P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

The petitioner Muhammad Aslam was the only candidate for membership of the Union Committee, Murree outer area, and his name was posted outside the office of the Returning Officer on the 20th of December 1959, in form VI appended to the West Pakistan Basic Democracies Election Rules, 1959, (to be hereafter referred to as the Rules) which appeared as Notification No. PEA‑59/940‑ER in the Gazette of West Pakistan Extraordinary dated the 13th of November 1959. Election was held for other wards on the 10th of January 1960 and the Returning Officer for all those wards including the one in which Muhammad Aslam petitioner was a candidate sent Form No. 13 to the Collector who was the controlling authority. On the 9th of February 1960, Abdur Rashid, the sole respondent to this petition, who, though served, has not cared to appear, put in an election petition challenging the election of Muhammad Aslam. This election petition which was dealt by the Election Tribunal appointed under the Rules was accepted, and the election of Muhammad Aslam was declared to be void by the order of the Election Tribunal dated the 2nd of March 1960, a copy of which is on the record as annexure `2' to the petition. A few days later Muhammad Aslam put in the present petition for an appropriate writ, order or direction for making the order of the Election Tribunal against him ineffective.

2. The petitioner did not challenge‑and indeed in these proceedings he could not have challenged‑the findings of fact given by the Election Tribunal. He contended, however, that the petition on the basis of which the petitioner was unseated was put in after the time fixed for presentation of such petitions had expired and, therefore, the Election Tribunal had no jurisdiction to deal with the matter. The law with regard to the point raised is contained in rule 55 of the Rules, the relevant part of which is as follows :‑ "

55. Election petition.‑(1) No election shall be called in question except by an election petition presented in accordance with these rules. (2) An election petition shall be presented within thirty days next after the declaration of result under rule 48. (3) to (10) * * * * ***************************** The Election Tribunal held that the election petition had been presented within the period of limitation prescribed by the above- quoted rule 55, because for the purposes of sub‑rule (2) of rule 55 Muhammad Aslam petitioner could be held to have been declared as elected only on the 10th of January 1960, and at no earlier date. The petitioner, however, contended that as he had no rival candidate, his case fell under sub‑rule (2) of rule 20 of the Rules and he shall be deemed to have been elected as soon as it was found that he was the only candidate for the seat in question. In my view the rule relied upon by the petitioner does not, in any manner, help him. The rule reads as under:‑-- "

20. Consequences of valid nominations.‑

(1) If the number of candidates validly nominated in any wards is less than the number of members to be elected for such ward. such candidate or candidates shall be returned unopposed, and for the remaining seats elections shall be held as in the case of a casual vacancy. (2) If the number of candidates validly nominated in any ward is equal to the number of members to be elected for such ward, such candidate or candidates shall be returned unopposed. (3) If the number of candidates validly nominated in any ward is greater than the number of members to be elected for such ward, the issue shall be decided by the taking of poll in accordance with the provisions of these rules." It will be noticed that it is not mentioned in sub‑rule (2) of the above‑reproduced rule 20 that if there is only one candidate for a seat he shall be declared to be elected and the declaration shall be deemed to be one under rule 48 of the Rules. Now it is well settled that relief prescribed by law with regard to any matter can be sought at any time unless the law prescribes a period of limitation within which it has to be sought. The only provision of the Rules which fixes the period of limitation for presenting an election petition is sub‑rule (2) of rule 55, wherein it is said that in order to be entertainable an election petition shall be presented within thirty days next after the declaration of the result under rule

48. Assuming that iii the case of a person who is elected unopposed, no declaration of the result is necessary still sub‑rule (2) of rule 55 could not be invoked for the contention that the election petition under consideration was barred by time because if the case does not fall within sub‑rule (2) and no other provision fixes the period of limitation it had to be held that no period of limitation was fixed for challenging the election of a candidate who was elected unopposed. But if the contention of the petitioner to the effect that even the cases of election petitions against persons who were elected unopposed, sub‑rule (2) of rule 55 of the Rules was applicable, then the burden of proving that the petitioner was declared elected and that the declara tion fell within rule 48 of the Rules was on him, and as he had not succeeded in discharging that onus before the Election Tribunal, it cannot be held that the election petition was presented after the period of limitation prescribed by the Rules for such petitions. It follows, therefore, that the order of the Election Tribunal was not without jurisdiction with the result that no question of issuing a writ arises. I would, therefore, dismiss the petition but will pass no orders as to costs.

3. I cannot part with the case without pointing out to the Provincial Government that a slight modification in the language of the rule dealing with persons who are elected unopposed is indicated so that there should be no doubt with regard to the date by which an election petition under rule 55 of the Rules can be presented in such cases. It appears to me that the slight confusion that exists is due to an oversight and it is for that reason that I am suggesting the necessary amendment in the Rules to the Provincial Government. A copy of this judgment will be sent by the Registrar to the Law Secretary to the Government of West Pakistan and Secretary Health, Welfare and Local Government Department whose attention will be drawn to the last paragraph of this judgment. KAIKAUS, J.

I agree. K.B. A. Appeal dismissed.