' AJMAL MIAN, ACTG. C. J.-This petition is directed against the order dated 8th April, 1984 passed by the learned District Judge-cum-Election Tribunal, Quetta i,e, the respondent No, 4 whereby the election of the petitioner from Ward No, 7 of Municipal Committee, Zhob was declared void and the respondent No, 2 was declared in his place as elected. The brief facts leading to the filing of the above petition are that the petitioner, respondents Nos. 1 and 2 and some other candidates contested the election from the above ward. However, the respondent No, 1 in addition to Ward No, 7 had also filed nomination papers from Ward No, 21, from where on scrutiny he was unofficially declared as elected unopposed. A Not fiction to that effect was issued on 14th September, 1983.
Inspire of the fact that the respondent No, 1 was declared as elected unopposed on 26th July, 1983, he participated in the election of Ward No, 7 along with the other candidates as observed hereinabove. It may be stated that the respondent No, 1 had filed an appeal under rule 18 of the Baluchistan Local Government (Elections) Rules, 1983 (hereinafter referred to as the 'Rules') on the ground that the petitioner was disqualified in terms of clause (h) of section 21 of the Baluchistan Local Government Ordinance, 1980 (Baluchistan Ordinance II of 1980) (hereinafter referred to as the 'Ordinance), but the respondent No, l's above appeal was rejected by the Commissioner-Appellate Authority Quetta Division-Quetta by his order, dated 13th October, 1983 (Annexure 'H' to the petition). The operative portion of the order is as follows :- "Appeal against R. O's. Order rejected."
' After the counting of voting's, it was found that the petitioner had secured the highest votes namely, 69, whereas the next highest votes were 44 in favour of respondent No,
2. The other two remaining candidates, namely Ghyasuddin secured 29 votes and respondent No, 1 3 votes. The petitioner was notified as elected candidate under Notification No, 8-117/83 (P. L. G.), dated September, 1983. The respondent No, 1 filed an election petition on 15th October, 1983.
Simultaneously, on the same day, he also filed C. P. No, 205/83 in this Court, which was not proceeded with on the ground that the respondent No, 1 had already filed an election petition. The above election petition was contested by the present petitioner, but the learned Election Tribunal by its aforesaid impugned order, dated 8th April, 1984 allowed the same in the above terms. After the disposal of the above Election Petition the respondent No, 1 withdrew the above C. P. No, 235/83 from this Court, by an order, dated 18th April, 1984. The petitioner being aggrieved by the impugned order Of the Election Tribunal has filed the present petition.
2. The petitioner during the pendency of the above petition filed an application on 20th May, 1984 under Order VI, rule 17, C. P. C. (C. Misc. No, 220/84) praying for the following reliefs :- "It is, therefore, to pray that the petition be allowed to be amended to bring on record of this pending petition the fact that the Constitutional petition was filed simultaneously with the filing -of the Election Petition that was not disclosed in the Election Petition, and that the same was withdrawn after the final decision of the Election Petition. Additionally the grounds as urged in the Constitutional Petition No, 205 of 1983 be allowed to be incorporated in the petition since pending and further copy of the Petition No, 205 of 1983, be allowed to be brought on the record of the case.
' This application was taken up on 29th May, 1984 and the following order was passed :- C. Misc. 220/84.-Through this application learned counsel has sought amendment of the petition so as to incorporate the fact of filing Constitutional Petition No, 205/83 by the respondent No, 1 in this Court. Let this application be heard alongwith the main case. The fact sought to be brought on record is now very well in the notice of the Court and suitable orders shall be made at the time of final hearing of the case."
' After that the petitioner filed another application under section 151, C. P. C. (C. Misc. No, 577/84) on 22nd December, 1984 pressing for the amendment, which application was dismissed by an order, dated 7th April, 1985 inter alia, on the ground that the above earlier Application No, C. Misc. 220/84 would be taken up alongwith the main petition as already ordered.
3. In support of the above petition, Mr. Basharatullah, learned counsel for the petitioner has urged as follows :"(I) That the respondent No, l's election petition was not competent,
(ii) That respondent No, 1 had no locus standi to file the election petition.
(iii) That the petitioner was not disqualified in terms of clause (h) of section 21 of the 'Ordinance' and
(iv) That if the election petition of the respondent No, 1 was to be allowed the only relief which could have been granted was the declaration of the election as void but the respondent No, 2 could not have been declared as elected."
4. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the respondents Nos. 1 and 2 has contended as under :-
(i) That the respondent No, l's election petition was competent.
(ii) That the respondent No, 1 had the locus standi to file the above election petition as apart from being a voter of Ward No, 7 he was also a candidate.
(iii) That the petitioner had the pecuniary interest in the affairs of the Municipal Committee, Zhob at the relevant time and, therefore, was disqualified within the purview of clause (h) of section 21 of the `Ordinance'.
(iv) That the reliefs granted by the learned Election Tribunal are in in consonance with rule 74 of the 'Rules'.
3. Before taking up the above contentions raised by the learned counsel for the petitioner, it may be pertinent to point out that the `Ordinance' was first amended by the Ordinance IX of 1983 gazetted on 11th July, 1983 whereby sections 21 and 22 were substituted and after that by Ordinance X of 1983 (which was made applicable retrospectively with effect from 11th July, 1983) inter alia, -subsection
(2) of section 21 was added to.
' It may also be pertinent to dilate on the petitioner's above amendment application, whereby he sought the reliefs quoted hereinabove.
' It may be noted that the petitioner by his above amendment application had prayed for amendment to bring on record :
(1) the fact that the respondent No, 1 had filed the constitutional petition simultaneously with the filing of the election petition ;
(ii) that the above petition was withdrawn after the final decision of the election petition ; and
(iii) the grounds as urged by the respondent No, 1 in his C. P. No, 205/83 be allowed to be incorporated in the above petition and a copy of the same be allowed to be brought on record.
6. As regards the prayer referred to hereinabove in sub-paragraphs (i) to (iii) it will suffice to observe that these facts are already on record and, therefore, there is no need for any formal amendment of the petition. We have taken notice of the above facts during the arguments of the main petition. However, as regards the prayer referred to in sub-paragraph (iv) it may be stated that we were not inclined to grant the same as the Petitioner should have specifically stated the actual amendment, which he wanted to incorporate in his petition by re-producing the same in his application for amendment, as the grounds mentioned in the above C. P. No, 205/83 run into two and a half pages and some of them are, in fact contrary to what has been urged by the petitioner in the present petition. To demonstrate the above factual position, it will suffice to reproduce the grounds 'A' to 'C' which read as follows :-
(A) That the 1st respondent being Octroi Contractor for the running contract for the years 1983-84 and as also being enlisted contractor for the said local council and thus having pecuniary interest in the affairs of Municipal Committee Zhob was disqualified to be a candidate for election thereto under clause (h) of subsection (1) of section 21 of Baluchistan Ordinance II of 1980.
(B) That for the aforesaid reason the order of Returning Officer (respondent No, 2 and of the Appellate Authority (respondent) No, 3) are without lawful authority.
(C) That for the grounds mentioned as A and B above the election of the 1st respondent as member of Municipal Committee Zhob was void. The gazette Notification (Annexure '0') in respect of 1st respondent as being the returned candidate is of no legal effect."
7. However, the main ground which Mr. Basharatullah had canvassed at the Bar was that rule 70 of the 'Rules' was ultra vires of the powers of the rule making authority and that it was also repugnant to subsection (2) of section 21 of the 'Ordinance'. In this regard, it may be pointed out that if the petitioner wanted to press the above ground by making amendment in the petition, there was no plausible reason for the petitioner not to have mentioned this in his amendment application and the inclusion of this ground would have necessitated the impleading of the Government of Baluchistan which had framed the 'Rules'. Neither in the above amendment application, nor by any other separate application, the petitioner had requested for arraying the Government of Baluchistan as a respondent to the above petition.
' In this view of the matter we have declined the petitioner's request to incorporate in the present petition the grounds urged by the respondent No, 1 in his above Constitution Petition No, 205/83.
8. Adverting to the first contention of Mr. Basharatullah learned counsel for the petitioner that the respondent No, l's election petition was not competent, it may be observed that in furtherance of his above submission, he has referred to the above section 21 as amended by Ordinance X of 1983 rules 18 and 70 of the 'Rules'. In order to understand the respective contentions of the learned counsel for the parties, it may be advantageous to re-produce herein below, section 21 of the `Ordinance' and rules 18 and 70 of the 'Rules' which read as follows :- Section 21 : "Disqualification of a candidate (1). -A person shall be disqualified to be a candidate of a local Council if he :-
(a) ceases to be a citizen of Pakistan;
(b) is an undercharged involvement;
(c) is of unsound mind and has been so declared by a competent Court;
(d) is a whole time salaried official of the Federal Government or a Provincial Government or of a Public or statutory Corporation, a local council or other local authority ;
(e) has been on conviction for an offence involving moral turpitude, sentenced to imprisonment for a term of not less than six months.
( f) has been dismissed as a public servant within the meaning of Pakistan Penal Code (Act XLV of 1860);
(g) is a retired Servant of the Federal Government or a Provincial Government or of a public or statutory corporation, a local council or other local authority, unless two years have elapsed from the date of such retirement;
(11) is under contract for work to be done or goods to be supplied to the Local Council concerned or has otherwise any pecuniary interest in its affairs;
(i) is disqualified from the membership of any elective body under any law for the time being in force ; and ( j) has been or is engaged directly or indirect in subversive or anti-State activities or propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan or the sovereignty, integrity or security of Pakistan."
Explanation.-Anti-State activities shall include instigation to students, labours or any other section of people with a view to promote lawlessness or disorder.
(2) No order passed under subsection (1) shall be called in question in any Court.
' Rule 18. Appeal against acceptance or rejection of nomination papers. -(1) A person whose nomination paper has been rejected under rule 17 may file appeal against such rejection by a date as may be notified by the Election Authority in this behalf which shall not be beyond seven days following the date of such rejection to the Appellate Authority, and the orders passed on such appeal shall be final.
(2) Any person who has reasonable grounds to challenge the acceptance of any nomination paper may prefer any appeal, by a date notified by the Election Authority in this behalf which shall not be beyond seven days following the date of such acceptance, to the Appellate Authority specified under sub-rule (1). If the appeal is allowed, the name of the person whose nomination paper was accepted by the Returning Officer shall be ordered to be deleted from the list of validly nominated candidates. An order passed on such appeal shall be final.
(3) The appeal shall be addressed to the Officer appointed under sub-rule (1) and may be filed by any aggrieved person.
(4) An appeal shall be in the form of memorandum which shall state the date of the acceptance or rejection of the nomination, as the case may be and the grounds of appeal and shall be accompanied by certified copy of the order accepting or rejecting the nomination.
(5) An appeal shall be disposed of either summarily or after such summary enquiry as may be necessary.
(6) If the appeal is allowed, the name of the candidate shall be entered or deleted by the Returning Officer, as the case may be in or from the list of validly nominated candidates.
(7) There shall be a fee of rupees one hundred for filing appeal against the acceptance or the rejection of a nomination paper which shall be deposited with the Appellate Authority appointed under sub-rule (1) at the time of filing appeal.
(8) The Appellate Authority shall remit the cash deposit to Election Authority.
(9) The deposit under this rule shall be non-refundable."
' Rule 70. Grounds for declaring election of returned candidate void.-(l) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-
(a) the nomination of the returned candidate was invalid ; or
(b) the returned candidate was not on the nomination day qualified for or was disqualified from being elected as a member ; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice ; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2) The election of a returned candidate shall not be declared void on the ground-
(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by or with the connivance of his election agent and that the candidate and the election agent took all reasonable precautions to prevent its commission ; or
(b) that any of the other contesting candidate was, on the nomination day, not qualified for or was disqualified from being elected as a member."
' It may be noted that subsection (1) of section 21 describes the disqualifications of a candidate which, inter alia, includes clause (h), which provides that a person shall be disqualified to be a candidate of a Local Council, if he is under contract for work to be done or goods to be supplied to the Local Council concerned or has otherwise any pecuniary interest in the affairs of the Council. It may further be noticed that subsection (2) of the above quoted section 21 provides that no order passed under subsection (1) shall be called in question in any Court. It may also be stated that sub-rule (1) of rule 18 confers right upon a candidate to file an appeal against the rejection of his nomination paper, whereas sub-rule (2) entitles any person who has reasonable ground to prefer an appeal and if the appeal is rejected under sub-rule (1) the order passed in such appeal shall be final whereas if the appeal of any other person is allowed, under sub-rule (2) the Returning Officer is to be ordered to delete the name of the candidate from the list of validly nominated candidates and an order passed under the above sub-rule (2) would also he final. It may also be noticed that one of the grounds for declaring election of a returned candidate void provided for in the above quoted rule 70 is that the returned candidate was not, on the nomination day qualified for or was disqualified from being elected as a member.
9. Having dealt with the above relevant section and the rules, we may refer back to the above first contention of the learned counsel for the petitioner. It was vehemently urged by Mr. Basharatullah learned counsel for the petitioner that since the decision on the question of disqualification has been made final under subsection (2) of section 21, the above rule 70 providing disqualification a ground for declaring an election void, is ultra vires of above suosection (2) of section 21 of the 'Ordinance' and is also irreconcilable with the above sub-rule (2) of rule 18. The plea that the rule being ultra vires as pointed out hereinabove, has not been raised in the petition and this could not have been raised without impleading the Government of Baluchistan. However, we have examined' the merits of the above contention. Mr. Basharatullah in order to reinforce his above submission has referred to the case of Province of East Pakistan and another v. Nur Ahmed and another (1) and the case of Qazi Abdul Kafil Khan v. Faqir and another (2). In the former case, the Honourable Supreme Court while construing East Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960 in juxta-position with the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960 reiterated its earlier view taken in the case of Sh. Abdur Rehman v. The Collector and Deputy Commissioner, Bahawalnagar and others (3), in which it was held that though there was no specific provision in the Basic Democracies Order entitling the Member proceeded against for removal to an opportunity to show cause the member was entitled to such an opportunity on the principles of natural justice. The Court while rejecting the contention advanced by the learned counsel for the appellant, Province of East Pakistan, that the . Person proceeded with for removal was not entitled to an opportunity to show cause, observed as follows :- "Reading the rule in the above manner would be tantamount to enlarging its scope by depriving the aggrieved party of the right of being heard which he has. The Basic Democracies Order does not deprive him of that right. The rule-making Authority, therefore, cannot clothe itself with power which the Statute itself does not give."
' Whereas, in the latter case, a D. B. Of the erstwhile High Court of West Pakistan at Peshawar held that the Rules and bye-laws are to be consistent with the relevant Statute and also not to be repugnant to other laws in force. There cannot be any cavil with the propositions of law enunciated in the above cited cases. The question is, whether in] the instant case, there is any repugnancy between rule 70 and subsection (2)'C of section 21 of the Ordinance'. In our view, there is no repugnancy or conflict between the above Rule and the above provision of the `Ordinance'. It may again be observed that subsection (2) of section 21 of the 'Ordinance' has provided that no order passed under subsection (1) shall be called in question in any Court. The object of the above provision seems to be that at the stage of filing of the nomination paper, decision given on the question of disqualification of a candidate by the" authority provided under rule 18 would not be questioned in any Court. However, this does not lead to infer that this question cannot be reagitated before a forum provided by the 'Ordinance' read with the `Rules' i,e, ; the Election Tribunal. The object of setting-up an Election Tribunal is to provide forum to the parties concerned other than a Colin of law to agitate on the questions which were decided by the E Returning Officer or by the Appellate Authority at the stage of the election. It was vehemently urged by Mr. Aslam Chishti, learned counsel
(1) PLD 1964 SC 451 (2) PLD 1962 (W. P.) Pesh. 51
(3) PLD 1964 SC 461 for the respondents Nos. 1 and 2 that the word `Court' employed in the above subsection (2) of section 21 of the `Ordinance' does not cover an Election Tribunal provided for under the 'Ordinance' read with the `Rules'. We are inclined to subscribe to the submission that the words any Court `used in subsection (2) of section 21 of the 'Ordinance' would not cover an Election Tribunal provided for in the `Ordinance' read with Rules'.
' There seems to be also no conflict or inconsistency between sub-rule (2) of rule 18 and rule 70 of the `Rules'. It has been rightly pointed out by Mr. Aslam Chishti, that rule 18 deals with the stage of pre-elections, whereas rule 70 deals with the stage of post-elections. Furthermore, even if it is to be assumed that there is a conflict between sub-rule (2) of rule 18 and clause (b) of sub-rule (1) of rule 70 of the `Rules' which provides disqualification as a ground for declaring election of returned candidate void, the Court is to endeavour to harmonise and reconcile but if such an attempt fails, the provision last in order is to prevail. Since rule 70 is last in order it shall prevail over rule 18. In this regard, reference ma be made to paragraph 166 of the well-known book, namely the Construction of Statutes' by Earl T. Crawford, 1940 Edition at pages 262 an 263, which reads as under :- Conflicting provisions.-As above suggested the Court should seek to avoid any conflict in the provisions of the statute by endeavouring to harmonise and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoutedly each provision was inserted for a definite reason.
Often by considering the enactment in its entirety what appears to be on its face a conflict may be cleared up and the provisions reconciled. Consequently, that construction which will leave every word operative will be favoured over on which leaves some word of provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable, if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the largely because of the principle of implied repeal."
' We may again observe that to us, there seems to be no inconsistency between sub-rule (2) of rule 18 and the above clause (1)) of sub-rule (1) of rule 70 of the `Rules'.
10. It was then contended by Mr. Basharatullah, learned counsel for the petitioner that in sub-rule
(1) of rule 65, it has been provided that no election shall be called in question except by Election Petition made by any person and that `any person' does not include any aggrieved person who had filed an appeal under sub-rule (2) of rule 18 of the `Rules' against the acceptance of a nomination paper. In this behalf, it ma be pertinent to point out again that in sub-rule (2) of rule 18 of the 'Rules' it has been provided that any person who has reasonable ground to challenge the acceptance of any nomination paper may prefer an appeal and that the order passed on such appeal shall be final whereas sub-rule (3) of the above rule 18 provides that the appeal shall be addressed to the Officer appointed under sub-rule (1) and may be filed by any aggrieved person. It has, therefore, been contended by the learned counsel for the petitioner that an aggrieved person in terms of sub-rule (3) of rule 18 cannot be any person mentioned in sub-rule (1) of rule 65. To put it precisely, the contention was that since the respondent No, 1 as an aggrieved person had availed of the remedy by way of an appeal in terms of sub-rule (2) of rule 18 he was not entitled to re- agitate the same question as 'any person' within the purview of sub-rule (I) of rule 65. The above argument appears to be somewhat ingenious but we are unable to subscribe to the same. As pointed out hereinabove, Rule 18 deals with the stage of pre-elections, whereas, rule 65 to rule 74 cover the past election stage. The words 'any person' employed in sub-rule (1) of rule 65 are susceptible to a very wide connotation in contradistinction to the words 'an aggrieved person' and therefore, it cannot be even urged that 'any person' will not include even a person who was a candidate in the Local Council Elections. The use of the words 'any person' in rule 65 has placed an Election Petition under the above Rule on the footings of a writ of quo warranto. It is a well-settled principle of law that any member of the Public may file a petition for quo warranto against a person holding a public office. In this regard, reference may be made to the case of M. U. A. Khan v.
M. Sultan and another (1), in which the Honourable Supreme Court pointed out the distinction between sub-clauses (a) and (b) of Article 98 of the late Constitution of Pakistan, 1962 on the one hand and sub-clause (c) on the other hand and observed as follows :- "It will be seen that for the purposes of applications contemplated under sub-clause (b) the petitioner did not have to be an aggrieved party ; he could be any 'Person'. The reason for this distinction between the position of the petitioner under sub-clauses (a) and (b) on the one hand and sub-clause (c) on the other is that the matters contemplated by sub-clause (b) are of public importance and interest and it is enough that they are brought to the notice of the Court without the petitioner having any personal interest in the matter. The High Court was, therefore, in error in thinking that the petitioner before them had to be an aggrieved party for the purposes of urging any of the grounds against the validity of the respondent's appointment to a public office. The learned counsel for the respondent frankly conceded that he could not defend the view expressed in this behalf by the High Court.
' There can be little doubt that the appointment held by the respondent is in the nature of a public office. As pointed out by this Court in Masudul Hassan v. Khadim Hussain a public office is an office created by the State, by charter or by statute, when the duties attached to the office are of a public nature. In the instant case, the office of the Chief Inspector of Mines is a statutory office created by the State under section 4 of the Mines Act. The duties
(1) 1981 SCMR 74 and functions of this office are also of a public nature, dealing with the regulation of the working of mines in the Province. It is, therefore, clear that the petition instituted by the appellant was maintainable under sub-clause (2) of Article 98 of the 1962 Constitution read with the Provisional Constitution Order, 1969."
We are inclined to hold that the term 'any person' employed sub-rule (I) of rule 65 shall include even a candidate who might have filed an appeal under sub-rule (2) of rule 18 at the pre-elections stage.
11. Taking up the second contention of the learned counsel for the petitioner that the respondent No, 1 had no locus standi to file the above election petition, it may be observed that Mr. Basharatullah had re-invited our attention to the fact that the respondent No, 1 was declared unopposed elected from Ward No, 21 on 26th July, 1983 and notified on 14th September, 1983 and that in his Election Petition, he did not seek the declaration that he should be declared elected from Ward No, 7 but sought declaration to the effect that the respondent No, 2 who polled next highest votes be declared as duly elected candidate. In this connection, it may be pertinent to observe that the respondent No, 1 had prayed for the following two reliefs in his Election Petition :- "It is, therefore, prayed that the Tribunal may be pleased to make declaration that :
(1) the election of respondent No, 1 as returned candidate is void ; and
(ii) the respondent No, 2 who polled next highest votes was duly elected."
' Mr. Aslam Chishti, learned counsel for the respondent Nos. 1 and 2 on the other hand, had submitted that the respondent No, 1 was interested in the Chairmanship of Zhob Municipal Committee and, therefore, he could have sought a declaration that the respondent No, 2 was duly elected as he would have been a voter for the respondent No, 1 in the Chairmanship election of Municipal Committee, Zhob. He had further submitted that factually the respondent No, 1 was elected as the Chairman of the Zhob Municipal Committee.
12. It may be stated that there is no bar against contesting Local Council elections from two wards.
However, in case a candidate is elected from two wards, he has to decide which of the two seats he wishes to retain. In the instant case, though the respondent No, 1 was declared unofficially as elected unopposed from Ward No, 21 on 26th July, 1983, he could still contest the election s of Ward No,
7. If he would have been elected from Ward No, 7 as well, it would have been open to him to resign from the seat of Ward No,
21. Respondent No, 1 being a candidate to the election of Ward No, 7 and is a person also coveted by the term 'any person' employed in sub-rule (1) of rule 65, was competent to have filed the election petition for the relief mentioned in clause (i) of the prayer para. Of the Election Petition quoted hereinabove, namely for declaration that the election of the petitioner as returned candidate was void.
13. Reverting to the third contention of the learned counsel for petitioner that the petitioner was not disqualified in terms of clause (h) of subsection (i) of section 21 of the `Ordinance' it may be again observed that in order to attract the above clause (10 a person becomes disqualified if :-
(i) he is under contract for work to be done ; or
(ii) goods to be supplied to the local council concerned ; and
(iii) or has otherwise any pecuniary interest in the affairs of the Local Council concerned."
' Admittedly the petitioner does not fall in the above categories (i) and (ii) but the moot question is whether he had otherwise any pecuniary interest in the affairs of the Local Council concerned on the day of filing of the nomination paper. It is an admitted position that in pursuance of an auction held on 26th April, 1983 for the right to collect Octroi on behalf of the Municipal Committee, Zhob, the petitioner entered into an agreement with the Municipal Committee, Zhob on 29th June, 1983 for acquiring lease to collect Octroi in consideration of payment of Rs, 12,95,000 which were to be paid in the manner provided in paragraph 1 at page I of the agreement (Annexure 'E' to the petition) i,e, certain amount in advance and the balance was to be paid in eleven monthly instalments of Rs, 1,05,954 commencing from 1st July, 1983 upto May, 1984. On the day of filing of the nomination paper by the petitioner in July, 1983 the above agreement between him and the Municipal Committee, Zhob subsisted. However, it was vehemently urged by Mr. Bashara,tullah that in the above agreement, there is no mutuality between the parties to the contract and there is only obligation on the part of the petitioner to pay the above sum of Rs, 12,95,000 in the manner provided for in the agreement. It was further submitted by him that the Municipal Committee had no control over the manner of collection and the petitioner had the right even to employ his own staff. He has further submitted that the learned Election Tribunal has wrongly placed reliance on the case of Nur Ahmed v. Election Tribunal' Additional District Judge Sahiwal and 6 others (1), which Judgment was upheld by the Supreme Court while declining to grant leave to appeal through the judgment Nur Ahmed v. Election Tribunal! Additional District Judge Sahiwal and others (2). In the above Lahore case, the petitioner was declared elected from Ward No, 12 Town Committee Renala Khurd in the elections held on 25th September, 1979. The respondent No, 2 Ch. Wabeed-udDin had filed the Election Petition on the ground that the petitioner was engaged in work to be done for the Local Council concerned. The above Election Petition was allowed and it was held that the petitioner had taken a lease for the disposal of sullage water from the Town Committee, Renala Khurd from 1-7-1979 to 30-6-1980 and, therefore, he was disqualified in terms of clause (h) of section 21 of the Punjab Local Government Ordinance, 1979. The constitutional petition filed by the petitioner against the above order of the Election Tribunal was dismissed by a D. B. Of the Lahore High Court through the above reported judgment and it was held that the petitioner had the above contract for removal of sullage water and, therefore, it was rightly held by the Election Tribunal that he was disqualified in terms of clause (h) of section 21 of the Punjab Local Government Ordinance, 1979. The above judgment was upheld by the Supreme Court in the above reported judgment.
' Mr. Basharatullah has filed a copy of the agreement, which was executed between the petitioner in the above Lahore case and the Town
(1) PLD 1982 Lah. 123 (2) 1982 SCMR 453 Committee, Renala Khurd (page 77 of the petition). On the basis of the above copy of the agreement, it was urged by him that the terms and conditions contained therein, clearly indicate that there was mutuality of agreement between the said petitioner and the Town Committee Renala Khurd, which is lacking in the agreement in the instant case. We are unable to accept the above contention. It may be observed that there cannot be any binding agreement in the absence of mutuality between the parties to the contract. In the present case, there is mutuality between the petitioner and the Municipal Committee, Zhob, which is evident from the terms and conditions of the agreement. The Municipal Committee, Zhob in consideration of the above sum of Rs, 12,95,000 had given the right to collect Octroi on its behalf to the petitioner for the period of one year commencing from 1-7-1983 to 30-6-1984. In this regard, reference may be made to clauses
(2) (3), (4), (5), (8), (9) (13), (14) and (15), which read as follows :- "(2) That the lessee shall be entitled to collect the Octroi according to Schedule Notified Vide No, A/M/G/51, dated 27th March, 1951 by the Political Agent to the Governor-General and Chief Commissioner in Baluchistan Quetta, subject to any amendment made from time to time by the competent authority.
(3) That all the Octroi staff be under the direct control of lessee and their transfer from Octroi post to another post will also be under direct control of the lessee.
(4) That, the lessee is entitled to appoint his staff for the collection of Octroi at his own expenses and shall exercise all powers and be subject to all responsibilities attaching to the persons so appointed to collect the octroi.
(5) That, all the Octroi posts within the Octroi limits in the Municipal Committee, Zhob shall be under direct control of the lessee and all amounts collected as Octroi shall go to the lessee.
(8) That, on the termination of the lessee, the lessee shall be entitled to refund of his security from Municipal Committee, Zhob if there is nothing outstanding against the lessee.
(9) That, if the lessee fails to pay the monthly instalments referred to above, the Clause No, 1 or committed any breach of the provisions of any terms and conditions of this agreement, Municipal Committee, Zhob i,e, ; the part of the 1st part may without prejudice to any other action which it may be entitled to take against the lessee under the law, the West Pakistan, Municipal Committee (Octroi) Rules, 1964 as amended up-to-date, forfeit the said security deposit of the lessee and forthwith cancel this lrsdr pody within the octroi limits of the Municipal Committee, Zhob and start collecting the Octroi through its own Agency.
(13) That, all the directions issued by the Government/Controlling Authority in respect of Municipal Committee, Zhob regarding the administration of Octroi shall be tending on the lessee shall be complied with by him.
(14) That, the lessee shall not charge anything beyond the levy authorised schedule and the rules.
Any person aggrieved by any charge levied beyond the Octroi schedule by the lessee shall have the right to represent to the Chairman, Municipal Committee, Zhob and the order passed by the Chairman shall be binding on the lessee subject to an appeal to the Government/Controlling Authority Municipal Committee, Zhob, Quetta.
(15) That, during the lease period if the schedule is amended and the octroi rates are raised the lessee shall raise the lease amount proportionately consequently be allowed corresponding relief such amount in each case with the approval of the Government/Controlling Authority, Municipal Committee, Zhob Quetta."
' The above quoted clauses clearly establish that there was in fact mutuality between the parties.
14. It was then contended by Mr. Basharatullah, that in the above Lahore case, the removal of sullage water was a statutory duty, whereas the right to collect octroi in the present case, was not a statutory duty of the Zhob Municipal Committee. It is true that there is a distinction between the statutory duties cast upon a particular statutory Corporation and permissible functions/acts, which it may also perform. The Statutory Corporation concerned in case of permissible functions/acts, has the discretion to do or not to do the same, but in case of the statutoryK functions/acts, the Corporation is bound to perform the same. Another important distinction is that the performance of the former cannot be enforced through the legal process but the performance of the latter can be enforced through a writ of a mandamus. However, the above distinctions are not relevant for the purpose of the present case as the point in issue is, whether the petitioner had otherwise any pecuniary interest in the affairs of Zhob Municipal Committee on the day of filing of his nomination paper. As pointed out hereinabove, that on the day of filing of his nomination paper, the petitioner had the above agreement in his favour to collect octroi. The above agreement was to remain in force for a period of one year upto 30-6-1984. He was liable to pay Rs, 12,95,000 being the consideration in instalments. In view of the above admitted position, it cannot be urged that the petitioner did not haveL otherwise pecuniary interest in affairs of the Municipal Committee, Zhob.
There could have been a dispute as to the payment of the balance amount and the petitioner's personal interest would have come directly into conflict with the interest of the Municipal Committee. He being a Member could have exercised some influence to the determent of the financial interest of the Municipal Committee. In order to avoid such a situation, the above clause
(Ii) in subsection (1) of section 21 of the `Ordinance' has been provided for.
15. In this regard it may be pertinent to quote the relevant observation of the Supreme Court in the above reported judgment of 1982 SCMR 453, which reads as follows :-- "An examination of the conditions reproduced at page 4 of the petition shows the mutual rights and obligations arising under the contract. A contract in ordinary parlance is an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials have been spelt out to be competent parties, subject-matter a legal consideration, mutuality of agreement and mutuality of obligation. The word 'work' in its ordinary meaning would include to be engaged in the per-formance of a task, duty or the like. In the context of the statutory rights and duties, it has to be noted that the local Body itself was under a local duty to ensure the performance and safety of the locality and the residents by making proper arrangements for the disposal of sullage water. In execution of that public duty, it had by means of public auction entered into a contract which provided the accomplishment of the duty in an efficient and satisfactory manner. Mutuality of the obligation was created, penalties were prescribed and liabilities were indicated. This contract was to run for the whole year from 1-7-1979 to 30-6-1980.
The examination of the conditions itself indicates that provision was made for keeping out unwanted interference of the contractor in the functioning and working of the affairs of the local Body itself were considered. This will only point out the close contract between the two parties, the nature of their relationship and what has to be taken care of. The object of the litigation under consideration and the disqualification prescribed is indeed the same or similar. It cannot therefore, be urged with any success that such a contract and dealing should by a strict interpretation of words of the statute which do not justify any such restriction be excluded from its purview. We find that there is no merit in the petition and the leave to appeal is refused."
16. Mr. Aslam Chishti, learned counsel for the respondent Nos. 1 and 2 has referred to the following cases in addition to relying upon the above Lahore and Supreme Court cases :- "(1) Habibullah Khan v. Election Tribunal (Local Councils), D. I. Khan and 2 others PLD 1984 Pesh. 173 (D. B.) in which upon filing of an Election Petition, the election of the petitioner was declared as void on the ground that he had filed a suit against the Municipal Committee, Tank for the recovery of Rs, 2,14,088 and, therefore, had a pecuniary interest. The above order of the Election Tribunal was impugned in a writ petition, which was allowed by a D. B. Of the Peshawar High Court by the above reported judgment. It was held that the petitioner's claim may be decreed or dismissed and that by no stretch of imagination can it be held by bringing such a claim in a civil Court, which has yet to be adjudicated upon, the petitioner was having pecuniary interest in the affairs of Municipal Committee, Tank.
' The ratio of the above case seems to be that any claim pending in a civil Court in respect of the past transaction cannot be construed against the claimant as having pecuniary interest in the affairs of Local Council in terms of clause (h) of section 21. The above case has no direct application to the present case as in the instant case, the agreement was to operate as pointed out hereinabove for the period from 1-7-1983 to 30-6-1984 and, therefore, it was not a case of past and close transaction.
(ii) Mehar Ali v. Jumma Khan and 6 others 1981 CLC 73. In this case, a D. B. Of the Sind High Court while construing section 37 (2) of Ordinance II of 1972 which is parallel to clause (h) of subsection
(1) of section 21 of the 'Ordinance' dismissed the constitutional petition and upheld the order of the Election Tribunal declaring the petitioner's election void on the ground that he had pecuniary interest in the affairs of the Town Committee. In the above case, the petitioner was indebted to the tune of Rs, 18,000 till the day of the polling of election in respect of the Town Committee concerned.
It may be advantageous to reproduce herein below the relevant observation, which reads as follows :- "In our view the submission is not corrrect. The expression pecuniary interest has not been defined in the Ordinance, therefore, it is to be understood in its ordinary dictionary meaning and according to 'The Oxford English Dictionary Vol. VIP the word pecuniary means having regard to money of which money is the object, and includes money resources in money matters and interest means that which is to or for the advantage of any one good benefit or profit or advantage and a person who has to pay some money to a Council in our view has, therefore, pecuniary interest therein for the existence of liability to pay the debt could be effected in more than one way. He may use his influence in such a way that the Town Committee may not at all enforce its claim or it may delay its action to recover the same, or write it off. This expression came up for interpretation in Brown v.
Director of Public Prosecutions, while construing the provisions of section 76 of the Local Government Act, 1933 (amended by Local Government Pecuniary Interest Act, 1964) which makes it necessary for any member of Local Authority who has pecuniary interest in a contract or proposed contract to disclose the fact in certain circumstances."
' The above case on all fours is applicable to the present case, as admittedly on the day of filing of the nomination paper and also on the day of election, the petitioner was indebted to the Municipal Committee, Zhob to the extent of the amount mentioned in the aforesaid agreement.
17. It was then contended by Mr. Basharatullah that factually he had transferred the above agreement to his brother Abdul Khaliq under the Power-of-Attorney, dated 15-8-1983 (Annexure to the petition).
' And that even a request was made to the Revenue Commissioner for the change of the name through application dated 15-8-1983 (Annexure 'S' to the petition). It will suffice to quote the petitioner's admission before the Election Tribunal in the cross-examination, which reads as follows :- "I did not move any authority after my election that the octroi contract be cancelled. 1 did state in my reply to the petition in paragraph No, 3 without prejudice to the above, even otherwise, the replying respondent has transferred all his rights, liabilities and interest in favour of one Abdul Khaliq much prior to the holding of election of local bodies and as such now he has got no concern or connection with the octroi of Municipal Committee, Zhob. After the sanction from the Government, I had executed the agreement for octroi with the Municipal Committee, Zhob. I know that without the sanction from the Government, I cannot transfer the contract to anyone. I did not obtain any sanction from the Government for the transfer of Octroi contract."
' The above admission negates the learned counsel for the petitioner's above contention.
18. There remains the last submission made by the learned counsel for the petitioner, namely, that if the election petition was at all to be accepted, the respondent No, 1 could not have been declared as elected. It may be observed that under rule 72 of the 'Rules' an Election Tribunal after the conclusion of an Election Petition can dismiss the same or declare the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected, or declare election as a whole to be void.
' In the present case, the learned Election Tribunal had declared the election of respondent No, 1 as void and also declared the respondent No, 2, who had secured the next highest votes as elected candidate. Mr. Basharatullah in furtherance of his above submission has invited our attention to the fact that the petitioner had secured 69 votes, which were the highest number of votes secured out of the four candidates as pointed out hereinabove and that the disqualification of the petitioner was not notorious and known to the voters and, therefore, the proper course for the Election Tribunal was to order the fresh elections as it cannot be said that if the petitioner would not have been in the field of the elections, in whose favour 69 votes would have been cast out of the three remaining candidates. In support of the above contention, he has referred to (a) Syed Saeed Hassan v. Pyar Ali and 7 others (1), relevant portion at page 35 wherein the Honourable Supreme Court of Pakistan while dealing with the point in issue, observed as follows :- "The well-known principle in substance is that 'Votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien in fact or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however the disqualification is not notorious and depends on legal arguments or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with next highest number of votes."
' In the above judgment reliance was placed inter alia, on the cases.
(i) Rashid Ahmed Rahmani v. Mirza Barkat Ali Master Fazal Elahi and the ,dditional Commissioner, Lahore PLD 1968 SC 301.
(ii) Federation of Pakistan through the General Manager, N. W. Railway Lahore v. Ali Hassan PLD 1967 SC (Pak.) 249.
(iii) Muhammad Saeed and 4 others v. Election Petitions Tribunal, W. P. Mehr Muhammad Arif Khan, Ghulam Haider and West Pakistan Government and others PLD 1957 SC (Pak.) 91.
(iv) Sanaullah v. Election Tribunal Gujrat and others PLD 1966 (W. P.) Lah.
97.
(1) D 1976 SC 6
(v) Vashist Narain Sharma v. Dev Chandra and others AIR 1954 SC 513.
(vi) Paragraph 549 from the Halsbury's laws of England third Edition Volume 14.
(b) Muhammad Ashraf v. Muhammad Ajaib (1). In this case, the respondent No, 1 was declared as elected from the seat reserved for peasants in Union Council, Chak Umra, Chakwai, District Jehlum.
His election was declared as void by the Election Tribunal on the ground that he was a depot holder and also owned land exceeding 40 Kanals which disqualified him from contesting the election from the above reserved seats. The petitioner who had secured second highest votes filed a constitutional petition for seeing relief that he should have been declared as elected by the Election Tribunal. While dismissing the above petition, a learned Single Judge of the High Court Lahore observed that the fact that respondent No, 1 being owner of land exceeding 40 Kanals not by its very nature is a matter of notoriety and could not be assumed to have been within knowledge of voters unless established. The doctrine of 'thrown away votes' in circumstances, was not attracted to the case and, therefore, the petitioner was not entitled to be declared as elected.
(c) Lal Muhammad v. Muhammad Usman and others (2), wherein the Honourable Supreme Court quoted with approval the passage from the judgment in the case of Cosling v. Valey and another (3). It may be advantageous to reproduce the above approved quoted passage which reads as follows :- "Whether the majority of electors vote for a disqualified person in ignorance of the fact of disqualification, the election may be void or voidable, for in the later case, may be capable of being made good, according to the nature of the disqualification ; the objection may require ulterior proceedings to be taken before competent tribunal, in order to be made available ; or it may be such as to place the elected candidate on the same footing as if he never had existed and the votes for him were a nullity. But in no such case are the electors who vote for him deprived of their votes if the fact becomes known and is declared while the election is still incomplete. They may instantly proceed to another nomination and vote for another candidate. If it be disclosed afterwards, the party elected may be ousted and the election declared void ; but the candidate in the minority will not be deemed ipso facto elected. But where an elector before voting received due notice that a particular candidate is disqualified, and yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchise ; and therefore, however, strongly he may in fact dissent and in however strong terms he may disclose his dissent he must be taken in law to assent to the election of the opposing and qualified candidate, for he will not take the only course by which it can be resisted, that is the helping to the election of some other person. He is present as an elector ; his presence counts as such to make up the requisite number of elections where a certain number is necessary but he attends only as an elector
(1) PLD 1980 Lah. 311 (2) 1975 SCMR 409
(3) (1847) 7 Q B 406 .To perform the duty which is cast on him by the franchise he enjoys as elector ; he can speak only in a particular language ; he can do only certain acts ; any other language means nothing any other act is merely null. His duty is to assist in making an election. If he dissents from the choice of A, who is qualified he must say so by voting for some other also qualified he has no right to employ his franchise merely in preventing an election and so defeating the object for which he is empowered and bound to attend. And this is a wise and just rule in the law. It is necessary that an election should be duly made and at the lawful time ; the electoral meeting is held for that purpose only ; and but for this rule the interest of the public and the purpose of the meeting might both be defeated by the perverseness or the corruption of election of electors who may seek some unfair advantage by postponement. If then the elector will not oppose the election of A in the only legal way he throws away his vote by directing it where it has no legal force ; and so doing he voluntarily leaves unopposed i,e, assents to the voices of other electors. 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 consequences as to the vote be just.
But if the disqualification be of a sort whereof notice is to be presumed, none 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 ; there the fact would be notorious ; and every man would be presumed to know the law upon that fact."
(d) Abdul Jabbar Siddiqui v. Returning Officer, Hyderabad Municipal Corporation City and 111 Additional Sessions Judge, Hyderabad (1), in which the petitioner had secured the highest votes but the Returning Officer refused him to treat as a candidate on the ground that no election symbol was allocated to him and declared the candidate who had obtained the second highest votes as successful. Upon a constitutional petition filed by the petitioner, the same was allowed by a D. B. Of the Sind High Court, to which one of us (Mr. Justice Ajmal Mian, Actg. C. J.) was a Member and it was held that the above disqualification was not known to the voters and therefore, the fresh elections were the proper course.
19. The ratio of the above cited cases seems to be that if a disqualification of a candidate is so notorious that it can be presumed to have been known to the voters who had cast their votes in his favour, the doctrine of 'thrown away votes' would be attracted to and it would in deemed that the voters had deliberately thrown away their votes and did not with to cast votes in favour of the candidate/candidates to whom no disqualification was attached. But the factum of notoriety must be founded on some positive and definite fact existing and established at the time of casting votes, from which perverseness on the part of the voters to cast their votes in favour of a disqualified candidate can reasonably be inferred. In such a case, the candidate who has secured the second highest votes can be declared as elected but where the disqualification was not so notorious, the above doctrine would not be attracted to and the proper course would be to have a fresh election in order to provide
(1) PLD 1985 Kar. 339 an opportunity to the voters to elect from the candidates who are qualified to be elected.
' In the instant case, the factum that the petitioner had the above agreement for lease to collect octroi for the period from 1-7-1983 to 30-6-1984 was not a fact of the nature which could have been known to the voters or which could have acquired notoriety as to attract doctrine of 'thrown away votes'. In this view of the matters the Election Tribunal's order declaring the respondent No, 2 as elected instead of ordering fresh elections is not sustainable in law.
20. It will not be out of context to mention that the respondent No, 2 stands convicted by a Military Court and has been awarded sentence of five years R. I. This fact was brought on record by filing of an application by the petitioner on 24-10-1984 (C. Misc. No, 480/84). In our view, it is not necessary to dilate on as to the effect of above conviction of the respondent No, 2 as it is beyond the purview of present petition.
21. For the aforesaid reasons, the petition is allowed to the extent of declaring the Election Tribunal's order of declaring the respondent No, 21 as being elected, as being without lawful authority. We also order reelection of Ward No,
7. The petition stands disposed of in the above' terms with no orders as to cost.
' These are our reasons in pursuance of a short order of even date. ,...r..