M. S.ABID ALIAS MOHAMMAD ABID Versus PROVINCIAL ELECTION AUTHORITY

ORDER

FAKHRUDDIN H. SHAIKH, S. -The above two petitions involve common points of law, hence are being decided by this order. In C. P. D-421/82 the petitioner has challenged the order of the Election Authority Annexure `A') whereby its Chairman had forwarded the election petition filed by respondent No. 2 under -the provisions of Sind Local Council (Election) Rules, 1979 (hereafter referred as the Election Rules) to the Election Tribunal (District and Sessions' Judge/Additional District and Sessions Judge) Karachi for disposal according to law. This order was passed by the Chairman of the Authority in pursuance of a direction of this Court in an earlier constitutional petition being C. P. No. 962/1981 filed by the present petitioner against the' same respondents. In that petition, which wag decided by a D. B. of this Court on 16th November, 1981 the election petition of the present respondent No. 2 was remanded to the Election Authority- "to decide the question of maintainability first with reference to rules 66 and 67 of the Rules in accordance with law, before referring-the same to respondent No. 2 under rule 68(2) of the Rules."

1n compliance with the above order, ' the Chairman of the Election Authority issued notices to the contesting parties i.e. S. .M. Abid (the present petitioner) and Ch. Saeed Ahmed (the present respondent -No. 2) and heard them about the question of maintainability of the election petition under the Election Rules. The Chairman found that the petition suffered from some defects in so far as all the contesting candidates were not joined as parties and the petition and annexures were not signed and verified by the petitioner himself as required by rules 66 and 67 of the Election Rules. 'The Chairman, instead of dismissing the election petition of respondent No. 2, allowed the latter to rectify the defects in the petition by joining the necessary parties and also by signing and verifying the petition and the annexure, by the impugned order (Annexure `A')..

2. The said order has been attacked on, inter alia, the following grounds by Mr. Mobsin Tayabali, learned counsel for the petitioner

(1) That the Election Authority had no power to allow a petitioner to rectify the defects in election petition in respect of non-compliance of rules 66 and 67; ..

(2) That there was no alternative for the Election Authority but to dismiss the election petition under section 68(1) of 'the Election Rules as soon as he came to the conclusion that the election petition was defective on account of non-compliance with any of the provisions of rules 66 and 67;

(3) That the Chairman of the Election Authority alone had no power to discharge the functions of the Authority in respect of forwarding a petition to the Election Tribunal which power could have been exercised under section 34(1) of the Sind Local Government Ordinance, 1979, by the Authority alone;

(4) That the Election Authority could not have allowed the petitioner (respondent No. 2) before trim to join certain parties as respondents after the expiry of period of limitation of 60 days prescribed . by rule 66 of the Election Rules for filing such petition;

(5) That rule 6 of the Election Rules delegating the powers of the Authority to the Chairman, was ultra vires of section 34(1) of the Ordinance of 1979; and

(6) That the Chairman of the Authority had no power to authorise the District Judge to transfer the election petition to any Additional District Judge.

3. The facts pertaining to C. P. D-456/82 are that petitioner Muhammad 7akir Qureshi and respondents Nos. 1 to 17 had contested election in U. C. No. 116, K..M. C. No:

140. Petitioner was, in consequence of the election, declared as successful candidate having polled, the highest number of votes. Respondent No. 1 Muhammad Saeed Khan being dissatisfied with the conduct of the election, filed an Election Petition No. 373/79 before the Election Authority (respondent No. 24), who assigned the same to Election Tribunal (respondent No. 25) for disposal according to law. The Tribunal by his order dated 19-8-1980 held that the petition was not maintainable for want of compliance of mandatory provisions of rules 66, 67' and 68 of the Sind Local Council (Election) Rules, 1979. Consequently the learned Tribunal dismissed the Election petition.

Respondent No. I challenged .the said order of the Tribunal before this Court by Constitutional Petition No. 150/80 which was decided by a Division Bench of this Court on 17-12-1981. The Division Bench was of the view that the question of maintainability or otherwise of an Election petition, can be decided only by an Election Authority and not by the Election Tribunal. The order of the Tribunal was, therefore, set aside and the petition was remanded to Provincial Election Authority with the following direction "As the question of maintainability, was not considered at all by the Provincial Election Authority, we also set aside the order dated 30-10-1979 of the Provincial Election Authority and declare that Election Petition No. 373/79 filed by the petitioner shall be deemed to be pending before the Provincial Election Authority who shall first decide the question of maintainability of the said Election Petition with reference to rules 66 and 67 of the Rules in accordance with law before referring the same to the Election - Tribunal under rule 68(2) of the Rules."

In compliance with the above order the Chairman of the Provincial Election Authority issued notices to the contesting parties, that is, the present petitioner and respondent No. 7 and after hearing them on the question of maintainability, passed an elaborate order on 30-3-1982 holding that the petition was maintainable. Consequently the same was forwarded to the Tribunal for disposal according to law. This order of Chairman has been challenged by the petitioner in the present writ Petition No. D-:456/82 on various grounds. '

4. So far as the C. P. No. 421 of 1982 is concerned learned counsel for the petitioner Mr. Mobsin Tayyabali has referred to rules 66 and 67 of the Election Rules and argued that non-compliance with any of the provisions of these rules, shall entail the penalty provided in rule 68(1) i.e. the Elec tion. petition shall have to be dismissed by it. In the present case the defects which *were allowed to be - rectified were (a) non-joinder of all the candidates who had contested the elections, as respondents in the petition and (b) absence of signatures of and verification by the petitioner .i.e. the present respondent No. 2 on the petition and the annexures. So far as the joinder of the several candidates besides the petitioner, who had contested the, disputed elections, as parties to the petition, is concerned, it may stated that all of them had secured insignificant number of votes; hence the, non-joinder would not have materially affected the result of the election petition. Non jotnder of such persons as parties was very technical and minor defect, which in our view would not vitiate the order of the Election Authority regarding maintainability of the election petition.

5. It will be pertinent to observe that non-compliance with any of the provisions of rules 66 and 67 'shall not automatically result in dismissal of the Election petition under rule 68 (1) of the Election Rules. According to this rule, dismissal of the petition has been made subject to the satisfaction o: the- Election Authority that the petition suffers from such defects as_ are envisaged by rules 66 arid 67. The words "if the Election Authority is satisfied" appearing in rule 68(1) indicate that non-compliance simpliciter with provisions of rules 66 and 67 shall not result lit dismissal of the Election Petition. The Election Authority is not supposed to act mechanically. It has to satisfy itself that there has been substantial non-compliance with the provisions of rules 66 and 67, before it dismisses the petition. If- it is not so satisfied, it may hold that petition to be maintainable, notwithstanding minor or technical defects. By making cite dismissal of the petition subject to satisfaction of the Authority, the Election Rules have empowered the e Authority to permit rectification of minor or technical defects in the petition.

6. Reference has been made in this connection to the case of S. M. AyuS v. Yusaf Shah and others ((1)PLD1967SC486), by the learned Chairman of the Election Authority in the impugned order for holding that defects of a very technical nature in Election petition should not be considered to render Election petition as non-maintainable. In the above case appellant S. M. Ayub had challenged the maintainability of the petition filed by the respondent Syed Yusaf Shah before the Election Tribunal on the ground that the petition was defective inasmuch as several provisions of section 59 of the National and Provincial Assemblies (Election) Act, 1964 (hereinafter referred to as the said Act) were not complied with. It was further urged that in view of the above non compliance the only order which the Election Tribunal could have passed under the said Act, was dismissal of the Election petition under section 67 of the said 'Act. It may be stated here that section 59 as almost identical with rules 66 and 67 of the Sind Election Rules, while section 67 of the said Act is identical to rule 68(11 of the above Rules. The Election Tribunal rejected the objection as to maintainability of the Election petition and refused to dismiss the same under section 67 of the said Act. This order of the Tribunal was challenged by Yusaf Shah in the High Court who accepted the plea of Yusaf Shah and held that the Election petition was liable to be dismissed due to non-compliance of the provisions of section 59 of the said Act. On appeal by S. M. Ayub to Supreme Court, the order of the High Court was set aside and following observations were made by S. A. Rehman, J. who delivered the judgment, as to the effect of non compliance with section 59 of the said Act:

"The law does not appear to display a perfectionist attitude in this behalf and it seems to us, with reason. The law of pleading has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints and petitions drafted, specially in the mofussil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. Unless, there ore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, should be astute not to ascribe the Courts to the Legislature a desire to be hypertechnical so as to smother genuine litigation."

7. In our opinion above observations are fully applicable to the) present case. The non-joinder of unimportant parties was defect of a~ very minor and technical nature and so also the absence of signature of the petitioner (the present respondent No. 2) on the Election petition, which c was signed by his Advocate. There is nothing in the Election Rules to prevent the Election Authority from permitting a petitioner to sign a petition or to verify a petition after it has been filed. Action of the Election Authority in the present case permitting respondent No. 2 to sign and verify the plaint and annexures would not, in our opinion, amount to any illegality or irregularity so as to vitiate his order.

8. The main. ground which has been tai by the petitioner to challenge the order of the Election Authority is that the impugned order was passed by the Chairman of the Election Authority and that in view of the provisions of section 34(1) of ;1,e Sind Local Government Ordinance, 1979 (hereinafter referred to as Ordinance of 1979) the Chairman alone could not have discharged this function on behalf of the Authority. It was further argued that rule 6 of the Election Rules, which purports to delegate the powers of the Election Authority to the Chairman in respect of all or any of the functions D under the rules, is ultra vires of section 34(1) of the Ordinance of 1979 read with section 103 thereof. Section 103 empowers the Government to make rules to carry out the purposes of the Ordinance of 1979. It further provides that without prejudice to the generality of the above provisions, the Government may make rules to provide for matters enumerated in Schedule VII of the Ordinance of 1979. Now section 34(1) of the Ordinance of 1979 provides that Election Authority shall exercise such powers and perform such functions in such manner as may be prescribed. It has been argued by Mr. Mohsin Tayyabali, learned counsel for the petitioner, that under rule 6 of the Election Rules what has been provided is that the Chairman shall have the authority to perform the functions of the Election Authority. This Rule, according to the learned counsel, is inconsistent with section 34(1) of the Ordinance of 1979, which permits the Government to make Rules only to provide for the manner in which the Election Authority may discharge its functions and that it does not permit making or rules as to who shall perform such functions. We are unable to subscribe to the view canvassed by the learned counsel for the petitioner. Delegation of powers by Election Authority to any of its members to perform the functions of the Authority, is also a provision in respect of the "manner in which the Authority" may perform its functions. Learned counsel for the State, Mr. Abdul Sattar Shaikh, Additional Advocate-General has, in this connection, referred to section 105 of the Ordinance of 1979. Sub section (1) of the said section says that all rules and bye-laws made under this Ordinance shall be deemed to form part of the Ordinance. Rule 6 referred to above, therefore, shall be deemed to be a part of the Ordinance. It shall have the same force as any other provisions of the main Ordinance. We do not find any inconsistency between rule 6 and section 34(l) particularly in view of section 105(?), by virtue of which the said rule 6 shall be deemed to be it part of the main Ordinance, We are, therefore, of the view that the Election Authority had the power under rule 6, to delegate the functions of the Authority to the Chairman. One of such functions delegated to the Chairman was to consider maintainability of Election petitions and to refer the same to the Tribunals for disposal. We, therefore, reject the objection of the learned counsel for the petitioner that rule 6 of the Election Rules is ultra vires of section 34(1) of the Ordinance of 1979. -

9. The n 1 objection that the Election Authority of for that matter its Chairman, could not have allowed respondent No. 2 to amend the election petition by joining other contesting candidates as parties after the expiry of 60 days prescribed by rule 66 of the Election Rules. . We have already held that even if other contesting candidates had .not been joined as parties, the result of the election petition would not be materially affected because they were not, strictly speaking, necessary parties. They had secured in significant number of votes and had not taken any objection to the result of the election in which the petitioner was declared successful. This objection, in our view, is also of a technical nature which, according to G the law laid down by Supreme Court referred to above, shall not be allowed to vitiate the order of the Authority.

10. It has been lastly urged that the learned Chairman, had no power to authorise the District Judge to transfer the election petition to any Additional District Judge. This objection has no substance .in view of amendment in rule 69(2) of the Election Rules, according to which the Authority may appoint a District Judge or an Additional District Judge as the Tribunal. If the Authority could remand the case to a District Judge, it could as well have remanded it to any Additional District Judge. By authorising the District Judge to decide the petition of the petitioner by himself or to transfer it to any Additional District Judge, the Chairman shall be deemed to have appointed the Additional District Judge to whom K the petition is so transferred, as the Tribunal. Moreover the definition of District Judge as given in section 3(13) of General Clauses Act, 1897 include Additional District Judge, as held in the cases of Bezarua v. State of Assam (A I R 1954 Assam 161) and Amubi Singh v. Thanil Singh (A I R 1964 S C (Manipur) 35). The order of the Chairman cannot, therefore, be set aside on this ground. This petition therefore has no merit.

11. Mr. Nasim A. Farooqui, learned counsel for the petitioner in C. P. No. 456,182 has adopted the above arguments urged by Mr. Mohsin Tayyabali and contended that the Chairman alone was not competent to discharge the functions of Election Authority and that rule 6 of the Sind Local Councils (Election) Rules, 1979 under which the functions of the Authority were delegated to the Chairman, was ulna vires of section 34(1) of the Sind Local Government Ordinance, 1979. We have already held above that rule 6 is not ultra vires.

12. For the above reasons we are of the view that the impugned orders of the learned Chairman of the Election Authority, holding the election petition of respondent No. 2 to be maintainable, are unexceptionable. These petitions are, therefore, dismissed in limine.

X. M. A. Petitions dismissed.