1993 PLP 1127 (CLC)

Final decision by the Election Tribunal, in an election passed on 31‑1‑1993, for deseating of the petitioner and declaring respondent No.2 to have been duly elected in his place to membership of Union Council Mandi Usmanwala, in Tehsil and District Kasur was sought to be set aside in judicial review. Petitioner alongwith respondents Nos. 2 to 4 contested election to the membership of Union Council Usmanwala from its Ward No.l. Election was held on 28‑12‑1991. Petitioner secured 140 votes; respondent No.2 bagged 137 votes; respondent No.3 polled 22 votes and respondent No.4 received 70 votes. By a majority of three votes only, petitioner won the election and was declared elected and notified. His closest rival respondent No.2 called in; question his election upon numerous grounds including disqualification on account of his less age being below 25 years on the ate of filing of nomination papers by him. Election was called in question by filing an election‑petition before an Election Tribunal. It was stated that the petitioner was approximately 24 years and 7 months of age when he submitted his nomination papers for election to the membership of the above Union Council. Petitioner contested the election petition. Dispute gave rise to following issues for determination:‑‑ (1) Whether the returned candidate was barred by law from contesting election due to the age less than prescribed in the law as minimum age? OPA (2) Whether casting of votes of unauthorized persons affected the result? If so, to what extent? OPA. Petitioner in the election petition gave evidence, oral as well as documentary. It consisted of the proof respecting, age of the petitioner also. Despite time and adequate opportunity, petitioner could give no evidence. His defence was, therefore, closed by the Tribunal. Upon the basis of the material brought on record of which there was no effective rebuttal, the Tribunal found the petitioner to be below the age of 25 years at the time of filing of nomination papers by him, and, therefore, held him disqualified to be elected to and to be a member of. Union Council, in terms of section 20, clause (b) of Punjab Local Government Ordinance, 1979. In the result of the above finding, it deseated the petitioner and declared respondent No.2 to have been elected to his seat. It was this decision of the Tribunal that was sought to be quashed in extraordinary jurisdiction of this Court. Learned counsel has been heard. It may be stated at the very inception that the learned counsel did not dispute the finding of the Election Tribunal recorded on a question of fact as to the actual age of the petitioner at the time of filing of nomination papers by him. Record showed that the petitioner was born on 3‑5‑1967. On the date of filing of nomination papers, he was below the age of 25 years set as a final qualifying age in section 20, clause (d) of 1979 Ordinance. Therefore, there was not much doubt or dispute about the obvious disqualification touching the candidature of the petitioner to be elected to and to be a member of a Local Council. I repeat and observe that finding on issue No.1, on its factual plane was not questioned at all and writ petition was contested on purely legal plane. It was urged that since the petitioner was recorded above 25 years of age in the electoral roll of the Ward, Election Tribunal was precluded to go behind it. In nutshell, it was urged that the entry respecting age, in the electoral roll was final on the right to vote as well as to contest the election to the membership of a Union Council. In support of the argument, learned counsel referred to a decision of Supreme Court reported in PLD 1968 Supreme Court

235. This was the main plank and sheet anchor of his case. The judgment of Supreme Court instead of helping him clearly goes against his contention. A right to vote and right to contest election were not synonymous. Both rights had different connotation. Right to contest and be a member of an Elective Body is regulated by statutory qualifications and disqualifications. Likewise, a right to cast vote is a statutory right and is regulated by Statute granting it. Entry respecting age of a voter in the electoral roll was final on right to vote only and did not foreclose inquiry respecting qualifying age to be elected to and be a member of Local Council by the Election Tribunal. Even the decision of a Returning Officer given in security on nomination papers did not bind the Election Tribunal for an independent inquiry in the election petition on the question of age of a candidate. Therefore, it was wholly inaccurate to plead ouster of jurisdiction by the Election Tribunal to examine and finally pronounce upon the disqualification on account of less age of a candidate for deciding of the election petition. In my view, the Election Tribunal had full authority and jurisdiction to examine and decide the question about the age of the petitioner at the time of filing of nomination papers by him for determination of his true eligibility to be elected to the membership of Union Council. I have not even a slight doubt about it. On evidence and in law, the petitioner was disqualified to be elected to the membership of Union Council. His election was invalid. To that extent, the finding of the Election Tribunal is correct and I uphold it. This does not end the matter. The crucial question for consideration would be, whether respondent No.2 could have been declared elected forthwith, as member of the Union Council upon deseating‑ of the petitioner. Ballot in constituency was divided among four candidates. Each had his own share of it. Disqualification attached to the petitioner was not transparent and known to the voters. Therefore, the doctrine of thrown away votes may not be applicable. Precise point would be, whether fresh poll in the constituency ought to have prevailed as a proper substitute for the declaration made by the Election Tribunal in the impugned judgment. It needs consideration by this Court. To this extent only, writ petition is being admitted. C.M. No.l, 1993 Petitioner undertakes to file certified copies of the documents sought to be presently dispensed with before the date of hearing fixed in the writ petition. Till then, the prayer in the C.M. is allowed. C.M. No.2‑1993 Notice for an actual date on 21‑2‑1993. Meanwhile, respondent No.2 shall not be administered oath of office by the Authorities. As writ petition involves extremely a short point for decision and the dispute in it pertains to representation on an Elective Body, it shall be heard and finally decided within two months at the maximum. Taking up in continuity the proceedings concluded in the previous order of the Court dated 10‑2‑1993 containing full reference to the factual matrix of the case, it is to be seen, whether declaration respecting respondent No.2 to have been elected was legal or proper. In my view it was neither legal nor proper. Instead, it was a clear case for re‑poll in the constituency. Win was by an extremely thin margin of three votes only. Apart from two main rivals, the ballot was also divided among three other contesting candidates. There *$ a close neck to neck competition between the petitioner and respondent No.2. Petitioner was a few months less than 25 years of qualifying age. Though, an objection to his candidature was raised at scrutiny of his nomination papers, yet the Returning Officer allowed him to contest, on account of his age recorded in the electoral . roll. Disqualification was neither patent nor notorious. Its notoriety was not visible to the voters of the constituency. Election Tribunal also did not say so. Therefore, doctrine of throw away votes was inapplicable to the facts of the case. Declaration of Respondent No.2 to have been duly elected in place of the petitioner clearly amounted to disenfranchisement of the voters. Ordering of re‑election in the constituency was, therefore, a compulsive and legal requirement of the case. To this extent, impugned order of the Election Tribunal is set aside and declared to have been made‑- without lawful 'authority. Result of it would be a fresh poll in the constituency. Since the success, was divided, ,I shall leave the parties to bear their own costs in this Court. A.A./M-882/L Order accordingly