1999 PLP 244 (MLD)

ASIF SAEED KHAN KHOSA, J.

In the recently-held elections to the local councils in the Province of the Punjab, Malik Ahmad Khan petitioner had filed his nomination papers for election to the District Council, Mianwali from its Ward No.23, Muzaffarpur Junubi. It was claimed by him in his nomination papers that his name appeared at Serial No.662 of the electoral roll maintained for Ward No.6/1, Muzaffarpur Janubi within the area of the said District Council. On 15-5-1998 the petitioner's nomination papers were accepted by the Returning Officer at the time of scrutiny without any objection having been raised by anybody there against. However, on 22-5-1998 Fateh Khan, a rival candidate of the petitioner and respondent No.3 herein, filed a petition (No.75-G) under section 17 of the Punjab Local Government Ordinance, 1979 before the Punjab Local Councils Election Authority, respondent No.1.herein. challenging the acceptance of the petitioner's nomination papers by the Returning Officer. That petition was subsequently dismissed by respondent No.1 on 26-5-1998 after hearing the petitioner and respondent No.3. The election to the said constituency was scheduled to take place on 30-5-1998. On 28-1-1998 respondent No.3 filed an application (Civil Miscellaneous No.1/98) before respondent No.1 in his already dismissed petition seeking reversal of the order already passed by respondent No.1 on 26-5-1998. It has not been dispute before us that without issuing any notice to the petitioner the said miscellaneous application of respondent No.3 was accepted by respondent No.1 on 29-5-1998 ordering rejection of the petitioner's nomination papers and deleting his name from the list of validly-nominated candidates. The reason given by respondent No.1 in that order was that the petitioner's and his proposer's names did not appear in the electoral roll of the electoral unit from which the petitioner wished to contest the election and, therefore, he was not qualified to contest the said election from that unit. It was noticed in the said order that the petitioner's name, in fact, appeared at Serial No. 37 of the electoral roll of Wan Bhichran Janubi and not in the electoral roll of Muzaffarpur Janubi. Upon coming to know of this development, the petitioner rushed to Lahore and filed the present writ petition before this Court on 30-5-1998, the day on which polling was taking place. Being a Staurday no Division Bench of this Court could assemble on that day to hear the present writ petition and to provide an interim relief to the petitioner. Thus, the polling of votes took place in the constituency in question with the petitioner having been ousted from the list of candidates by virtue of the impugned order passed by respondent No.1 on 29-5-1998. It is an irony of fate that respondent No.3 still could not make it and respondent No.4 was declared as the successful candidate. He was also notified as such on 2-6-1998.

2. On 2-6-1998 this Court had directed the learned Assistant Advocate General to procure personal attendance of the Returning Officer, Mianwali, respondent No.2 herein, with the electoral roll of Muzaffarpur Janubi. On 4-6-1998 the present writ petition (which had in the meanwhile been amended with permission of this Court so as to implead respondent No.4 as a party to the writ petition and to pray for a relief against the notification issued in his favour) was admitted to regular hearing by this Court after verifying from the relevant electoral roll of Muzaffarpur Janubi that the petitioner as well as his Proposer were indeed registered as voters therein as claimed by them. On the said date this Court had also suspended the operation of the notification dated 2-6-1998 whereby respondent No.4 had been declared as the successful candidate.

3. We have heard the learned counsel for the petitioner, the learned counsel for respondent No.4 and the learned Assistant Advocate-General on behalf of respondents Nos. 1 and 2 and have also gone through the relevant record with their assistance. Although the impugned order had been passed by respondent No.1 on an application submitted before it by respondent No. 3 yet he has failed to appear before this Court today either in person or through his learned counsel. It appears that he has already lost interest in the matter after losing the election.

4. It has been argued by the learned counsel for the petitioner that the impugned order passed by respondent No.1 on 29-5-1998 was not only based upon incorrect facts but the same had also admittedly been passed without issuance of any notice to the petitioner. He has, thus, maintained that the impugned order is a nullity in the eyes of law and the same could not be allowed to operate against the legitimate interests of the petitioner. The learned Assistant Advocate-General as well as the learned counsel for respondent No.4 have not controverted the fact that the petitioner's and his proposer's names did appear in the relevant electoral roll of the electoral unit in question and that no notice was issued to the petitioner by respondent No.1 before passing the impugned order dated 29-5-1998. The learned counsel for respondent No.4 has, however, maintained that the petitioner was not only a registered voter in Muzaffarpur Janubi but his name also appeared in the electoral roll of Wan Bhichran Janubi and because of this double enrolment of vote the petitioner was, even otherwise, disqualified to contest the said election. He has also vehemently argued that once respondent No.4 had been notified as a returned candidate his election could not be called in question except through an election petition before an election tribunal and not through the present writ petition. He has, thus, canvassed for dismissal of this writ petition on the said scores.

5. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that this writ petition must succeed. It has not been disputed by any of the parties present before us that the petitioner's and his proposer's names did appear in the relevant electoral roll of the electoral unit in question and the impugned order passed by respondent No.1 proceeded on incorrect facts. On 2-6-1998 this Court had itself looked at the relevant electoral roll produced by the concerned Returning Officer and had found the petitioner's name to be very much present therein as claimed by him in his nomination papers. Thus, rejection of the petitioner's nomination papers by respondent No.1 through the impugned order dated 29-5-1998 was surely based on a ground which was contrary to the record. On this basis alone the impugned order can be held to be without lawful authority and of no legal effect.

6. It has also not been controverted before us that no notice was issued to the petitioner by respondent No.1 before passing the impugned order dated 29-5-1998. It is pertinent to notice that the petitioner's nomination papers had been accepted by the Returning Officer on 15-5-1998 and respondent No.3's petition before respondent No.1 there-against had also been dismissed by respondent No.1 on 26-5-1998. Therefore, before reversing, modifying or reviewing its decision in that respect in any manner it was incumbent upon respondent No.1 to issue a notice to the petitioner. This admittedly having not been done the impugned order violated the cherished principle of audi alteram partem as the petitioner was condemned unheard. This ground again is sufficient by itself to declare the impugned order to be without lawful authority and of no legal effect.

7. The contention of the learned counsel for respondent (sic) petitioner was even otherwise disqualified to contest the said election on account of his enrolment as a voter. in the electoral rolls of more than one electoral units is misconceived. It is by now settled law that a candidate does not incur any disqualification by reason only of his double or multiple enrolment in the electoral lists. In this context reference may be made to the cases of Manzoor-ur- Rehman v. Returning Officer and others (1988 CLC 1618), Aijaz Ali v. Deputy Commissioner, Larkana and 4 others (1988 CLC 1079), Abdul Sattar v. Returning Officer and 2 others (1988 CLC 1089) and Saleh Muhammad v. Abdul Marian etc. (1984 CLC 3321).

8. The argument of the learned counsel for respondent No.4 that the election of respondent No.4 could be called in question only through an election petition and not through the present writ petition has also failed to impress us in the circumstances of this case. In this context it has been noticed by us that the present writ petition had been filed by the petitioner before this Court on 30-5-1998 when the polling was in progress in the constituency in question and respondent No.4 had yet to emerge as the returned candidate. Thus, the petitioner had, in fact, challenged the process of election which was rneing carried on after his illegal ouster therefrom. Emergence of respondent No.4 as the returned candidate and his notification as such were events subsequent to the throwing of challenge by the petitioner and the validity of the same, therefore, was necessarily contingent upon and linked with the success or failure of the petitioner's challenge before this Court. Apart from that this contention of the learned counsel for respondent No. 4 overlooks the fact that. the petitioner had filed this writ petition challenging the unjustified rejection of his own nomination papers by respondent No.1 through the impugned order and Rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979 does not envisage such a challenge as a ground for declaring the election of a returned candidate to be void through an election petition. Thus, an election petition was not even maintainable on the ground that the petitioner's own nomination papers had been rejected illegally or unjustifiably. The case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others (1994 SCMR 1299) is a case in point in this respect. Thus, the objection of respondent No.4 to the maintainability of this writ petition is also,-misconceived and untenable.

9. For what has been observed above this writ petition is accepted and the impugned order passed by respondent No.1 on 29-5-1998 is hereby declared to be without lawful authority and of no legal effect. The necessary consequence of this declaration is that the election of respondent No.4 and his notification as such are set aside. Respondent No.1 may hold fresh election to the constituency in question and the petitioner may participate therein as a validly nominated candidate. There shall be no order as to costs. A.A./A-324/L Petition accepted