2002 PLP 1632 (SCMR)

(On appeal from the judgment of Lahore High Court Lahore, dated 7‑8‑2001 passed in Writ Petition No. 14753 of 2001). (a) Punjab. Local Government Elections Rules, 2000‑‑‑‑ ‑‑‑‑Rr.40, 41 & 42‑‑‑Election of Nazim and Naib Nazims‑‑‑Returning Officer, in exercise of his powers under R.40(6), Punjab Local Government Elections Rules, 2000 initiated the process of recount and upon consolidation of result while invoking R.41 of the Rules, 2000 drew the lot ‑‑‑Validity‑ Returning Officer could not exercise such power in his discretion rather it could be done only in exceptional cases in which he was satisfied about the reasonableness of the ground for recount‑‑‑Election petition could not be instituted before the issuance of notification in the official Gazette under R.42 of the Rules and the election of a returned candidate could only be challenged through an election petition after the result was notified in the official Gazette. (b) Punjab Local Government Elections Rules, 2000‑‑‑ ‑‑‑‑Rr.81, 39, 40 & 42‑‑‑Constitution of Pakistan (1973), Art .199‑‑‑Election Naib Nazims‑‑‑Exercise of powers of Returning Officer in the process of count and re‑count after the examination of the ballot papers to exclude the invalid votes which were included in the count by the Presiding Officer and exclusion of the votes from count which were‑wrongly declared valid and preparation of consolidated statement accordingly for declaration of result‑‑‑Judicial review by High Court under Art.199 of the Constitution‑‑ Scope‑‑‑Contentions that an election could only be declared void on one or more grounds mentioned in R.81, Punjab Local Government Elections Rules, 2000 and that candidates having been excluded from the contest in the run off election were no more the contesting candidates to challenge the order of Returning Officer relating to the re‑count and drawing of lot, through an election petition, and the question of their locus standi to file an election petition against the returned candidate, would need consideration by the High Court under Art, 199 of the Constitution was not as such without force‑‑‑Question of locus standi to file an election petition left undecided by the High Court was not, as such, related to an election dispute, therefore, same would need determination by the High Court in exercise of the powers of judicial review under Art. 199 of the Constitution‑‑‑Notwithstanding the availability of remedy of election petition, order passed by the Election Authorities affecting the right of parties at an intermediate stage, would be open to the judicial scrutiny by the High Court under its Constitutional jurisdiction in suitable cases‑‑‑Question relating to the exclusion or inclusion of the ballot papers from the count on any ground mentioned in R.39 read with R.40 of the Punjab Local Government Elections Rules, 2000 ordinarily would not be gone into by the High Court in its Constitutional jurisdiction but exercise of power under Rr.39 & 40 by the Election Authorities being not discretionary; if such power was used in any illegal and improper manner, the legality of such an order could be questioned by a Constitutional petition in the High Court and the objection that the Returning Officer was not competent to invoke the provisions of Rr.39 & 40 after declaring the result under R.42 being a question relating to the jurisdiction of Returning Officer would need determination by the High Court‑‑‑Principles. The contention that an election could only be declared void on one or more grounds mentioned in rule 81 of the Punjab Local Government Elections Rules, 2000 that the candidates having been excluded from the contest in the run off election were no more the contesting candidates to challenge the order of Returning Officer relating to the re‑count and drawing of lot through an election petition, therefore, the question of their locus standi to file an election petition against the returned candidate would need consideration by the High Court, was not as such without force. The question of locus standi to file an election petition left undecided by the High Court was not as such related to an election dispute, therefore, it would need determination by the High Court in exercise of its powers of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Notwithstanding the availability of remedy of election petition, an order passed by the Election Authorities affecting the right of parties at an intermediate stage, will be open to the judicial scrutiny by the High Court in its Constitutional jurisdiction in the suitable cases However, the question relating to the exclusion or inclusion of the ballot papers from the count on any ground mentioned in rule 39 read with rule 40 of the Rules ordinarily would not be gone into by the High Court in its Constitutional jurisdiction but the exercise of power under the said rules by the Election Authorities being not discretionary, if such power was used in an illegal and improper manner, the legality of such an order could be questioned by way of filing a Constitution petition in the High Court and the objection that the Returning Officer was not competent to invoke the provisions of rules 39 and 40 of the Rules after declaring the result under rule 42 of the Rules being a question relating to the jurisdiction of Returning Officer would need determination by the High Court. The Returning Officer in the process of count and re‑count after the examination of the ballot paper, could exclude the invalid votes which were included in the count by the Presiding Officer and similarly he could exclude the votes from count which were wrongly declared valid and prepare the consolidated statement accordingly for declaration of result but this power was not unlimited to be exercised at his option or at the instance of one or the other party unless he was fully satisfied about the reasonableness of the challenge. In the present case the Returning Officer excluded 21 ballot papers of the respondents and 23 ballot papers of the petitioners in the re‑count which were neither declared invalid in the first count nor were challenged in writing, therefore, it was necessary to examine the matter relating to the legality and validity of the action of Returning Officer and the exclusion of ballot papers on the ground that same were not bearing correct mark of marking aid rubber stamp. The above remarks of the Returning Officer in general terms would not be sufficient to exclude the ballot papers declared valid in the count by the Presiding Officer without ascertaining the intention of the voters appearing on the ballot paper. The Returning Officer had not pointed out in the order, the defect for which the intention of the voters was not clear or the ballot papers were not bearing the stamp or the stamp was put in a manner which made the ballot paper invalid. If a wrong done by a public functionary to a person could not be undone through an ordinary 'remedy, the extraordinary remedy of writ petition could perusal of rules would show that if a vote was not challenged in the prescribed manner at proper stage, it would not be challenged subsequently and presumption of correctness shall be attached to the consolidation of result prepared at the time of count. Under the rules, the election, of a returned candidate could be challenged by a contesting candidate by way of an election petition before the Tribunal on any aground mentioned under rule 81 of the Rules but the said ground would not be available to Returning Officer for re‑count and revisions of the result. The High Court thus had not given due consideration to the following questions:‑‑ (i) Whether all candidates who participated in the election would have locus standi to challenge the election of the returned candidate in case of run off election or only the candidate who contested the run off election, would be deemed to be the contesting candidate for the purpose of rules 70 and 71 of the Rules? (ii) What is the remedy provided under the law to challenge an order passed by the election functionaries during the process of election, adverse to the interest of a candidate at a stage when filing of an election petition under the rules is not possible. (c) Constitution of Pakistan (1973)‑‑‑

Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑If a wrong done by a public functionary to a person could not be undone through an ordinary remedy, the extraordinary remedy of constitutional petition could be invoked. (d) Punjab Local Government Elections Rules, 2000‑‑‑ ‑‑‑‑Rr.81, 39, 40, 41 & 42‑‑‑Election of Nazim and Naib Nazims‑‑ Proceedings at the close of the polls‑‑‑Consolidation of result‑‑‑Declaration of result‑‑‑Challenge to the result of a returned candidate‑‑‑Procedure‑‑‑If a vote was not challenged in the prescribed manner at proper stage, same would not be challenged subsequently and presumption of correctness would be attached to the consolidation of result prepared at the time of count‑‑ Election of a returned candidate could be challenged by a contesting candidate through an election petition before the Tribunal on any ground mentioned under R.81, Punjab Local Government Election Rules, 2000, but the said ground would not be available to Returning Officer for re‑count and revision of the result. (e) Punjab Local Government Elections Rules, 2000‑‑‑ ‑‑‑‑Rr.70 & 83‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Election of Nazim and Naib Nazims‑‑‑Election dispute‑‑‑Persons not contesting candidates in run off election invoking Art. 199 of the Constitution and filing Constitutional petition in the High Court against the returned candidate‑‑ Maintainability‑‑‑Remedy of election petition was available to a contesting candidate after issue of the notification of result of returned candidate and no election petition could be filed by a person who was not a contesting candidate in the election‑‑‑Persons being no more contesting candidates in run off election, would not be in a position to challenge the election of returned candidate through an election petition‑‑‑Election Tribunal, on the basis of R.83, Punjab Local Government Elections Rules, 2000, could declare an election as a whole void only on an election petition filed by a contesting candidate‑‑‑Persons being not the contesting candidates in run off election being not in a position to avail remedy of election petition . against returned candidate could invoke the Constitutional jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Principles. The remedy of election petition provided under the Punjab Local Government Elections Rules, 2000 is available to a contesting candidate after issue of the notification of result of returned candidate but no such petition can be filed by a person who is not a contesting candidate in the election. The petitioners being no more contesting candidates in the run off election, would not be in a position to challenge the election of returned candidate through an election petition. Undoubtedly, the Tribunal on the basis of grounds mentioned in rule 83 of the Rules, can declare an election as a whole to be void. Under the above rule, the Tribunal can exercise power only on an election petition which is filed by a contesting candidate and the petitioners being not the contesting candidates in run off election would not be in a position to avail such remedy against returned candidate and, therefore, they had rightly invoked the Constitutional jurisdiction of High Court for redressal of their grievance. Even if the statutory remedy available under the law is considered inadequate and inefficacious as the relief being claimed cannot be granted to an aggrieved person in such remedy, the writ petition can be maintained. (f) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Even if the statutory remedy available under the law is considered inadequate and inefficacious as the relief being claimed cannot be granted to an aggrieved person in such situation, the Constitutional petition can be maintained. (g) Punjab Local Government Elections Rules, 2000‑‑‑ ‑‑‑‑Rr.42, 40 & 39‑‑‑Election of Nazim and Naib Nazims‑‑‑Candidates as per result prepared by the Presiding Officer, secured second position in the election and accordingly Returning Officer having declared the result in terms, of R.42 nominated the person as successful candidates for run off election, later on the applications of other candidates he proceeded for the re count of votes and by declaring the valid ballot papers as invalid revised the result‑‑‑Returning Officer, if in the process of re‑counting in exercise of the powers of R.40 read with R.39 of the Punjab Local Government Elections Rules, 2000 found that a ballot paper was or was not suffering from the defect to be included or excluded from the count, he could include or exclude such ballot paper from the count but such power be exercised after declaration of result under R.42 of the said Rules. (h) Punjab Local Government Elections Rules, 2000‑‑‑ ‑‑‑‑Rs.39, 40 & 42,‑‑‑Constitution' of Pakistan (1973), Art. 199‑‑‑Election of Nazim and Naib Nazims‑‑‑Election dispute‑‑‑Judicial review under Art‑199 of the Constitution‑‑‑ Scope‑‑‑Consolidation and declaration of result‑‑‑Run off election‑‑‑Returning officer before consolidation of result issued notice to the contesting candidates under R.40 and on the same day he undertook the exercise of recount‑‑‑Contention was that Returning Officer after consolidation and announcement of result proceeded to invoke R.40 and revised the result‑‑‑Perusal of the order of the Returning Officer did not show as to whether the re‑counting was done before the consolidation of the result or after its declaration‑‑‑Returning Officer after declaration of the result under R.42 had become functus officio and was not competent to re open the process of re‑counting in exercise. of his power under R.40 read with R.39 of the Punjab Local Government Elections Rules, 2000‑‑‑Essential question relating to the manner of exercise of jurisdiction by the Returning Officer and the locus standi of petitioners (candidates in run off election) to avail the remedy of election petition, could be determined by the High Court in a petition under Art. 199 of the Constitution. Under .the rules the Returning Officer before declaration of result as provided under rule 42 of the Punjab Local Government Elections Rules, 2000, has to examine the ballot papers excluded from the count by the Presiding Officer and if he finds that any ballot paper was wrongly excluded, will count it in favour of the candidate for whom it has been cast. The Returning Officer can also reject a vote on any ground mentioned under clause (iii) of sub‑rule (4) of rule 39 of the Punjab Local Government Elections Rules, 2000 but under sub‑rule (6) of rule 40 of the Rules, the Returning Officer has no power to re‑count ballot papers which were declared valid by the Presiding Officer unless it was challenged in writing by a contesting candidate or his election agent and Returning Officer finds himself satisfied about the reasonableness of the challenge or if he is directed for re‑count by the Chief Election Commissioner or by the District Returning Officer as the case may be. In the present case the Returning Officer before consolidation of result issued notice to the contesting candidates under rule 40 of the Rules and on the same day he undertook the exercise of re‑count. The objection of the petitioners was that Returning Officer after consolidation and announcement of the result proceeded to invoke the provisions of rule 40 and revised the result. The perusal of order would not show as to whether the re counting was done before the consolidation of result or after its declaration. The Returning Officer after declaration of result, under rule 42 of the Rules becomes functus officio and is not competent to re‑open the process of re counting in exercise of his power under rule 40 read with rule 39 of the Rules. Thus the essential question relating to the manner of exercise of jurisdiction by the Returning Officer and the locus standi of the petitioners to avail the remedy of election petition would need determination. (i) Punjab Local Government Elections Rules, 2000‑‑‑ ‑‑‑‑R.41‑‑‑Election of Nazim and Naib Nazims‑‑‑Equality of votes‑‑‑Drawing of lot‑‑‑Procedure‑‑‑Expression "entitling him to be declared elected" used in R.41, Punjab Local Government Elections Rules 2000‑‑‑Connotation‑‑ Method of drawing of lot under R.41 was only applicable for declaring a candidate to be elected as Nazim and Naib Nazim of Tehsil Council and Town Council but not in case of equality of votes between the two or more candidates in the run off election‑‑‑Lot could, however be drawn if a candidate by addition of one vote could be declared elected ‑‑‑ Method of drawing lot as envisaged in R.41 had not been made applicable for declaring a candidate successful in the run off election to contest the fresh election‑‑ Principles. It is provided under section 148 of the Punjab Local Government Ordinance, 2000, that election of members of Union Council including Union Nazim and Naib Union Nazim will be held on the basis of adult franchise and separate electorates whereas the electoral college for the election of Zila Nazim, Naib Zila Nasim, Tehsil Nazim, Naib Tehsil Nazim,, Town Nazim and Naib Town Nazim is the members of Union Council. Under section 144 of the Ordinance, Union Nazim and Naib Union Nazim in a panel securing highest number of votes are declared elected but the Zila, Tehsil and Town Nazims and Naib Nazims securing more than 50% of the total votes of the members of the Union Council will be declared elected. In the Tehsil and Town, if the Nazim and Naib Nazim fail to secure more than 50 % of the total votes of the members of the Union Council in the respective Tehsil or town, fresh election is held in which joint candidates securing the highest and second highest number of votes in the first election shall be the contestants and the joint candidates securing the highest number of votes in the fresh election will be declared elected. In case of Zila Nazim and Naib Zila Nazim, when faced with such situation matter shall be referred to the Chief Election Commissioner. Under rule 41 of Punjab Local Government Elections Rules, 2000 except for the office of Zila and Naib Zila Nazim, in case of equality of votes between the two or more contesting candidates in the election for the seat of Nazim and Naib Nazim, Tehsil and Town Council, the Returning Officer shall draw a lot and the candidates successful in lot shall be deemed to have received the highest number of votes entitling him to be declared elected. The method of drawing of lot under rule 41 of the Rules is applicable only for declaring a candidate to be elected as Nazim and Naib Nazim of Tehsil Council and Town Council but this rule is not applicable in case of equality of or more candidates in the run of: election to declare anyone of them successful candidate to contest the fresh election. The expression "entitling him to be declared elected" used in the above rule connotes that only in case of equality of votes between the two or more candidates in the election if a candidate by addition of one vote can be declared elected, the lot shall be drawn. In the present case, the candidate having obtained 371 votes secured first position but for want of securing majority of total votes, he could not be declared elected and in consequence thereto, it was declared a runoff election and petitioners as per initial result were the second candidate for contest in the fresh election. The Returning Officer while undertaking the exercise of re‑counting revised the result according to which the petitioners and respondents Nos.3 and 4 were declared to have obtained equal votes and in consequence thereto for the contest of fresh election, the Returning Officer proceeded to draw a lot between them. The method of drawing lot as envisaged in rule 41 of the rules has not been made applicable for declaring a candidate successful, in the run off election to contest the fresh election‑‑‑Appeal was allowed in circumstances. Muhammad Saleem v. Provincial Election Authority, Karachi PLD 1985 Kar. 135; Wahid Bux v. Election Authority 1984 CLC 1294; Pervez Iqbal v. Provincial Transport Authority 1996 CLC 182; Ittehad Cargo Service v. Syed Tasneem PLD 2001 SC 116; Kanwar Ijaz v. Irshad Ali PLD 1986 SC 483: Nasir Mahmood Mughal v. Muhammad Azam 1987 MLD 2526; Akbar Ali v. Razi‑ur‑Rehman PLD 1966 SC 492 and Civil Appeals Nos. 1864 and 1865 of 2001 ref.