' AIMAL MIAN, J.-The petitioner through this petition has prayed for the following reliefs : "That it is, therefore, prayed on behalf of the petitioner that this Hon'ble Court will be pleased to pass the following orders : "(1) Declaring that the petitioner who has secured six votes as against five votes by the respondent No, 3 is liable to be elected as Chairman of the Mir Wah Town Committee.
(2) Directing that one ballot-paper which has been declared invalid by the respondent No, 2 be counted in favour of the petitioner as the voter has clearly indicated his intention on the ballot- paper for casting the vote in favour of the petitioner.
(3) Directing that the respondent No, 3 be restrained from assumption of the office of the Chairman of the Mir Wah Town Committee.
(4) That the cost of the petition be horned by the respondents and any other relief this Honourable Court deems fit and proper."
2. The brief facts leading to the filing of the above petition are that petitioner and respondent No, 3 are members of Mir Wah Town Committee. (hereinafter referred to as the Town Committee). In pursuance of the Sind Councils (Assumption of Office) Rules, 1979 (hereinafter referred to as the Rules), a meeting of the Town Committee was fixed on 5th November, 1983 in the office of respondent No, 2 i,e, at his Mirpurkhas Office, being the Presiding Officer. The petitioner along with 10 others elected members of the Town Committee attended the meeting on the above date at 9-30 a.m.
' Respondent No, 2 called upon the members to elect the Chairman and Vice-Chairman of the Town Committee and invited nomination papers. The petitioner and respondent No, 3 filed nomination papers for the office of Chairman, which after scrutiny were found in order and as none of the above two contesting candidates withdrew the candidature, respondent No, 2 called upon the members to cast their votes. In all 11 members cast their votes. The petitioner obtained six votes, whereas respondent No, 3 secured 5 votes. It is the case of the petitioner that according to rule 9 of the Rules, the petitioner who had secured highest number of votes should have been declared by respondent No, 2 to have been elected as the Chairman but the same was not done; instead of respondent No, 2 followed a novel procedure which was not applicable to the election of the Chairman and the Vice-Chairman and had committed an error by applying the provision of rule 35 of the Sind Local Councils (Election) Rules, 1979 and declared one vote to be invalid on the ground that the cross-mark- was not put on the ballot-paper within the space for marking the cross as specified by rule 35(6)(b). It is also the case of the petitioner that after rejecting petitioner's above one vote, respondent No, 2 treated the case of the election to the Chairman of the Town Committee to be under the above Sind Local Councils (Election) Rules, 1979 and applied rule 42 thereof and drew a lot in terms thereof and declared respondent No, 3 as elected. The petitioner made representation to respondent No, 2 for recount of the votes and the review of the result by his application, dated 8-11-1983 whereon respondent No, 2 passed the following order : "The entire material including the invalid ballot-paper sealed in envelops, has been sent to the Deputy Commissioner, Tharparkar as per rule 46 read with rule 59 of the SLC (Elections) Rules, 1979, vide this office Letter No, 1879, dated 6-11-1983.
' As regards the request for reviewing the results, neither I am competent to review the same, nor there is anything wrong with the results which may require review. Request rejected.
(Sd.) S. D. M. Mirpurkhas 8-11-1983."
Dated 8th Novembek, 1983.
After that the petitioner filed the present petition on 13-11-1983. It is an admitted position that no election petition was competent when the above petition was filed. The Provincial Government through a Notification, dated 28-11-1983 gazetted on 23-11-1983 framed rule 12-A which reads as follows : "No, PEAS/2256/83. In exercise of the powers conferred by section of th' Sind Local Government Ordinance, 1979 the Government of Sind are pleased to make the following amendment in the Sind Councils Assumption of Office Rules, 1979 : ' AMENDMENT After rule 12, the following new rule shall be inserted :- "12-A. The provisions relating to election disputes as contained in rules 65 to 76 of the Sind Local Councils (Election) Rules, 1979, shall mutatis mutandis apply to the elections under these rules.
Manzoorul Hasan, ' Secretary to Government of Sind."
' After framing of the above rule Mr. Mansoorul Arfin learned counsel for the respondent No, 3 had raised a preliminary objection, namely, that the petitioner has adequate alternate remedy in the form of an election petition before the Election Tribunal in terms of rules 65 to 76 of the Sind Local Councils (Election) Rules, 1979.
' We have heard the learned counsel for the parties on the maintainability of the petition as well as on merits.
3. (a) Mr. Muhammad All Shaikh, learned counsel for the petitioner in support of the petition has urged as follows :
(i) That since admittedly the petitioner had no adequate alternate remedy at the time of filing of the above petition and as the impugned action is wantonly illegal, this Court will not non-suit the petitioner merely on the ground that a right of an election petition has been provided after the filing of the petition. It was also urged h" him that in context with the facts of the present case the right of an election petition provided is not an adequate alternate remedy.
(ii) That since admittedly cross was put in the column provided for the petitioner, respondent No, 2 could not have rejected one ballot-paper in favour of the petitioner on the ground that the same was not marked at the place reserved for marking, in view of the various pronouncements of the superior Courts.
(b) On the other hand Mr. Mansoorul Arfin learned counsel for respondent No, 3 has contended 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 the petitioner and other members of the Town Committee were explained by respondent No, 2 the manner and the place of marking of the cross on the ballot-paper and that it was made clear that if the cross would not be placed at the place reserved for it the vote would be rejected and that factually the petitioner did not raise any objection to the rejection.
' Mr. Sattar Shaikh, Additional Advocate-General adopted the petitioner's learned counsel's above arguments.
4. Mr. Muhammad Ali Shaikh in support of his contention has referred to the case of The Presiding Officer v. Sadruddin Ansari and another (1), in which the facts were that one Sadruddin Ansari and Lal Muhammad Bin Yousuf were rival candidates for the election of the Chairmanship of 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 time of counting of the votes. The Presiding Officer out of 15 votes rejected 4 on the ground that they did not adequately disclose the intention of the voters. He found the seven votes were in favour of Lal Muhammad Bin Yousuf and four in favour of Sadruddin Ansari. Four votes which were rejected were in favour of Sadruddin Ansari. The defect in the above four votes which were held to be invalid was that the cross-marks on them were not put precisely on the dotted line on which the name of the candidate was written but were placed somewhere in between the respective dotted lines on which the names of the rival candidates were written. The above result was challenged by Sadruddin Ansari through a constitutional petition under Article 98 of the late Constitution of 1962 before the erstwhile High Court of West Pakistan, Karachi Bench. It may be stated that rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, provided election petition, which remedy was not availed of by the petitioner in the said petition for the reason that under the above rule the reliefs which the petitioner was seeking could not have been granted. After filing of the aforesaid writ petition aforesaid rule 7 was substituted by a new rule through a notification, dated 26-2-1966, the effect of which was to enlarge the scope of granting relief in an election petition.
' It was 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 Honourable Supreme Court but the same was rejected. It may be advantageous to reproduce herein below the relevant observation of the Supreme Court on the point, which reads as follows : "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 is self 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 Wolver-hampton New Water-Works Co. v. Hawkesford (1859)
6 C B S) 336 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
(1) PLD 1967 SC 569 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 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 necessary, 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.'
' Applying this test in the present case, it is clear that on the date that the petition under Article 98 was filed none of the remedies sought in the petition could have been made available to the petitioner therein by any other remedy. An election petition was then only maintainable under the old rule 7 for having an election declared void. Thus, at any rate, up to the date on which the petition under Article 98 was admitted for regular hearing there was no bar to its maintainability, for, there was no other specific or adequate remedy available which would have given relief to the respondent No, 1 upon the subject-matter of his application in any equally convenient, beneficial or effective manner."
5. On the other hand Mr. Mansoorul Arfin, learned counsel for respondent No, 3 has referred to the case of Khan Shahzada v. Maulvi Fazal Rabi and 3 others (1), in which the Honourable 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 Chairman of Union Council Barwa, District Dir observed that an election dispute can be resolved only by means of an election petition before the Election Tribunal. In our view, the above case is distinguishable for the simple reason that no right of an election petition was available to the present petitioner when the above petition was filed. Furthermore, the facts of the above Supreme Court case are distinguishable inasmuch as that in the two disputed ballot-papers which were the subject-matter of the above Supreme Court case the cross marks were placed not in the column opposite to the names of the candidates but in the columns reserved at serial number 3 though there was no third candidate. In the present case the cross has been placed in the column of the petitioner but not at the place reserved for placing the mark.
6. In this connection, it may be pertinent to refer the following two decisions of the Division Bench of this Court, to which one of us (Ajmal Mian, J.) was a member and in one of them the above judgment of the
(1) 1983 SCM R 125 ' Hon'ble Supreme. Court relied upon by Mr. Mansoorul Arfin has been referred to :- "(i) Wahid Bux v. Election Authority, Province of Sind. Through Deputy Commissioner, Sukkur and 4 others 1984 CLC 1294, in which certain ballot-papers were rejected on the ground that they did not contain initial of the Presiding Officer though had official mark/stamp. A Division Bench of this Court while sitting at Sukkur observed as follows: on the question of maintainability of the petition pertaining to election matter : ' It will be pertinent to take up the question of maintainability of the above petition.
' In this regard it may be observed that Mr. Sarfaraz Ahmad, the learned A. A.-G. Has referred to the case of Khan Shehzada v. Moulvi Fazal Rabi and 3 others 1983 SCMR 125, in which the facts were that the appellant was declared as the elected Chairman of the Union Council Barwah, District Dir, by the Presiding Officer. Respondent No, 1 filed an election petition. The Election Tribunal after recounting the votes declared respondent No, 1 as successful in place of the appellant. The appellant being aggrieved by the above order filed a writ petition in the Peshawar High Court, which was dismissed by a learned Single Judge. Against the above orders leave to appeal was granted by the Hon'ble Supreme Court upon the appellant's petition for leave. In the appeal it was urged by the Advocate for the appellant before the Hon'ble Supreme Court that the Election Tribunal had no jurisdiction to recount the votes. The above contention was repelled and it was observed that the question of validity of ballot-papers raised by the appellant lay within the ambit of the jurisdiction of the Election Tribunal exclusively and stands finally disposed of. The above observations are to be viewed in context with the facts of the aforesaid Supreme Court case. It may be stated that the Hon'ble Supreme Court has not laid down that a High Court even in a fit case cannot entertain a writ petition. 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 Tribunal provided under the relevant law, as the proper remedy is 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.
(ii) Thakurdas v. The Returning Officer and 3 others 1984 CLC 1024. In the above case the facts were that the Returning Officer rejected the nomination papers of the petitioner on the ground of wrong parentage in the printed copy of electoral roll though in the original manuscript the correct parentage of the petitioner was given and a certificate to that effect was produced from the Assistant Registration Officer before the Returning Officer. The petitioner filed a Constitutional petition in this Court which was heard by a Division Bench at Sukkur. In the above petition it was also contended that the petition was not competent. The above contention was repelled by observing as follows : ' Reverting to the second contention of respondent No, 3 it may be observed that this petition was filed prior to the date of election and prior to the notification declaring respondent No, 3 as elected.
Since the petition has been allowed to be amended and as we are inclined to take the view that the appellate authority was not justified to reject petitioner's nomination paper on a ground which was not sustainable in law, it would not be just and proper to dismiss the above petition merely on the ground that after the filing of the above petition, respondent No, 3 has been declared as elected unopposed. 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."
7. For more than one reason, we are not inclined to sustain the above objection as to the maintainability of the above petition. Firstly, the petition was filed at the time when there was no right of an election petition available to the petitioner, and, therefore, the petitioner, had no alternate adequate remedy and, hence, the petition was competently filed. It may be pointed out that in the above-cited Supreme Court case of Sadruddin Ansari, the right of an election petition was available to the petitioner under rule 7 of the relevant rules but its scope was limited and during the pendency of the petition scope of above rule 7 was extended by substituting above rule 7, which amendment was considered by the Supreme Court as procedural so as to make it applicable to the pending case. But the instant case is on a higher pedestal as a right to file an election petition, which is a substantive law and not procedural, has been conferred during the pendency of the petition as hereinabove pointed out. Secondly, no disputed question of fact is involved. The controversy centers around the construction of the rejected ballot-paper. Thirdly, there seems to be unanimity of view among the superior Courts on the point in issue.
8. As regards the merits of the case, it may be pertinent to observe that a Division Bench of this Court by an order dated 2841-1983 had sent for the rejected ballot-paper. It may be advantageous to reproduce the same with the order passed thereon by respondent No, 2.
' BALLOT-PAPER FOR THE ELECTION OF CHAIRMAN, TOWN COMMITTEE, MIRWAH {{TABLE}} Name of the Candidate Space for marking (x) ,5z x {{TABLE}}
' As per rule 35(6)(b) of the Sind Local Councils (Election) Rules, 1969, the cross or tick mark on the ballot-paper is to be put at any place within the space containing the name and symbol of the contesting candidate. On the present ballot-paper, the cross has been put neither in the column of candidate's name nor in the column of space for marking cross.
' The ballot-paper is shown to each member. Nobody objects to the invalidity of the vote. The vote is invalid and excluded from the count.
(Sd.) 5-11-1983.
Presiding Officer T. C. Mirah."
A perusal of the above-quoted ballot-paper indicates that the voter instead of placing cross mark in the column reserved for marking, has placed the same in the column of serial number but against the petitioner. There cannot be two opinions that the voter intended to cast his vote in favour of the petitioner as the cross has been placed in the middle of the column of serial number reserved for the petitioner. In order to highlight the above point we are enclosing herewith a photostat copy of the original ballot-paper as Appendix 'A' as a part of this judgment.
' It may be observed that respondent No, 2 in his order, dated 5-11-1983 has rejected the above ballot-paper by applying rule 35 (6)(b) of the Sind Local Councils (Election) Rules, 1979. It has been contended by Mr. Muhammad All Shaikh that the above rule was not made applicable to an election for the Chairman of a Town Committee by virtue of the above-quoted rule 12-A framed on 22-11-1983. On the other hand Mr. Mansoor-ul-Arfin referred to rule 8 of the Rules. It may be stated that the above rule provides the manner of casting vote, it provides that if there is only one candidate for any office such candidate shall be declared by the Presiding Officer to have been elected to that office but where there are more candidates than one, the Presiding Officer shall proceed to take a poll by secret ballot in such manner as he may deem fit. It was contended by Mr. Mansoor-ul Arfin learned counsel for respondent No, 3 that by virtue of the above rule respondent No, 2 was competent to invoke rule 35 of the Sind Local Councils (Election) Rules, 1979, The above contention seems to be correct, but the question still remains, whether the impugned rejection of the ballot-paper can be sustained on the basis of above rule.
9. (a) It was also urged by the learned counsel for respondent No, 3 that the entire procedure was explained by respondent No, 2 to the voters before they cast their votes which is reflected in Annexure 'B' to the petition which is the minutes of the meeting of the Town Committee held on 5- 11-1983 and also from para. 5 of respondent No, 3's counter-affidavit which has not been refuted by the petitioner through any rejoinder. It seems that the voters were explained the manner/procedure of casting their votes as contended by Mr. Mansoor-ul-Arfin. However, the point in issue is, whether respondent No, 2 could reject the vote in question though the voter's manifest intention was to cat vote in favour of the petitioner and in spite of the consistent view of the superior Courts including of the Honourable Supreme Court of Pakistan that if the intention of a voter is manifest, his vote cannot be rejected on a technical ground. In our view a Presiding Officer is required to decide the question of the validity of a vote in consonance with the well-established principles of law on the subject and not in any manner or in whatever manner. Any omission/ inaction on the part of a voter or a candidate cannot relieve him of hi above legal obligation.
(b) In this connection, it may be pertinent to reproduce the relevant observation of Hamoodur Rehman, J. (as he then was) in the above-cited and discussed Supreme Court case namely, the Presiding Officer v. Sadruddin Ansari, which reads as follows :- "It is well-settled, as observed by Ferris in his book on Extraordinary Legal Remedies at page 241, that 'mandamus will issue to correct an abuse of discretion if the cause is otherwise proper'. The question, therefore, is whether the action of the Presiding Officer in the instant case fell within this category. The High Court has held that he acted 'wantonly' upon 'irrelevant' considerations and `without foundation' in declaring the 4 disputed ballot-papers cast in favour of the respondent No, 1 invalid and, therefore, the case fell within the scope of the principles enunciated by this Court in Akbar Ali v. Raziur Rahman PLD 1966 SC 492.
' I have myself examined those ballot-papers and I have no hesitation in saying that the remarks made by the High Court were fully justified. There was no possibility of any doubt or dispute as to the person in whose favour the marks had been made on the said ballot-papers. In the circumstances, the action of the Presiding Officer in declaring those ballot-papers invalid was, in my opinion, wholly arbitrary and not inspired by any sense of duty which he had to perform, i,e, to do justice between the rival candidates. Such an arbitrary exercise of power may well be said to be a mere colourable exercise of power or even an abuse of power. Not only was, therefore, in my opinion, the petition under Article 98 of the Constitution maintainable but sufficient grounds also existed for the issuance of the direction that was made by the High Court."
(c) It will not be out of context to refer to the relevant observation on, the point in controversy in the aforesaid Division Bench judgment of this Court referred to hereinabove in para. (6)(i) reported in 1984 CLC 1294, which reads as under :- "From the above-cited and discussed cases, it is evident that the superior Courts prefer to hold a vote valid in preference to hold state invalid on a technical ground. If two plausible views are possible, one holding a vote valid and the other holding it invalid, the Court would prefer the former view. It may be pointed out that in the above Supreme Court and Lahore cases, notwithstanding the requirement under section 40 of the Electoral College Act, 1964, that the ballot-paper should contain official mark and initial of the Presiding Officer, it was held that the vote could not be rejected on the ground that it violated the above section 40, for the reason that section 45 of the above Act contemplated rejection of a vote only in the absence of the official mark, on the ballot- paper. Whereas in the above Karachi case of 1966, the Division Bench has placed liberal construction to the above two sections of the Act, namely sections 30 and 45 of the Electoral College Act, 1964 by holding that if a ballot-paper contains either official mark or initial of the Presiding Officer, the vote will be treated as valid. Whereas the above Karachi case of 1982, is directly on the interpretation of rules 35 and 40 of the rules and the instruction in question, in which it was held that absenco of a Presiding Officer on a ballot-paper will not render it invalid."
(d) Reference may also be made to the following cases on the above point :-
(i) Haji Ibrahim v. Election Tribunal Sargodha PLD 1966 Lah.
794.
(ii) Haji Muhammad Rafique v. Additional Commissioner and Election Tribunal Hyderabad Division PLD 1966 Kar.
434.
(iii) Taj Muhammad v. Dr. Abdul Qadeer and 2 others PLD 1982 Kar.
780.
(iv) The above-cited case of Wahid Bux v. Election Authority, Province of Sind through Deputy Commissioner, Sukkur and 4 others 1984 CLC 1294."
10. Mr. Mansoorul Arfin has referred to the case of Abdul Khaliq v. Province of Sind, through the Secretary Local Government and 3 others (1), in which a Division Bench of this Court dismissed the petition against the order of the Presiding Officer rejecting certain ballot-papers in favour of the petitioner, who had contested for the Mayorship of Karachi. It will suffice to observe that it is evident from the above judgment that the facts of the above case are distinguishable from the instant case inasmuch as there is no indication in the judgment as to the exact location of the cross-mark on the rejected ballot-papers.
11. Before parting with the discussion, we may observe that it is a common ground that after the filing of the above petition till the hearing of the petition no notification has been issued notifying respondent No, 3 as an elected Chairman of the Town Committee. In this view of the matter, it is not necessary even to declare the election of respondent No, 3 as invalid or illegal.
12. We would, therefore, allow the petition and declare that respondent No, 2 has illegally excluded the vote in dispute from counting in favour of the petitioner and the result declared by him after excluding the above vote is without lawful authority and of no legal effect. We direct respondent No, 2 to re-declare the result of the Chairman of Mirwah Town Committee after including the above vote in dispute in favour of the petitioner.
' In the circumstances of the case, there will be no order as to costs.
(1) 1980 CLC 1832