1986 PLP 211 (CLC)

ABDUL WAHEED, J.‑‑Sh. Muhammad Yousaf, in the instant petition, filed under Article 9 of the Provisional Constitution Order, 1981, assails the validity of an order passed by the Election Tribunal, Gujrat, respondent No.2, on 2nd of January, 1985, whereby in pursuance of an arrangement agreed upon by the parties. he was deseated and Muhammad Bashir, respondent No.1 was declared as elected to the Local Council from electoral Unit No. 8 of Town Committee Kunjah, District Gujrat.

2. The petitioner as well as respondent NO‑1 contested election to the Local Council from electoral Unit No. 8 of Town Committee Kunjah, District Gujrat, held on 28th of September, 1983. According to the statement of the count in Form No.XII prepared in accordance with rule 40(5) of the Punjab Local Councils (Election) Rules, 1979 framed in exercise of the powers conferred by section 167 of the Punjab Local Government Ordinance, 1979, the petitioner polled 257 votes out of which 14 were declared invalid leaving a balance of 243 votes in his favour, while respondent No.l secured 238 votes out of which 11 were declared as invalid leaving a balance of 227 votes in his favour. On the basis of this count the petitioner was declared as elected.

3. Subsequently respondent No.l challenged the election of the petitioner by an Election Petition under section 24 of the Punjab Local Government Ordinance, 1979 before the Election Tribunal, Gujrat, respondent No.2 alleging that he had secured 248 valid votes but the Presiding Officer had taken out 21 ballot‑papers from the packet containing his valid votes in connivance with the petitioner. This petition was resisted by the petitioner as well as the Presiding Officer who in their separate replies controverted the allegation of respondent No.1.

4. The Election Tribunal commenced the inquiry as contemplated by law. He recorded the evidence adduced by the parties and the statement of the Presiding Officer also. However, on 20th of December, 1984, the date fixed for arguments in the Election Petition, the counsel for the parties and the petitioner made the following statement:‑ "According to instructions of our clients, we have agreed to the manner of disposal of the present petition. The bag containing the election material of the Unit in dispute alongwith the counterfoil of the ballot‑papers issued in respect of Ward No. 8 Kunjah the election of which is in dispute be summoned. If the ballots available in the bag may be valid or invalid tendered or challenged, fall short of the total number of the ballot issued, the petition may be accepted and the petitioner returned to the office, failing which his petition may be dismissed."

5. The arrangement envisaged by the above agreement was approved by the Election Tribunal who summoned the bag containing the election material for 23rd of December, 1984. On this date before the bag was opened, the petitioner moved an application before the Tribunal stating that he did not understand the statement which was recorded on 20th of December, 1984 and what he had in fact agreed to was that if the ballots contained in the bag were in excess of the total number of ballots issued, the election petition filed by respondent No.1 be accepted and praying that the election petition be disposed of accordingly. This application was turned down by the Election Tribunal by his order passed on the same date. He observed that it was the petitioner who was the initiator of the arrangement and he had fully understood the same. He further observed that he too lost no effort to make the petitioner understand what he was agreeing to and it was then that he and his counsel signed the statement.

6. As agreed, the bag was desealed in the presence of the counsel for the parties who "thoroughly and carefully checked" the same and made the counting". According to the record, total ballots issued were 609 whereas total ballots of all kinds valid invalid questioned. Tendered etc. recovered from the bag were

495. On the basis of this count, the election petition was accepted, the election of the petitioner was set aside and respondent No.l was declared as elected in his place by the Election Tribunal, Gujrat, vide his order, dated 2nd of January, 1985.

7. The above order has been impugned on two ground; firstly, that the arrangement agreed upon by the parties was in fact contrary to the one recorded by the Tribunal and secondly, that in case the first ground is not accepted, the arrangement being violative of law is not binding.

8. As regards the first ground, it is evidently without substance. A photostat copy of the statement signed by the petitioner and counsel for the parties on 20th of December, 1984 has been filed as Annexure 'G'. The language in which the statement is couched is unambiguous and does not admit of any probability of miscomprehension. Moreover, the Tribunal has clearly mentioned in his order, dated 20th of December, 1984 that the petitioner fully understood the statement and signed it after he had lost no effort to make him understand what he was agreeing to. In view of this observation also, the plea of the petitioner that he did not understand the statement before he signed it cannot be given) any credence.

9. So far as the second ground that the arrangement being repugnant, to law is not binding is concerned, it too is without merit. The allegation of respondent No.1 was that 21 votes were removed from his packet by the Presiding Officer with the connivance of the petitioner. This allegation was denied by the petition as well as the Presiding Officer. After the parties had concluded their evidence for and against the allegation, they agreed to the decision of the election petition, not on the basis of a finding on the allegation but in view of the discrepancy between the number of ballots issued and of those recovered from the bag. If the ballots issued were found in excess of those recovered from the bag, the petition was to be accepted. Learned counsel for the petitioner has not pointed out any provision of law which is contravened by this agreement. He has, however, cited a few authorities but they have no bearing on the. controversy involved in these proceedings. The first is Sher Bahadur v. Deputy Commissioner/ Election Tribunal etc. 1981 SCMR

147. In this case before the polling started all the contesting candidates applied to the Presiding Officer stating that they did not want the ladies of the locality to cast their votes for them and so they should not be allowed to vote and votes of those women who had already cast them should not be counted. The Presiding Officer agreed with the arrangement. It was held that the voter whose name appeared on the electoral roll had a right to cast his vote for any candidate that he liked and the candidate had no right to deprive him of his right and that any agreement which stipulated to deprive a voter of his vote, being both against law and public policy, was ab initio void. In Rashid Ahmad Rahmani v. Mirza Barkat Ali and others P L D 1968 S C 301, the election of Mirza Barkat Ali, who had secured majority votes, was set aside by the Tribunal upholding an objection that his name could not be entered in the electoral roll on the date on which the electoral unit had been called upon to elect its representatives and the contesting candidate namely Rashid Ahmad Rehmani who had polled minority votes was declared elected. It was held by the Supreme Court that it amounted to disfranchising the majority and as Mirza Barkat Ali had majority votes, the minority candidate could not be declared elected. The same principle has been enunciated in Ameer Abdullah v. Muhammad Yaqub and another P L D 1967 Lah. 722 and Ch. Abdul Hamid v. Deputy Commissioner etc. 1985 S C M R

359. Reliance has been placed on E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 also in which it has been propounded that a person protected by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 could not lawfully contract out of that protection, for, such a contract would be void being against public policy.

10. In the instant case, the plea of respondent No.l as already mentioned above was that he had secured majority votes but the Presiding Officer in league with the petitioner had removed 21 ballots from his packet, thereby rendering him a minority candidate. This plea could be adjudicated upon on the basis of the evidence produced by the parties before the Tribunal. However, the parties chose a different method and they agreed that the bag containing the election material be opened and if the ballots recovered from the bag were found short of the total number of the ballots issued, the petition be accepted and respondent No.l declared returned to the office. This arrangement is not tantamount to contracting out of law nor does it offend against any provisions of law or militate against public policy. In case the petitioner had admittedly polled majority votes and respondent No.l minority votes and the petitioner had been deseated and respondent No.l declared elected instead on account of any technical lacuna or legal disqualification against the petitioner, it could have been argued that the declaration of election in favour of respondent No.l was illegal, unconscionable and against public policy. This is not the position in the present case and, therefore, the Election Tribunal was‑perfectly justified in law to act upon the agreement reached between the parties and decide the election petition accordingly.

11. For the foregoing reasons we find no ground to interfere with the impugned order and dismiss this writ petition. However, the parties are left to bear their own costs. A . A . Petition dismissed.