' The petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, to set aside the order passed on 10th October, 1984 by the Election Tribunal. Poonch, whereby election of Khadim Hussain Khan, petitioner, the returned candidate as Member of the District Council, was declared void as the result of the election was materially affected due to non- compliance with the provisions of the Azad Jammu and Kashmir Local Government Election Rules.
1983 (hereinafter to be referred as election rules).
2. Khadim Hnssain Khan, petitioner and be Ak bar Illtssain Khan, respondent No, 1, were the candidates in the election of the District Council, Poonch. They contested the election from Banjees Union Council, the single member constituency for the District Council. The Government notified and published a scheme for the election of the District Council through a Notification dated 1st October, 1983 whereby Union Council Banjosa was divided into 4 wards, namely, Boojey.Ne-Gali, Kotehri Maira and Seam. Kotehri, Waed No, 2, was comprised of the villages Kotehri, Mekran and Manjan Gran, whereas Maira, Ward No, 3, was constituted by village Miral Gala, Maira. Under the polling scheme, issued by the Collector/Returning Officer, under the approval of the Election Commissioner, Boys High School Banjosa was declared as the polling station for the electors, male and female, of ward Motehri and High School, Maira was declared as polling station for Ward Maira.
The number of voters in Ward Motehri, male and female, was 1070, whereas the number of voters in Ward Maira, male and female, was 384. ,On conclusion of election Khadim Hussain was declared successful. Dr. Akbar Hussain Khan, respondent No, 1, challenged the election of the petitioner through an election petition, inter alia, on the ground of violation of election rules on account of alteration in the polling scheme relating to polling stations of Ward Kotehri and Ward Maira. It was alleged that in the notified polling scheme, Boys High School Banjosa and High School Maira were declared as the polling stations for Wards Kotehri and Maira but the elections were not held on these polling stations as, instead of declared polling stations, polling was held at High School Miral Sala and Girls Primary School Maira. According to the objector, substitution of the polling stations materially affected the result of the election, as such the election was void. The Election Tribunal, Poonch, accepted the objection raised by Dr. Akbar Hussain Khan and declared the election of Khadim Hussain, petitioner, void, on account of alteration in the polling stations, without lawful authority, with the direction that fresh polls may be held in the light of the notified polling scheme.
3. It is accepted that Banjosa Union Council was divided into 4 wards. Villages Kotehri, Makran and Manjan Gran were listed in Ward Kotehri, whereas village Miral Gala Maira was listed in Ward Maira.
Likewise, according to the notified and published polling scheme, the electors of villages Kotehri, Makran and Manjan Gran, were to poll their votes at Boys High School Banjosa polling station.
Whereas the electors of village Miral Gala Maira listed in Ward Maira were to poll their votes at the polling station High School Maira. It is also admitted that the polling was not held at Boys High School Banjosa and High School Maira, the declared polling stations, as under the changed programmes, the electors listed in Ward Kotehri, polled their votes at polling station Boya High School Miral Gala and the electors of Maira Ward, polled their votes at Polling Station Girls Primary School, Maira.
4. The controversy raised in the election petition was to the effect that the electors of Ward Kotehri assembled to poll their votes at Polling Station Boys High School Banjosa but on account of absence of polling staff, they could not poll their votes. The late change in the polling scheme deprived the electors to cast their votes in favour of the respondent who, under the circumstances, felt constrained to boycott the elections as despite his protest and request to the Deputy Commissioner and other concerned authorities, the election was not held at the declared polling stations. The claim of Dr. Akbar Hussain Khan was repudiated by Khadim Hussain, petitioner, who supported the changed scheme of the polling stations and averred that the polling was held in a legal fashion, as such the result of the election was valid.
5. Mr. Sayab Khalid, the learned counsel for the petitioner, contended that the alleged alteration in the polling scheme was not, in fact, a change in the polling stations but mere correction of the polling stations. According to him, this was not a violation of the rules. The counter-contention was that the Collector/Returning Officer was incompetent to make alteration in the polling stations, after the publication of notified list of polling stations by the Election Commissioner, without the prior approval of the Election Commissioner. In the instant case, the alteration made by the Collector/Returning Officer, was obviously without previous permission of the Election Commissioner, as such, it was a clear violation of the mandatory rule. The effect of violation, obviously, resulted in the defeat of the respondent.
6. The scheme of constitution of Local Government is contained in Azad Jammu and Kashmir Local Government Ordinance, 1983. Section 19 of the Ordinance postulates that every person whose name is entered in the electoral rolls, and no person whose name is not so entered, shall be entitled to cast a vote at an election of a local council. Thus, the local councils are constituted by popular votes of the residents whose names are entered in the electoral rolls, within the territorial limits of each local council. Section 82 of the Ordinance, empowers the Government to make rules to carry out the purposes of the Ordinance. Subsection (2) of this section further provided that the rules framed by the Government, may provide for all or any of the matters enumerated in the Seventh Schedule of the Ordinance and all matters incidental, consequential and supplemental thereto. The Seventh Schedule, on the other hand, listed 24 matters to which rules framed under the Ordinance were made applicable. Among these matters, inter alio, matter No, 1 pertains to the organization and conduct of the elections and the matters connected therewith or incidental thereto, including by-elections and corrupt or illegal practices and other election offences and penalties therefrom, and the submission, trial and disposal of election petitions.
7. The relevant rule applicable to the proposition in hand is rule 10 and rules 60 and 62. Rule 10 postulated the polling station scheme. Under sub-rule (1), the Collector/Returning Officer was authorised to furnish a list of proposed polling stations in each ward for the purpose of election of member for that ward. Under sub-rule (2), the Election Commissioner was authorised to make alterations in the list, if necessary, and to intimate the same to the Collector/Returning Officer for its incorporation in the list of the polling stations, and for its publication as the final list. Sub-rule (5) postulated that after the publication of the final list of the polling stations, no alteration shall be made therein by the Collector/Returning Officer, without prior approval of the Election Commissioner/Authority.
8.Rule 60 pertains to the power and jurisdiction of the Election Tribunal. It postulated that the Election Tribunal shall declare an election to be void if it was satisfied, among others, that failure of any person to comply with the provisions of the Ordinance or the rules made thereunder, has materially affected the results of the election. Rule 62 next, contemplated that at the conclusion of the trial of an election, the Election tribunal shall make an order, inter alias, declaring the election of the returned candidate to be void.
9. In the present case, the primary allegation is that the Collector was incompetent to make alteration in the polling stations, after the publication of the final list, without prior approval of the Election Commissioner. According to the respondent, polling stations in both the wards in question, were changed at eleventh hour, without authority and the action of alteration of polling stations, has materially affected the results, as such, the election was held in complete departure to the provisions of the rules. We have already noticed the stands taken by the parties and the finding recorded by the Election Tribunal, whereby parties are in agreement that the election was actually held at High School Miral Gala Girls Primary School, Maira, polling stations. The factual aspect of the case being undisputed, only the legal phase of the proposition is to be settled by this Court.
10. According to the petitioner, the alleged order of the Collector/ Returning Officer, does not tantamount to alteration of the polling stations, as the same was clarification of the polling stations. The contention is untenable as under the published polling scheme, Boys High School, Banjosa was declared the polling station for the electors of Ward Kotehri. At this stage, it is not fair to go into the evidence appended with the petition which was not placed before the Election Tribunal, to settle the controversy. This is more so as the contention of the respondent is supported, in addition to the finding of the Election Tribunal, by the Azad Jammu and Kashmir Board of Intermediate and Secondary Education result Gazette for Spring examination, 1984, where at page 12 of the Gazette, the name of the High School Banjosa was entered, "High School Banjosa Poonch" and not Tafheemul Allume High School Banjosa, as suggested by the learned counsel for the petitioner. The next is the High School Miral Gala, Poonch from where only 2 students appeared who unfortunately failed in the examination. Thus, in presence of the finding of the Election Tribunal, coupled with the result Gazette of the Board, I am not convinced to believe that the order of change of the polling stations, was a mere clarification and not an alteration in the polling scheme.
11. It is noticed that sub-rule (5) of rule 10, restricted the powers of the Collector/Returning Officer to change the scheme of the polling stations, after the publication of final list. However, the Legislature kept the door open with the condition that such alteration, if made, shall only be made with the prior approval of the Election Commissioner. The order of alteration of the polling stations is reproduced as under :- {{URDU TEXT}} A perusal of the order reflects that it was recorded in agreement to the proposal of the District Election Officer, Poonch but without prior approval of the Election Commissioner. The suggestion that the approval of the Election Commissioner was obtained prior to the issuance of the order, cannot be accepted in absence of its positive proof from the language of the order itself or independent evidence. The order by itself provides no indication of the prior approval of the Election Commissioner. It is equally accepted that there is no independent evidence to prove that prior approval was secured from the Election Commissioner.
12. A suggestion was made during the arguments that the onus of proof of failure to get approval from the Election Commissioner was on the petitioner before the Election Tribunal and in absence of proof of such failure, it shall be presumed that the approval was accorded. The suggestion does not sound well, as a party is not supposed to prove an issue in negative. The onus on the petitioner before the Election Tribunal was to prove the alteration in the polling scheme. Once the onus was discharged by him, it shifted on the opposite party to prove that such an alteration was effected under the prior approval of the Election Commissioner. As there is no evidence to show that the alteration was effected' under the prior approval of the Election Commissioner, it cannot be held that the order was passed within the framework of sub-rule (5) of rule 10.
13. Next, it was contended that the provisions of rule 10 being directory, its violation, if any, is not an illegality, sufficient to declare the election void. Reference was made to Inayatullah's case, recently decided by the Supreme Court of Azad Jammu and Kashmir, on 16th January, 1985.
14. It is well-accepted that the intention of the Legislature is discovered from the words used in a statute. The rule of interpretation of statute is that the words of the statute are considered first and then the nature, context, form and object of the statute, as well as consequence of its construction, are kept in view. It is undented that ordinarily, the words "shall" and "must" are mandatory and the word, "may" is directory. Therefore, the intention of the Legislature is to be ascertained by reference to the use of the words "shall" and "must" and "may", in context to the form and nature of this statute. In Crawford Statutory Construction, at' page 515, it is provided as under :- "And, of course, in case of doubt, regarding the nature of the statute's requirements, it is necessary for the Court to resort to the various rules pertaining to the construction of statutes, since the determination cannot be made to depend upon mere form alone. The words of the statute, however, must first be considered, and then the nature, context, and object of the statute, as well as the consequences of the various constructions. In other words, the intention of the Legislature must be ascertained and given effect, even though mandatory or directory words are thereby given their opposite meanings, although the Court should not depart from the literal meaning of such words, unless the intention of the Legislature to give them a different meaning clearly appears."
' Again, at page 519, while analysing the mandatory and directly or permissive words used in the statute, it is contained :- "Ordinarily, the words 'shall' and 'must' are mandatory and the word 'may' is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for the Courts to resort to construction in order to discover the real intention of the Legislature. Nevertheless, it will always be presumed by the Court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the Legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the Legislature intended the words 'shall' and 'must' to be directory, they should be given that meaning. Similarly, under the same circumstances, the word 'may' should be given a mandatory meaning, and especially where the statute concerns the rights and interests of the public, or where third persons have a claim de jure that a power shall be exercised or whenever something is directed to be done for the sake of justice or the public good, or is necessary to sustain the statute's constitutionality. '
15. In view of the aforesaid rule of interpretation, it is noticed that the Legislature used the word "shall" in sub-rule (5) by imposing prohibition on the power of the Collector/Returning Officer to make alteration in the polling scheme after the publication of the final list, subject to, however, prior approval of the Election Commissioner. Thus, the language of sub-rule (5) is the pointer of the fact that the nature of the rule is not purely ;-"rectory, as suggested by the learned counsel for the petitioner. This is, however, further subject to test of the provisions of rule 60 (c) which empowers the Election Tribunal to declare an election void if it was satisfied that failure of any person to comply with the provisions of the Ordinance or rules, materially affected the results of the election.
Thus, the conclusion is to be drawn in view of the provisions of rule 60(c) read alongwith the provisions of rule 10(5).
16. It is evident from the testimony of Safdar Khan, Tehsildar who was the duty Magistrate on the election day, at the polling stations, who disclosed that when he reached Boys High School, Banjosa, he found 500 electors present outside the School, waiting 'for the polling staff, to cast their votes. Some other witnesses of the petitioner before the Election Tribunal, gave the number of such electors as 600 to 700. Be as it may, the fact remains that the number of electors in Wards Kotehri and Maira being 1070 and 384, is tentatively larger than the number of the voters of rest of the Wards of the Council. We are not in possession of figures as to how many electors of these Wards were able to cast their votes as the result-sheet is not available on the record. Therefore, it is not desirable to go in detail to specify the actual number of votes polled at the changed .Polling stations. The fact remains that according to the finding of the Election Tribunal, resting on the evidence of the parties, a large number of electors who assembled outside the polling stations, Boys High School, Banjosa, were not shown to have participated in the election.
17. In writ jurisdiction, this Court is not supposed to act as an appellate Court, but only to examine as to whether the authority or jurisdiction vested in the Election Tribunal was properly exercised within the legal framework or not. The fact that the Election Tribunal appreciated the evidence one way or the other, to reach the conclusion, was not a serious business of this Court to look into. This view finds support from the dictum of the Supreme Court of Pakistan reported in PLD 1973 SC 226 wherein it was observed as under :- "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has been often said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be nonexistent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction.
' Where, therefore, she Claims Officer had misinterpreted and misapplied the circulars of the Claims Commissioner, Pakistan (directing Claims Officers to treat claims for Zamindari and tenancy interests in claims filed under Schedule V leaving out jagirs and muafis) and treated even jagirs and muafis as claims in respect of properties under Schedule V, it was held that the Claims Officer, no doubt, decided wrongly but not without jurisdiction."
' The view of the Supreme Court of Pakistan was equally accepted in Mir Alam's case by the learned Judges of the Supreme Court of Azad Jammu and Kashmir PLD 1982 SC (A J & K) 107, where it was observed as under "Another point which also requires consideration is, "had the High Court jurisdiction to entertain the writ petition of the respondent ?" Whenever an order is passed by an authority or Tribunal having exclusive jurisdiction, is passed in excess of the jurisdiction, the High Court, no doubt, will interfere.
But distinction must always be made between an order passed without jurisdiction and an order passed wrongly. The distinction some time is very subtle one. To consider that the constitutional provision was designed to empower the High Court to interfere with the decisions of a Court or Tribunal of inferior jurisdiction merely because in its opinion the decision is wrong, will be a wrong approach and it ought to be viewed with disapproval. In that case it would make the High Court's jurisdiction in distinguishable from that exercisable in full-fledged appeal, which is not the intention of the Constitution-makers. When there is jurisdiction to decide a particular matter, then there is jurisdiction to decide it rightly or wrongly. May, it be a question of fact or even of law."
' This view was relied upon by this Court in Karam Hussain's case (1). The Supreme Court of Azad Jammu and Kashmir in Karam Hussain's case (2),
(1) 1984 CLC 3222 (2) PLD 1984 SC (A J & K) 129 equally observed that the Election Tribunal could declare election of a returned candidate void or election as a whole to be void if it was satisfied that the result. Of election in respect of the returned candidate or as a whole, has been materially affected, by reason of failure of any person to comply with or contravention of any provision of law. In the instant case, it is noticed that on the basis of the evidence of the parties, the Election Tribunal was satisfied that the alteration of the polling stations by the Collector/Returning Officer, without prior approval of the Election Commissioner, after the publication of the final list, has materially affected the results of the election, by depriving a large number of the electors, assembled outside the polling stations listed in the published list, to poll their votes. Nevertheless, the satisfaction of the Election Tribunal is to rest on tangible evidence and the finding should not be arbitrary. This aspect of the impugned order was examined and it was discovered that the satisfaction of the Election Tribunal to the effect that the election was materially affected due to change of polling scheme, was based on testimony of the parties.
17. Therefore, there is no force in the objection raised by the learned counsel for the petitioner. The petition is dismissed with costs.