JAVED IQBAL, J.- This is a Constitutional Petition, preferred on behalf of Abdul Karim under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as the Constitution) with the following prayer:- "It is therefore, most respectfully prayed that this Hon'ble Court may be pleased to:-
(a) declare that orders of disqualification passed by the Returning Officer as well as the Appellate Authority are illegal and are passed without any jurisdiction and be further pleased to set-aside both such orders.
(b) declare that the petitioner is a validly nominated candidate for contesting election.
(c) direct the Returning Officer/AC Hub to include the name of the petitioner in the validity nominated candidates.
(d) Any other order which this Hon'ble Court considers appropriate.
(e) Costs.
2. Briefly stated the facts of the case are that petitioner filed nomination papers for contesting election as Councillor from Ward No. 10 Town Committee Hub, Tehsil Hub District Lasbella in the office of Assistant Commissioner Hub/Returning Officer. The petitioner appeared before the learned Returning Officer on 22.2.99 for the purposes of scrutiny of his nomination papers which were rejected on the ground that Seconder of the petitioner was not present at the time of scrutiny.
Being aggrieved an appeal was preferred which met the same fate and rejected by Commissioner/Appellate Authority Kalat Division Khuzdar vide order dated 1.3.99, hence this petition.
3. It is mainly contended by Mr. Ashraf Khan Tanoli, Advocate that both the impugned orders passed by learned Returning Officer and Appellate Authority are in violative of the provisions as contained in Section 17(3)(b) of the Balochistan Local Government (Election) Rules 1983 as the presence of Seconder was not essential before the Returning Officer at the time of scrutiny which aspect of the matter escaped un-noticed and resultantly the nomination papers were rejected which resulted in serious mis-carriage of justice. It is next contended that no objection whatsoever was raised at the time of scrutiny by any other contesting candidate and the objection which persuaded by Returning Officer regarding absence of seconder is not tenable under the relevant rules. It is urged with vehemence that the petitioner fulfilled all the qualification as prescribed under Section 20 of the Balochistan Local Government Ordinance, 1980 and thus on baseless grounds his nomination papers cannot be rejected. In order to substantiate his version Mr. Ashraf Khan Tanoli, Advocate referred PLD 1984 150 and judgment passed by this Court in C.P. No. 1 /97 on 7.1.97.
4. Learned A.G. Appeared on behalf of official respondents and strenuously controverted the view point as canvassed by Mr. Ashraf Khan Tanoli, Advocate and contended that the presence of Seconder at the time of scrutiny is must in order to check the authenticity of the signatures of Seconder which could have been done in his presence which cannot be dispensed with. It is next contended that the order passed by learned Returning Officer being incosonance with the object and scheme of the Balochistan Local Government (Election Rules 1983) does not call for any interference. It is urged with vehemence that the word 'may' as used in Rule 17 of the Balochistan Local Government (Election) Rules, 1983 conveys the meaning of shall for all practical purposes if read with in conjunction of other relevant provisions.
5. We have carefully examined the respective contentions as agitated on behalf of the petitioner and for official respondents in the light of relevant provisions of law and rules made thereunder to appreciate the contentions as reproduced hereinabove. The impugned order passed by learned Returning Officer runs as follows:- 4L-AX Ss i-f J 1 j*/J {{urdu text}}
6. A careful perusal of the said order would reveal that at the time of scrutiny the petitioner was directed to produce any of his relatives to show that the Seconder was forcibly removed and abducted by the opponents. The petitioner failed in doing the needful and his nomination papers were rejected. It is worth mentioning that the above re-produced order cannot be equated to that of a speaking one as no legal provisions whatsoever has been mentioned by the learned Returning Officer according to which the presence of Seconder was must and mandatory. We are conscious of the fact that usually such orders cannot be lengthy but when a particular plea is taken for rejection of the nomination papers that must be supported by quoting the relevant provision of law. It is worthwhile to mention here that no discretion whatsoever has been conferred upon the Returning Officer for rejection or acceptance of the nomination papers and an exhaustive procedure capable enough to need all sort of eventualities has been prescribed under the relevant rules which is to be followed strictly. The Appellate Authority has also acted in an arbitrary manner by endorsing the impugned order passed by learned Returning Officer and no attention seems to have been paid to the relevant provisions of law. We have not been persuaded to agree with learned A.G. That Section 17 of the Balochistan Local Government (Amendment Ordinance), 1999 is to be read in conjection with the provisions as contained in Section 20 of the said Ordinance for the simple reason that no mention whatsoever has been made either in Section 17 or Section 20 malting it obligatory to produce Seconder at the time of scrutiny of nomination papers. It would not be out of place to mention here at this juncture that Rule 17 of the Balochistan Local Government (Election) Rules, 1983 deals with scrutiny and is reproduced herein below for ready reference: - "17 Scrutiny.('ll The candidates, their election agents and proposers may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under rule 15;
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule
(1) examine the nomination papers and decide any objection to raised by any such person to any nomination.
(3) The Returning Officer may, either of his on motion or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that.
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) Any provision of rule 5 or rule I6 has not been complied with; and
(d) the signature of the proposer of the seconder is not genuine;
(4) In sub-rule (3) of rule 17 the following new clause shall be substituted:-
(e) The candidate has not submitted any false or incorrect declaration or statement, in any material on. Nomination form."
7. We have examined with care and caution the provisions as contained in Rule 17. The language as employed in the said rule is free from any ambiguity and it is crystal clear that the candidate, his election agent and proposer may attend the scrutiny of nomination papers. "The word 'may' is a discretionary and enabling word, unless the subject-matter shows the exercise of the power given by the provision using the word 'may' was intended to be imperative by the person to whom the power is given. (AIR 1968 Madhya Pradesh 1). It is well-settled by now that the word may' in isolation from the context in which it is used in a statute, would be treated as permissive in nature and thus import a discretionary power but the difficulty with a Court of law is that it cannot just ignore the context and make the power thus conferred subservient to the ordinary meaning of the word ' may' on 'shall'. That is why the proposition that the word has sometime to be read as imposing a duty, is no longer open to doubt.
8. What is the test to determine as to whether the word, as used in a particular statute, is merely directory or has a mandatory implication? In this connection, reference may be made to the following passaged in Craies on Statute Law, page 285:- "It is, however, a well-recognized canon of construction, as Lord Cairns said in Julius v. Bishop of Oxford, that "where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised." And Lord Black-burn said: "The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right'. In R.V. Bishop of Oxford, Cockburn, C.J., said; "So long ago as the year 1693, it was decided in the case of R.V. Barlow, that when a statute authorises the doing a thing for the sake of justice or the public good, the word 'may' means 'shall' and that rule has been acted upon to the present time........... And of course the same rule will apply to the words ' it shall be lawful'.
"That", said James L.J, in Re: Neath and Brecon Ry, 'is the usual courtesy of the Legislature in dealing with the judicature'. But, when so employed, this expression, 'it shall be lawful', as James L.J. Went on to say, 'means in substance that it shall not be lawful to do otherwise."
A case under the Indian Income Tax Act came up before their Lordships of the Privy Council in AIR 1923 P.C.
138. Under section 51(1), the Chief Revenue Authority was empowered to refer a case to the High Court but here too the word used was may'. Both before the High Court as well as the Privy Council, it was contended that the Legislature having used the word 'may', the Chief Revenue Authority was not bound to do so even on the application of the person to be assessed if he was satisfied that the application was frivolous or that the reference was unnecessary. Their Lordships commented as follows:- ' No doubt that part does not say that he shall state a case, it only says that he may. And as the learned counsel for the respondent rightly urged, may' does not mean 'shall'. Neither are the words 'it shall be lawful' those of compulsion. Only the power or paper is given to the Authority. But when a capacity or power is given to a public authority, there may be circumstances which couple with the power a duty to exercise it. To use the language of Lord Cairns in the case of Julius v. The Bishop of Oxford: 'There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the tile of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.
In their Lordships view, always supposing that there is a serious point of law to be considered, there does lie a duty upon the Chief Revenue Authority to state a case for the opinion of the Court, and if he does not appreciate that there is such a serious point, it is in the power of the Court to control him and to order him to state case."
In PLD 1958 SC (Ind.) 180, after holding that "it is not always correct to say that where the word 'may' has been used, the statute is only permissive or directory", the learned Judge has quoted the following passage from Crawford's Statuary Construction Article 261 at page 516:- "The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other...................................... In AIR 1959 Bom 401, a Division Bench held that the word 'may' used in section 12(3)(a) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 was not used in a permissive sense but meant 'shall' or 'must'. There Lordships referred to AIR 1948 Bom. 254, wherein Chagla, Acting Chief Justice and Bhagwati, J, held that the word 'may' used in section 59. Of the Indian Stamp Act should be read as 'shall'. Similarly reference has also been made to 10 Bom. L.R. 345 wherein Mr. Justice Beaman similarly construed the word 'may' occurring in section 49 of the Indian Insolvency Act. Dealing with the case before them, their Lordships held:- "(4) The question as to whether may' in some cases can mean 'must' has been considered by judicial decision on several occasions. Usually the word may' is an enabling word: it gives discretion to the person who is given the option to act in particular manner mentioned in the section. But it is well recognised that the word 'may' in the context can mean 'shall'. If statutes authorise any specified persons to do acts for the benefit of others, the authority conferred is coupled with an obligation to discharge a duty by the statutes themselves, and, in such case, though the word used by the Legislature may be ' may, the intention is to impose an obligation upon the authority to discharge his duty, with the result that the word 'may' in the context means 'must' or 'shall'. Whether the authorised person is given a discretion or is under a compulsion or obligation to do a particular act would irrefutably depend upon the context in which the word 'may' has been used, the scheme of the statute wherein the section using the word may occurs, and such other relevant consideration."
10. The learned counsel for the Government has relied upon PLD 1964 Lah. 329, 686 and PLD 1965 Lah. 23 in support of his argument that the word 'may' confers an absolute and unquestionable discretion upon the Appellate Authority. These cases, however, do not run counter to the proposition as contained in various citations mentioned earlier. All the three cases arose under the Rent Restriction Ordinance No. VI of 1959. IN PLD 1964 Lah. 329 the Rent Controller ordered the ejectment of a tenant but the District Judge set-aside that order. The landlord's second appeal too was dismissed. Considerable argument centred round the interpretation of the word 'may'. The learned Judge not only went into the grounds which had led to the dismissal of the appeal before the District Judge but has also stated:- , "It may be that in view of this principle, the word ' may' was deliberately used in subsection (2) of section 13 of Ordinance VI of 1959, leaving a discretion with the Controller not to direct the tenant to put the landlord in possession if the circumstances of the case are such that it is necessary in the interest of justice not to order so. It must be remembered, however, that it is intended that normally in case of default an order of ejectment is to follow, and the exercise of discretion must be based on good grounds on a careful consideration of the all relevant factors with a view only to prevent grave hardship. The exercise of the discretion must be judicial".
In PLD 1964 Lah. 686, the Rent Controller had ordered ejectment of the appellant. Thus in this case the discretion had been exercised in favour of the power given to the authority. The learned Judge while interpreting the powers of the Rent Controller under Section 13(2)(a) held: "There may be a default and still the Rent Controller may refuse to pass an order of ejectment. The discretion to be exercised by him has to be based on judicial consideration and he has to take care that it is completely immune from the element of a personal whim and caprice. It cannot be said that the Controller has acted capriciously or arbitrarily in the present case."
In PLD 1965 Lah. 23, the Rent Controller has declined to eject a tenant but the District Judge on his ejectment. The tenant's second appeal was accepted by the High Court. The facts were gone into in second appeal and one of the reasons which influenced the Court in accepting the appeal was that the word 'may' used in section 13, subsection (2) conferred a discretion on the authority. His Lordship, however, pointed out:- "I feel that in the present case, on the type of the default alleged against the appellant, his eviction was discretionary with the Rent Controller. Because of the attending circumstances of this case, the discretion should have been exercised judicially and more appropriately in refusing the respondent's application".
11. There is another ruling under the same Act, PLD 1965 Kar. 468 by Mr. Justice Qudeeruddin Ahmad. In this case an application for ejectment of tenants was dismissed by the Rent Controller but the District Judge accepted the appeal and ordered their ejectment. The second appeals to the High Court were also dismissed. The main argument advanced in support of the order passed by the Rent Controller was that in view of the word ' may1, he had a discretion in the matter but it was not accepted by the High Court. The learned Judge quoted with approval the following passage from cotton, L.J In Baker, Nichols v. Baker(l): "'May' never can mean 'must' so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word may', it becomes his duty to exercise that power."
The learned Judge went on to say:- "The Judges must be knowledgeable and not whimsical men to be able to soundly interpret law because they have to get over the flaws of human language, which is the vehicle of legislative thought, as well as to get order the inevitable imperfections of legislative comprehensiveness".
12. In this connection, one may gratefully quote Lord Macmillan from a speech reproduced in the interpreted of Statute by Mr. Farani at page 842:- "I know for myself that for the past thirty years and more a great part of my daily business has been to give opinions, to argue or to decide as to the meaning of words. These disputes are by no means always barren logomachies. Great questions of principle may tum upon a word and valuable rights and interests depend on the meaning assigned to it. The difficulty of interpretation arises, as I have said, from the imperfection and inexactitute of language as a vehicle of ideas. If words are the currency of our business, they suffer from the defects which was always affected human currency.
Their value in exchange is unstable, and they not only undergo changes in time but at any one moment the precise content is often indeterminable"
13. An analysis of the rulings cited above would show that the word 'may' has in the following circumstances, been treated as a binding obligation on the authority invested with the permissive power:-
(1) When the power is given for benefit of persons who are specifically pointed out and the condition upon which it is to be exercised has also been provided for.
(2) If it is to effectuate a legal right.
(3) If it authorises the doing of a thing for the sake of justice.
(4) If it authorises the doing of a thing for public good.
(5) In the light of the consequences that would follow by construing it one way or the other." (PLD 1973 (AJK) 27).
14. In the light of criteria as laid down herein above and discussed in various judicial pronouncement it becomes crystal clear that the word 'may' as used in Rule 17 does not convey binding. Obligation to make the availability of Seconder or Proposer mandatory and the Proposer and Seconder may attend the scrutiny of nomination papers and on account of their absence the question of rejection of nomination papers does not arise. There is no cavil to the proposition that the Returning Officer may reject the nomination papers fro certain reasons as enumerated in Rule 17(3) and where the Proposer or the Seconder is not qualified to subscribe to the nomination papers but it this case the nomination papers were rejected due to the absence of Seconder which is not called for as no such mention has been made in Rule 17 which pertains to the scrutiny. In such view of the matter we have not been persuaded to agree with the contention of learned A.G.
That the word 'may' as has been used in Rule 17(1) conveys the meaning of 'shall' seems falicious and hardly deserves any consideration.
15. A similar proposition was examined in case Rafiq Phal v. Returning Officer and reported in PLD 1984 (Jour.) 150 wherein it was observed as follows:- "Taking into consideration now the rejection of nomination papers of the petitioner, it would be seen that rule 15 of the Punjab Local Councils (Election) Rules, 1979 nowhere lays down that a candidate, proposer or seconder must be present at the time of scrutiny. The rule is permissive and affords an opportunity to the persons mentioned there in to attend the scrutiny proceedings. The mere absence of the petitioner who was a candidate for contesting the election to the seat in question or of his proposer and seconder could therefore be no valid ground for rejection of his nomination especially when there is nothing placed on record to show that there was any objection raised to the candidature of the petitioner, or for that matter, his nomination papers suffered from any legal infirmity."
16. It is wroth mentioning that a similar view as mentioned therein above was formed by Division Bench of this Court in C.P. No. 1/97.
17. The upshot of the above discussion would be that there is no mandatory provisions under the relevant law or rules made thereunder making the presence of Proposer of Seconder mandatory and thus the question of rejection of any nomination papers on said score does not arise. We are, therefore, inclined to accept this petition and set-aside the order of Returning Officer dated 22.299 as well as the order of Appellate Authority dated 1.3.99 and resultantly the petitioner Abdul Karim son of Jumma is hereby declared as validly nominated candidate from ward No. 10 Town Committee Hub. The Returning Officer is directed to include his name in the list of validly nominated candidate. There shall be, however, no order costs.
18. There are the reasons for our short order dated 4.3.1999.