MUHAMMAD HASHIM Versus PROVINCIAL ELECTION AUTHORITY, SIND

S.A. NUSRAT, J.‑‑ This appeal by special leave is from the judgment of the Sind High Court, dated 9‑1‑1984 whereby a Constitution Petition of the fourth respondents was allowed with a direction for holding fresh election in respect of K.M.C. Electoral Unit No. 144.

2. The brief facts of the case are that the appellant and the fourth respondent (hereinafter referred to as the respondent) were contesting candidates alongwith others in respect of K.M.C. Councils Election from K.M.C. Unit No. 144. The said election was held on 29‑9‑1983 and the appellant was declared successful on 1‑10‑1983 on the basis of majority votes cast in his favour.

3. Prior to the holding of elections, the work of delimitation of constituencies was carried out by the delimitation officer, i.e.. Commissioner, Karachi, in respect of K.M.C. Unit No. 144 which included block Nos. 19, 20 and 22 of the Federal 'B' Area, Karachi. However, in the notification, dated 18‑7‑1983 published in the Gazette, dated 2‑8‑1982 the Block No. 22 Federal 'B' Area was not mentioned and the constituency was described as under:‑

"KMC‑144 UC‑124 Part Block Nos. 19 and

20 of F.B. Area"

4. The respondent having lost the election filed a constitutional petition in the Sind High Court and his main contention in the petition was that the omission of Block No. 22 in the Gazette notification in respect of the disputed constituency and the inclusion of the said Block in the statement showing the names of polling stations issued on 25‑9‑1983 by the respondents Nos. 2 and 3 amounted to material errors committed by the respondents Nos. 1, 2 and 3, and had led to confusion amongst the voters resulting in low exercise of franchise by the voters of Block No. 22. It was further alleged that no separate polling station was provided for Block No. 22 itself which further gave impression to the voters of the said block that their area was excluded from K . M. C . Unit No. 144. On such premises it was asserted that the proceedings taken by the respondents Nos. 1, 2 and 3 in holding election in respect of the electoral unit in question were done/taken without lawful authority and were of no legal effect.

5. The above contentions found favour with the learned High Court and the petition of the respondent was accordingly allowed as per impugned judgment.

6. Leave to appeal was granted to examine the following contentions raised on behalf of the appellant:‑‑

(1) whether interference in the case was not permissible in the exercise of constitutional jurisdiction by the High Court as an equally efficacious remedy by way of an election petition was avaliable;

(2) whether even otherwise the High Court should not have interfered with the appellant's election unless it was shown that the result of the election had been materially affected due to the alleged illegality and since finding in this regard could not have been reached without permitting the parties to lead evidence recourse to constitutional proceedings was not warranted; and

(3) whether the respondent having himself contested the election in spite of being aware of the alleged illegality was precluded from seeking the relief prayed for.

7. As mentioned above, the case of the respondent in the High Court was that the omission of Block No. 22 in respect of K. M. C . Electoral Unit No. 144 in the Gazette notification was illegal and the same had resulted in creating confusion amongst the voters and thereby the entire election was vitiated in respect of the said constituency.

8. It was contended by Mr. Fakhruddin, G. Ebrahim, learned counsel for the appellant, that rule 65 of the Sind Local Councils (Election) Rules, 1979 (hereinafter referred to as the Rules), provides that "no election shall be called in question except by an election petition made by a candidate for that election therefore, no interference in the matter eras permissible in the exercise of constitutional jurisdiction by the High Court; more particularly when an equally efficacious remedy by way of an election, petition provided under law was available to the respondent. Rule 65 referred to by the learned counsel is as under:‑

"65.(1) No election shall be called in question except by an election petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner).

(2) An election petition shall be presented to the Election Authority within sixty days of the publication in the official Gazette the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited in a Scheduled Bank in favour of the Election Authority as security for the costs of the petition a sum of five hundred rupees.

(3) An election petition shall be presented by a petitioner and shall be deemed to have been presented:‑

(a) when it is delivered in person to such officer as may be appointed by the Election Authority in that behalf by the petitioner; or by a person authorised in this behalf by the petitioner; or

(b) when delivered by registered post to the officer of the Election Authority or to the officer as aforesaid."

9. On the other hand, it was contended by Mr. Khalid M. Ishaq, learned counsel for the respondent No. 4, that the dispute involved in the case fell beyond the scope of an election petition as provided in rule 65 of the Rules and therefore, the relief through a Constitution Petition was rightly sought by the respondent which was duly granted.

10. Both the learned counsel referred to several judgments for and against the proposition advanced by them but we would refrain from going into this controversy as we have chosen to decide the appeal on different considerations and also because this question has not been examined by the learned High Court and we do not have the benefit of its opinion on this issue.

11. The procedure for delimitation of electoral units is provided in Chapter III of the said Rules. Rule 8 provides that for the purpose of election a local area shall be divided into electoral units in the manner provided in the Rules. Rules 9 and 10, which are relevant for the purpose of appreciating the contentions raised in this appeal, are reproduced hereunder:‑

"9. (1) The Election Authority shall arrange to have a preliminary list of electoral units delimited under rule 8, published in such manner as it deems fit, together with a notice inviting objections or suggestions within such time as may be specified by the Authority.

(2) Any person entitled to vote at an election may, within specified time make a representation in respect of the delimitation of the electoral units, to such Officer or authority, as the Election Authority may appoint in this behalf.

10. (1) The Election Authority or any member thereof if so empowered by the authority may after considering the representa tion and hearing those who wish to be heard make such amendments, alterations or modifications in the preliminary list published under rule 9 as deems fit:

Provided that the Member dealing with any representation may, if he thinks it appropriate, refer it to the Election Authority for decisions.

(2) After disposal of all representations made under sub‑rule (1), the Election Authority shall arrange to have the final list of electoral units published in the official Gazette or inn cams urgency in such manner as it deems it.'

12. It has not been disputed before us that for the purpose of elections, which were scheduled to be held in September, 1983, the work of delimitation was duly carried out by the Delimitation officer, i.e., the Commissioner, Karachi, and in the preliminary list of units, Block No. 22 was duly mentioned as part of K.M.C. Unit No. 144. As no person entitled to vote at the election had preferred any representation within the specified period in respect of the delimitation of the electoral unit, as embodied in the preliminary list, the question of considering any representation or hearing those who wished to be heard in the matter, as required under sub‑rule (1) of rule 10, did not arise, and as such the preliminary list thus stood finalized.

13. The precise question for consideration, therefore, is whether the constituencies come into existence or stand delimited only upon the publication of the final list as required in rule 10(2) of the Rules and what is the effect of non‑publication of the final list in the official Gazette as required by sub‑rule (2) of rule 10 of the Rules.

14. The petition in the High Court was contested by the official respondents who had filed their comments. It was stated in the comments that Block No. 22 was omitted in the official Gazette due to clerical error committed by the Office of the Deputy Commissioner, Karachi (West), but the said Block continued to be a part of the disputed constituency and the area of the same was not included elsewhere; that polling station for Block No. 22 was provided within the constituency K.M.C. 144 and the list of such polling stations was notified on 25th September, 1983 by the Deputy Commissioner as required under the law; and that in all documents published for public use by the Deputy Commissioner/ Returning Officer Block No. 22 was shown as part of K.M.C. Unit No. 144. As regards the less number of votes cast, it was stated that this was not an exception for Block No. 22 alone. The allegation regarding any confusion having been created in respect of delimitation of K.M.C. Unit No. 144 by the omission of the Block No. 22 from the Gazette notification was categorically denied and it was stated that the same had no effect on the election, "as the copy notified for public use contained Block No. 22".

15. Admittedly the respondent and the other candidates had expressly mentioned Block No. 22 as being part of K.M.C. Unit. No. 144 in their nomination papers filed for election to the said constituency. The appellant has filed newspaper cutting of daily 'Jasarat' dated 12‑9‑1983 in which the respondent had himself shown Blocks Nos. 19, 20 and 22 Federal 'B' area as forming part of K.M.C. Unit No. 144. On the basis of such facts it was asserted by the official respondents as well as the appellant that no confusion was created whatsoever as a result of the Muhammad Hashim v. Provincial Election Authority omission of Block No. 22 from the final list of electoral units published in the official Gazette dated 2‑8‑1983.

16. We have anxiously examined the contentions raised by the learned counsel for the parties. The words used in sub‑rule (2) of Rule 10 are that the Election Authority shall arrange to have the final list of electoral units published in the official Gazette or in case of urgency in such manner as it deems fit after considering the representation made under sub‑rule (1) sub‑rule (2) of rule 10, therefore, itself envisages the existence a final list of electoral units already finalized because unless there is a final list the question of its publication would not arise. It, therefore, follows that the constituencies stand delimited after the procedure laid down in Rules 9 and 10(1) is duly complied with. The publication of final list of electoral units in the official Gazette is not a mandatory requirement of Rule 10(2) of the Rules as the same also allows the Election Authority to arrange its publication in case of urgency in such manner as it deems fit. This shows that the requirement in the Rule regarding publication of the final list of electoral units is intended to convey information in some authentic manner regarding delimitation of constituencies to the electorate. The Rule does not provide that in consequence of non‑publication of the final list of the electoral units in the official Gazette the delimitation of constituencies as per final list already finalized is undone or rendered ineffective.

17. The finding of the learned High Court in the impugned judgment is that since the statement of polling stations, dated 25‑9‑1983 was not issued by the Election Authority itself the same also could not be considered to be a final list of electoral units approved by the Election Authority and published as required by section 36 read with Rule, 10(2) of the Rules. But as discussed above, the constituencies gets delimited upon the finalization of the list after the procedure laid down in Rules 9 and 10(1) is complete and the same is not dependent upon publication of final list in the official Gazette.

18. The contention of the respondent that by not providing a polling station in the Block No. 22, the Deputy Commissioner had violated the mandatory provisions of rule 14, has also no force whatsoever. This contention appears to have been accepted by the learned High Court without examination and any discussion in the impugned judgment and regarded as a further ground affecting the elections. The said rule 14 of the Rules is as under:‑

"14. (1) The Returning Officer shall before such time as the Election Authority may fix, Submit to the Election Authority and Deputy Commissioner a list of polling stations which he proposes to provide in an electoral unit for the purpose of election of a member or members for that unit.

(2) The Election Authority or the Deputy Commissioner under intimation to the Election Authority may make such alterations in the list of polling stations submitted under sub‑rule (1) as it may consider necessary.

(3) The Deputy Commissioner shall, at least four days before the polling day, publish the final list of polling stations, specifying the area the electors whereof will be entitled to vote at each polling station.

(4) The Returning Officer shall provide each electoral unit with polling stations according to the final list published under sub‑rule (2).

(5) No polling station shall be located in any such premises as belong to, or are under the control of, any candidates."

19. According to sub‑rule (1) of the above Rule polling stations are to be provided by the Returning Officer in an electoral unit. The deputy Commissioner, after amendments, if any, as envisaged in sub‑rule (2) is then required under sub‑rule (3) to publish a final list of polling stations specifying the area the electors whereof will be entitled to vote at each polling station. Again sub‑rule (4) speaks of providing each electoral unit with polling stations according to the final list published under sub‑rule (2). It is nowhere laid down in the Rule that each block or constituent of an electoral unit should be provided a polling station though it is permissible to provide more than one polling station for an electoral unit. A list of polling stations was duly issued published by the Deputy Commissioner on 25‑9‑1983 in respect of K. M. C . Electoral Unit No. 144 and a polling station was provided at Rahat‑e‑Islamia, G.G.S.S., Federal 'B' area, which mentioned Blocks Nos. 19, 20 and 22 thus specifying the area the electors whereof were entitled to vote at the said polling stations.

20. The next question which requires consideration is regarding the effect, if any, on the election itself on account of non‑publication of the final list in the official Gazette. The learned High Court, in spite of denial of the allegation of the fourth respondent in his petition by the appellant and the official respondents as set out hereinabove thereby raising factual disputes, has recorded a finding that the casting of low number of votes by the registered voters of Block No. 22 was due to confusion created by the Gazette notification and non‑providing of polling station in the block itself and these factors had materially affected the result of elections of the said constituency. Such a finding is clearly one of fact which could not have been arrived at without evidence and investigation into facts. This indeed was not permissible, as rightly contended by the learned counsel for the appellant, in the exercise of constitutional jurisdiction by the High Court and was a matter which could be decided only through an election petition.

21. Since the appeal any how succeeds, it is no longer necessary to advert to the contention raised on behalf of the appellant that the respondent having himself contested the election without raising any objection whatsoever regarding any alleged illegalities having been committed in the matter by the official respondents was precluded from seeking the relief prayed for.

22. For the reasons mentioned above, the appeal is allowed with costs and the impugned judgment is set aside with the result that the declaration granted and direction issued by the learned High Court shall stand recalled.

M. I. Appeal allowed.