote was given. It also affects the election of the returned candidate, because if the votes were received, he might not have been returned at all. We find that there was improper rejection of 1296 votes in favour of the petitioner. Had the 1296 votes cast in favour of the petitioner been received, the result of the election would have been otherwise.
34. ' It was submitted to us on behalf of respondent No, 2 that in the circumstances of this case, he, (the respondent No, 2) with the next highest number of votes to the petitioner and was in law entitled to be declared to have been duly elected and was rightly elected by the respondent No, 1.
35. The petitioner, on the contrary, submitted that the circumstances of the case did not in law justify his election. We were referred to a number of cases on this question Gosling v. Mirza Barkat Ali and 2 others (1), Rashid Ahmed Rahmani v. Mirza Barkat All and 2 others (2), Syed Saeed Hassan v.
36. Pyarali Altana (3) and Lal Muhammad v. Muhammad Usman and others (4).
37. ' It is not necessary to give facts in detail of Gosling v. Vely except to quote a passage from the judgment of Lord Denman C. J:- "Where the disqualification depends upon a fact which may be unknown to the elector, he is entitled to notice; for, without that, the inference of assent could not be fairly drawn, nor would the consequence as to the vote be just. But, if the disqualification be of a sort whereof notice is to be presumed, not need expressly be given; no one can doubt that, if an elector would nominate and vote only for a woman to fill the office of mayor or burgess in parliament, his vote would be thrown away is there the fact would be notorious; and every man would be presumed to know the law upon that fact."
38. ' The above passage was approved by the Hon'ble Supreme Court in the case of Lal Muhammad v.
39. Muhammad Usman and others.
40. ' We are of the view that technically symbol was not allocated to the petitioner but it was made known to the electors of Unit No, 14 before they cast their votes that the symbol "Shama" was duly allocated to the petitioner and it was claimed 1:). The respondent No, 2 that the symbol was not allocated to the petitioner (a claim which the petitioner disputed) and that the respondent No, 1 refused to treat him as a candidate.
41. Accordingly, applying the decisions of the Hon'ble Supreme Court in the cases of Rashid Ahmed Rehmani v. Mirza Barkat Ali and 2 others
(1) (1847) 7 Q B 406 (2) PLD 1968 SC 301.
(3) PLD 1974 Note 73 at p. 115 (4) 1975 SCM R 409 and Lal Muhammad v. Muhammad Usman and others by which we are bound, and having reached the decision that it appears that technically no symbol was allocated to the petitioner. In the instant case the voters cannot be disfranchised for no fault on their part. Votes were given by them without) notice about technically non allocation of symbol to the petitioner. As the petitioner had majority votes ; respondent No, 2 who had secured less votes, should not have been declared elected.
42. ' For the reasons stated above we declare the election of the above unit as being withoul lawful authority and of no legal effect. We also order fresh election.
43. ' The petition is allowed in the above terms with no order as to costs.