' RAJA MUHAMMAD KHURSHID KHAN, C. J.-Dr. Akbar Hussain in Civil Appeal No, 9 of 1985 and Mahboob Khan in Civil Appeal No, 10 of 1985, respondents, successfully questioned the validity of the Election of Khadim Hussain Khan, shah Muhammad Khan and Muhammad Rashid Khan, appellants, as members of the District Council Poonch before the Election Tribunal (District and Sessions Judge), Poonch. The learned Tribunal. Vide, order dated 10.10-1984, found that the election, being violative of the Election Rules, was void. On this finding a fresh election was ordered.
2. The appellants, Khadim Hussain Khan, Shah Muhammad Khan and Muhammad Rashid Khan, moved two writ petitions (first being No, 74 of 1984 and the second being No, 75 of 1984) to challenge the correctness of the order passed by the Election Tribunal. The learned Chief Justice of the High Court, however, could -riot be persuaded to accept the writ petitions which were refused vide orders dated 2-2-1985. These appeals are meant to call up and quash the said judgments of the High Court.
3. For, the questions involved being identical in both the appeals, we propose to dispose them of by this single order.
4. Before going to the controversial issues, it looks proper to narrate the relevant, facts in brief. The appellants (in both the appeals) namely Khadim Hussain Khan, Shah Muhammad Khan and Muhammad Rashid Khan and the contesting respondents (in both the appeals) namely Dr. Akbar Hussain Khan and Mahboob Khan, offered themselves as candidates for election. To a seat of District Council of Poonch District. The election was held on 27th of October, 1983. The appellants, for their securing majority votes, were declared successful.
5. The respondents challenged the election of the appellants by means of two election petitions which sought quashment of the election, inter alia, on the ground that the election was conducted in utter disregard of Election Rules and needs to be ignored. Itwas claimed that the polling scheme relating to polling stations of ward Koteri and Maira, falling within the area of Village Banjosa, was altered without the prior consent or permission of the Election Commissioner which was mandatory.
6, It may be mentioned here that Village Banjosa, for the 'purposes of polling, was divided into four wards, namely, Boojay-ne-Gali, Koteri, Maira and Gaam. The Polling Stations Boojay-ne-Gali and Gaam are not in dispute: The challenge is and was only with regard to the change of Polling Stations at Koteri and Maira. It was claimed by the respondents that in the notified polling scheme, Boys High School Banjosa and High School Maira were declared as Polling Stations for wards Koteri and Maira respectively but contrary to the polling scheme the election at these places was conducted at High School Miral Gala and Girls Primary School Maira, which fact had materially affected the result of the election as the majority of voters, due to the change in the polling stations, were unable to cast their votes.
7. The Election Tribunal found in favour of the respondents and accepting both the election petitions declared the election as a whole void on account of alteration in the polling stations without the mandate of lawful authority, i. e., Election Commissioner. It was also found that the illegality had materially affected the result of the election. So, fresh election was ordered.
8. Raja Mumtaz Hussain Rathore, the learned counsel for the appellants, during the course of arguments, has raised the following points of objection
(i) that the Polling Stations at Koteri and Maira have not been changed ; rather the names of the polling stations at both the places have been corrected but this aspect hay not been attended to in its true perspective by the Election Tribunal or the High Court ;
(ii) in alternate it was submitted that even if it is assumed that it was an alteration in the polling stations, there is a presumption that the consent of the Election Commissioner was accorded prior to the change of polling stations. His case is that official acts are to be presumed to have been performed as required under law ;
(iii) that there are two High Schools in ward Koteri of Village Banjosa, namely; Boys High School Banjosa and Tafheem-ul-Uloom High School, Banjosa, but there is no high school in ward Maira. So, the names of the polling stations at both places have to be corrected ; and
(iv) that even if it could be said that the polling stations were changed, section 10 (5) of the Election Rules is directory in nature and any violation thereof as is claimed here, cannot be made a valid base to declare the election as a whole void.
9. Sardar Muhammad Nawaz Khan, the learned counsel for the respondents, countered Raja Mumtaz Hussain Rathore on all scores.
10. We have given our best consideration to the arguments advanced at the bar and are of the view that these appeals merit no consideration for the following reasons :-
(a) There are two high schools in the area of Village Benjosa. One is situated in the area of Koteri which is named as Government High School Banjosa while the other is situated in ward Maira which is named as Government High School Maira or Miral Gala. The learned Election Tribunal has based its finding on cogent evidence to say that there exist Government High School Banjosa in the area of ward Koteri while Government High School Maira or Miral Gala falls within the area of ward Maira. Such a finding could not be disturbed by the High Court in exercise of writ jurisdiction.
(b) The record amply proves that no application for change of polling stations on 15-10-1983 was at all moved, rather the record proves otherwise or at least raises a strong inference that a Drama for change of polling stations was staged to help the appellants on 27-10-1983 the day the polling was conducted and not on 15-10-1983. Document Exh. D.A. Supports our view point. This document appoints Muhammad Zarrin, Teacher, as Presiding _Officer at Girls Primary School Maira. This order is dated 13th of October, 1983. Girls Primary School, Maira, according to the appellants was declared as polling station on 15-10-1983, and how then it is possible that on 13-10-19s3, two days earlier, Muhammad Zarrin could B be appointed as Presiding Officer at Girls Primary School Maira when there was no such polling station at all at Maira on that day. This order appears at page 56 of the file of the Election Tribunal. This document sufficiently suggests that under-hand means were adopted by the appellants to secure undue success.
(c) There is another document Exh. D.A. It appears at page 59 of the file of the Election Tribunal. It also proves the same facts. This document is an application moved to the Deputy Commissioner, Poonch, by Sardar Javaid. On this application the Deputy Commissioner called for the report of the subordinate staff. It was reported, though indirectly, that the amendment was done in accordance with proposal. The above reports amply prove that even the Deputy Commissioner when he sought report regarding the grievance was not reported that the polling scheme was changed with the permission of the Election Commissioner.
(d) Rule 60 (f) of the Election Rules authorises the Election Tribunal to declare an election void if the result of the election has been materially affected by any illegal act. In fact if any of the provisions of this rule are violated, it becomes imperative for the Election Tribunal to declare the election void.
In the instant case after critical survey of the evidence the Election Tribunal found that due to the change of the polling station most of the electors were unable to exercise their right of franchise and this fact had materially affected the result of the election. On this finding, it became imperative for the Election Tribunal to declare the election as void. Unless this finding does not stand vitiated by any legal infirmity such a perversity, patent illegality (which is not the case here), it is to be respected and such a finding cannot be called in question in the High Court in exercise of writ jurisdiction.
(e) Raja Mumtaz Hussain Rathore, the learned counsel for the appellants, wants us to reappraise the evidence to reach the conclusion E that it was not a change of polling stations, rather it was only a correction. We regret we cannot accept this contention for the above stated reasons,.
(f) A judgment is incorrect if it is wrong in law or fact, it is void if it is pronounced by an incompetent Tribunal. There is a clear distinction between the act wholly without jurisdiction and act done in the improper exercise of the jurisdiction. Where there is jurisdiction to decide, as it has often been said, there is a jurisdiction to decide either rightly or wrongly and merely the wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non-existent 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. It is settled rule that the Tribunal vested with the jurisdiction to decide a particular matter is also equally competent to decide it rightly o wrongly. The mere fact that a decision of the Tribunal is incorrect b itself would not render the decision without jurisdiction. Therefore, a incorrect or wrong order passed by special Tribunal cannot be discarded in exercise of constitutional jurisdiction of the High Court unless it can be held that the Tribunal has acted without jurisdiction or usurped the jurisdiction not vested in it. There is nothing in this case warranting such a finding. Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others (1) owns this view. In that case it has been observed :- "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 non-existent 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 usurption of jurisdiction."
(g) In fact there is a clear distinction between the incorrect decision and a void decision. In case Muhammad Ayub Khuro v. Pakistan (2) it was pointed out that a judgment is incorrect if it is wrong in law or fact ; it is void if it is pronounced by an incompetent Tribunal. In Badrul Hague Khan v. The Election Tribunal (3) it was observed that the admission of inadmissible evidence or improper allocation of onus or misinterpreta tion of the provisions of a statute would not necessarily render the impugned order without lawful authority, because the proposition is indisputable that when there is jurisdiction to decide a particular matter B then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction.
In Muhammad Swaleh v. United Grain and Fodder Agencies (4) it was laid down that by merely showing that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provisions or principle of natural justice as would render the proceedings coram non judice.
(h) In writ jurisdiction it is settled that the High Court is not to act as appellate Court but only to examine as to whether the authority has used the jurisdiction properly within the legal framework.
The fact that the Election Tribunal appreciated the evidence not in a way suited to a party cannot be considered to be a ground to disturb such a finding. So was held in Mir Alam Khan v. Mst. Afsar Jan and another (5) wherein it was observed :- "Another point which also requires consideration is, 'had the High Court jurisdiction to entertain the writ petition of the respondent ?' Whenever an order passed by an authority or tribunal having exclusive jurisdiction is passed in excess of the jurisdiction, the High Court, no doubt, will intervene.
But distinction must always be made between an order passed without jurisdiction and order passed wrongly. The distinction sometime 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
(1) PLD 1973 SC 236 (2) PLD 1960 SC 237
(3) PLD 1963 SC 704 (4) PLD 1964 SC 97
(5) PLD 1982 SC (A J & K) 107 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 indistinguishable 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 a jurisdiction to decide it rightly or wrongly. May it be a question of fact or even of law."
In the present case the order of the learned Election Tribunal cannot be said as to have been passed without jurisdiction. The learned Election Tribunal had the jurisdiction to decide the issue which it had exercised with due care and diligence. Evidence, oral and documentary, has been appreciated in accordance with law. In these circumstances, the High Court had no jurisdiction to entertain the writ petitions of the appellants.
(i) We are not, however, oblivious of the fact that whenever an order passed by an authority or Tribunal having exclusive jurisdiction is passed in excess of the jurisdiction, the High Court, no doubt, will intervene 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 the 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 the instant case nothing could be pointed out that the decision recorded by the Election Tribunal stands vitiated for illegal or excess of jurisdiction. Unless a clear case of illegal or N excess of jurisdiction or lack of jurisdiction or mistake apparent on the face of the record is not established, the High Court is to respect the finding recorded by a special Tribunal.
( j) It may be stated here that the learned Election Tribunal had the jurisdiction to decide as to whether there was change of polling stations without the permission of the Election Commissioner in terms of the Election Rules and the Election Tribunal, after appreciation of evidence, found that the polling stations were changed without the permission of the Election Commissioner and this fact had materially affected the result of the election. The High Court, therefore, was justified to disallow the writ petitions.
' For the reasons advanced in paras. (b) and (c) above, we feel convinced that an attempt in the cases has been made to show that the polling stations were changed on 15-10-1983 but we are of the view that all this was done on the day of polling, i. e., 27-10-1983 and not on 15-10-1983 as alleged by the appellants.
(k) We cannot agree with the learned counsel for the appellants that the provisions of section 10
(5) of the Election Rules are directory in nature. The reason is very simple. The violation of the rule is met with the penalty of quashment of the election as a whole. It is admitted Principle of law that when a penalty for violation is provided the word "shall" used in any clause or section shall be considered to be of mandatory nature.
' The above comments satisfactorily answer the objections raised by Raja Mumtaz Hussain Rathore.
Both the appeals, therefore, stand disimissed with costs.