IN THE HIGH COURT OF SINDH, BENCH

AT SUKKUR

1. Election Appeal No.S-26 of 2016

[Mumtaz Ali Vs. Bakhshan Khan and 3 others]

2. Election Appeal No.S-27 of 2016

[Juman Vs. Zulfiqar Ali and 3 others]

Date of hearing : 14.05.2018

Date of Decision : _________

Appellants : Through Mr. Nisar Ahmed Bhanbhro,

Advocate.

Respondent No.1 : Through Mr. Amjad Ali Panhwar,

Advocate.

Mr. Muhammad Aslam Jatoi, Assistant Attorney General and Mr. Ali Mutahir Shah, State Counsel.

Law under discussion : (1) Sindh Local Government Act, 2013

(the “Election Law”),

(2) Sindh Local Councils (Election) Rules, 2015 (the “Election Rules”).

(3) The Representation of People Act, 1976, (ROPA)

(4). Civil Procedure Code (CPC)

JUDGMENT

Muhammad Faisal Kamal Alam, J: Through this Judgment both the title Appeals can be decided as they have commonality.

2. The Appellants of the present Appeals have challenged the orders dated 21.09.2016 handed down by the learned Election Tribunal at Khairpur in Election Petition No.16 of 2016 preferred by Mumtaz Ali, the present Appellant of Election Appeal No.S-26 of 2016 and Election Petition No.17 of 2016 preferred by present Appellant Juman son of Gulan, of Election Appeal No.S-27 of 2016.

3. Both the Appellants have contested Elections for the seat of Member General Ward No.2 of Union Council Rasoolabad, District Khairpur and Member General Ward No.4 of Union Council Rasoolabad, District Khairpur. In both these Appeals, the present Respondents No.1 are the respective returned / successful candidates, whose election has been challenged by the present Appellants on the grounds that both the Respondents have resorted to corrupt and illegal practices and their success in Election is the result of rigging and undue political influence exercised by these Respondents not only upon voters but also the Election Staff.

4. In both the Election Petitions, filed by the respective Appellants, specific allegations were also levelled against the Revenue Staff as well as area Station House Officer (SHO) but none of these persons were impleaded as Respondents. The learned counsel for the Respondent No.1 / returned candidate filed objections / Written Statement so also Application under Rule 64 of the Sindh Local Councils (Election) Rules, 2015 (the “Election Rules”), seeking dismissal of the Election Petitions, inter alia, on the ground that persons against whom allegations of corrupt practice and other illegalities have been levelled, were not impleaded as party and the Election Petition merits dismissal in view of non-compliance of Rule 61 of the Election Rules. The record shows that the learned Election Tribunal after hearing the arguments of both sides passed the above mentioned impugned orders.

5. Mr. Nisar Ahmed Bhanbhro, the learned counsel for the Appellants in both the Election Appeals, has argued that the impugned orders in both the Appeals suffer from illegality and the learned Election Tribunal failed to properly exercise the jurisdiction vested in it. He further argued that the compliance of Rule 64 was made as the allegations of corrupt and illegal practice resorted to by both the Respondents No.1 of the present appeals were specifically mentioned in the Election Petitions. Per learned counsel of the Appellants, all the contesting candidates were impleaded as party and the present Respondent No.1 also contested the matters before the Tribunal. The crux of the arguments of Applicants’ side is that non impleading of Polling Staff, the Presiding Officers and other concerned officials, against whom allegations were made in the Election Petitions, was not fatal, as the Election Tribunal could have inquired into the allegation of corrupt practices employed by the present Respondent No.1 by allowing both the parties to lead the evidence after framing of the Issues.

6. On the other hand, Mr. Amjad Ali Panhwar, Advocate, while representing the Respondent No.1, has made submissions contrary to what has been argued by the Appellants. It has been contended by the learned counsel for the Respondent No.1, that the impugned orders were passed after application of proper judicial mind and the same do not suffer from any illegality. It is argued that Rule 61 of the Election Rules is quite specific and since it provides a consequence, the said Rule is also mandatory in nature. He requests for the dismissal of these appeals.

7. Arguments of the learned counsel for the parties have been taken into the account and the record of present Appeals and those of Election Petitions No.16 and 17 of 2016 is examined.

8. It would be advantageous to reproduce Rules 61 to 64 of the said Election Rules herein under:

"61. The Petitioner shall join as respondents to his election petition-

(a). all contesting candidates; and

(b). any other person against whom any allegation, if any, of corrupt or illegal practice is made and shall serve personally or by courier service or registered post on each such respondent a copy of his petition.

62. (1) Every election petition shall contain-

(a) a precise statement of the material facts on which the Petitioner relies;

(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and

(c) the relief claimed by the petitioner.

(3). Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings.

63.(1). For the trial of election petitions under these rules, the Election Commission shall appoint as many Election Tribunals as may be necessary.

(2). A Tribunal shall consist of a person who is or has been a District and Sessions Judge or Additional District and Sessions Judge.

64. If the Tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission."

(Under lined to add emphasis).

9. In paragraph-10 of both the Election Petitions, the present Appellants have levelled identical allegations of corrupt practices and illegalities committed by the present Respondents No.1 (Returned Candidates of both Appeals); that they were supported by the Government Machinery from Patwari to Mukhtiarkar and other Police Officials including the area SHO. Sub Rule (b) of Rule 61 (ibid) clearly requires that a person against whom an allegation of corrupt and illegal practice is made shall be joined as Respondent and will be served with the copy of the Petition, whereas, sub Rule (a) of Rule 61 enjoins that all the contesting candidates should be impleaded as Respondents. Even though first condition has been complied with by the present Appellants by impleading all the contesting candidates as Respondents, but at the same time, sub Rule (b) has been violated. The concerned Mukhtiarkar and SHO, at least in my considered view, should have been impleaded as Respondents because both these officials are identifiable, inter alia, because against them specific allegations are levelled, therefore, they had to be impleaded as Respondents in order to comply the requirements of Rules 61 of the Election Rules.

10. Rule 64 of the Election Rules provides a consequence that in case the Election Petition is not instituted / filed while complying the Rules 61, 62 and 63, then said Election Petition is liable to be dismissed. This Court in number of its earlier decisions has already interpreted and held that since Rule 64 provides a consequence, therefore, it is mandatory to follow Rules 61, 62 and 63 of the Election Rules while filing the Election Petition of the nature. In the earlier Judgment handed down in number of appeals, Election Appeal No.3 of 2017 being the leading one having title Jam Javed Ahmed Khan Dahar versus Haji Muhammad Akbar and 14 others, this Court has discussed in detail the reason that why these provisions are mandatory; it would be advantageous to reproduce the said discussion herein under_

“19. After thoughtfully considering this legal aspect, it was held that like a statute, if the statutory rules also provide a consequence, then they should also be interpreted as mandatory. Relevant portion of the referred unreported Judgment is mentioned herein under:

“11. I have given a thoughtful consideration to the above proposition of law. Undoubtedly, afore-referred Election Rules have been framed under the statute; SLGA 2013. Going through different treatises on the Interpretation of Statutes, the position, which emerges is that if the Rules are framed under an enabling clause of a main statute then such Rules become Statutory Rules and are to be considered part and parcel of the Statute; consequently, such Statutory Rules then deserve to be governed by same principle of interpretation which is applicable to the Enactment itself. Meaning thereby that if a Rule provides a penalty or punishment for its non-compliance, then that Rule shall be interpreted as a mandatory Rule. It is also necessary to give reference of well-known commentaries on the above point of law (i) Understanding Statutes ‘Cannons of Construction’ by Mr. S. M. Zafar, Second Edition (2002), relevant pages-783 and 784, and the relevant paragraphs whereof are reproduced hereunder: -

“. . . . . . . . . . Statutory rules stand on a different footing. Though a byelaw must not be repugnant to the statute or the general law, byelaws and rules made under a rule-making power conferred by a statute do not stand on the same footing as rules are part and parcel of the statute. Parliament or Legislature instead of incorporating them into the statute itself ordinarily authorizes Government to carry out the details of the policy laid down by the Legislature by framing rules under the statute and once the rules are framed, they are incorporated in the statute itself, and become part of the statute and the rules must be governed by the same rules as the statute itself. Hence, a statutory rule cannot be challenged as unreasonable.”

“Mandatory and Directory rules:

A rule is mandatory if violation thereof entails any penalty or punishment. If non-compliance of a rule entails no penalty, rule is directory. Act done in disregard of a mandatory provision of law or rule is only invalid and unlawful. Such is not the case where only some rule of directory nature has been violated.”

(Underling is to add emphasis)

and (ii) NS Bindra’s, Interpretation of Statutes, Ninth Edition, the relevant paragraph whereof is reproduced hereunder: -

“ The right to hold an election, to stand in an election, and to be elected thereto as commissioner, are all rights which spring under the statute. There is no common law right which is involved. Therefore, the provisions of the Act and the rules made there under must be strictly followed in constituting the municipality and in regulating the functions thereof. Similarly, a disqualifying or disabling provision of law, for instance election rules, must be subject to strict construction.”

(Underling is to add emphasis)

12. Secondly, the Honourable Supreme Court of Pakistan in one of its reported Judgments, viz. P L D 1985 SC 282 (Shah Muhammad Vs. Election Tribunal, Urban Local Council, Christian and others), after taking into account various case laws, has interpreted the provisions of Punjab Local Council (Election) Rules, 1979 to be mandatory in nature and held as under: -

“. . . . . . . . Thus there is no escape from the conclusion that the law requires that every ballot-paper must be signed by the Presiding Officer, and when the ballot-boxes are opened for the purpose of counting the ballot-papers, all these ballot-papers which do not bear the signatures of the Presiding Officer must be excluded. These provisions are express and categorical and there is no scope for considering these provisions to be of a directory nature.” (Underlining is to add emphasis)”

13. Thirdly, even in the above mentioned reported case of Zia-ur- Rehman Vs. Syed Ahmed Hussain and others(2014 SCMR 1015), the Honourable Supreme Court in paragraph-7 has held, that when the law prescribed certain form for Election Petition and its verification on oath and entails a penal consequence for its noncompliance, the provision is to be interpreted as mandatory. It is also a settled Rule that the term “Law” is of wide import and it does include the Statutory Rules. Fourthly, the relevant law in the instant case is the SLGA 2013 and its Section 46 pertains to Election Petitions. It would be advantageous to reproduce Section 46 of SLGA 2013 as under: -

“46. Election petition.- (1) Subject to this Act, an election to an office of a council shall not be called in question except by an election petition.

(2) A candidate may, in the prescribed manner, file an election petition before the Election Tribunal challenging an election under this Act.”

14. From the above, it is not difficult to ascertain the mandate of law, that is, the governing statute SLGA, which enjoins that Election Petitions are to be filed in the “Prescribed Manner”. This term ‘Prescribed’ is mentioned in the definition clause of the said SLGA 2013; Section 2 (lii), which means Prescribed by Rules. It means that the Election Petitions are to be filed as mentioned in the relevant Election Rules, which have already been referred to in the preceding paragraphs. If the main Statute-SLGA 2013 had contained the provisions about verification of Petitions / Pleadings without a consequence or penalty, then the arguments of learned counsel for the Appellants would have been sustained, that if the main Statute is not providing a penal consequence then the Rules governing the same subject cannot travel beyond the express statutory provisions. But here the undisputed factual and legal position is altogether different. It is basically the Election Rules, which regulate the proceedings at the Election Tribunals and the Rule 65 in an unequivocal term has provided a penalty / penal consequence of dismissal of petition if the same is not filed in compliance of Rules 60 to 63 of the Election Rules 2015. The above legal position with regard to the status of Statutory Rules is further reinforced by another learned Division Bench Judgment of this Court reported in PLD 1984 Karachi 426 (ShahenshahHumayun Co-operative Housing Society Ltd., and 2 others Vs. House Building Finance Corporation and another), wherein, it has been held, inter alia, that if the rule-making authority validly frames / makes Regulations then such Regulations which are intra vires, be regarded as part of the enactment itself. In a subsequent decision of this Court reported in PLD 1992 Karachi Page-302 (Saeeduddin Versus Third Senior Civil Judge, East, Karachi), the above principle relating to the mandatory nature of the statutory rules has been reiterated.”

20. In view of the above, since Rule 64 of the Election Rules is mandatory in nature, therefore, non-compliance of Rule 61 by not impleading the above named SHO against whom specific allegations were levelled, the Election Petition No.13 of 2015 suffered from a non-curable defect and is not maintainable. Despite giving an adverse observation about the impugned order in the foregoing paragraphs, the present Appeal cannot be accepted, in view of the above discussion, therefore, the present Appeal No.09 of 2016 is also dismissed.”

11. Similarly serious allegations were levelled against the Polling Staff that they helped (purportedly) both the Respondents / returned candidates of the subject Appeals in winning the Elections, but none of the Polling Staff has been impleaded as Respondents. The other claim of both the Appellants in the subject Appeals about the returned candidate / private Respondents is that they are defaulters of utility bills, but no tangible evidence was produced by the Appellants.

12. Perusal of both the impugned orders in the subject Appeals show that the said orders were passed after application of judicial mind, inter alia, considering the mandatory requirements of said Election Rules, therefore, both the impugned orders passed in the aforementioned Election Petitions are unexceptionable and does not require any interference. Accordingly, both these Election Appeals are dismissed.

13. Parties are left to bear their own costs.

JUDGE

Sukkur

Dated 03.09.2018.

M.Javaid.P.A.