2000 PLP 117 (CLC)

S.M. Masud ‑for Petitioner. Respondents Nos. 1, 3, 4, 6 and 7 in person. Zahid Hussain Khan for Respondent No.2. Zulfiqar Hussain Bokhari, A.A.‑G. for Respondent No.5. Date of hearing: 9th July, 1998. By this common judgment .I intend to dispose of Writ Petitions Nos. 13209 of 1998 and 13508 of 1998 as they arise out of an Election petition pending between the parties. 2. The facts giving rise to these petitions are that the petitioners in both the petitions noted above alongwith three others contested election from Ward No. 17 of Town Committee Kunjah District Gujrat i.e. an electoral unit comprised of only one polling station. According to the petitioner in Writ Petition No. 13209 of 1998~he secured 172 votes, was declared successful and was nominated as such by the Deputy Commissioner of the District. It is submitted by him that the Presiding Officer was abducted by his opposing candidate namely Ansar Mahmood Ansari and a fake result was procured from him thereby showing that he has secured 201 votes and has, thus, won the election. This result was, however, not accepted by the Returning Officer who proceeded to declare the petitioner in Writ Petition No. 13209 of 1998 as successful candidate from Ward. No. 17, who was notified as such in accordance with law. Ansar Mahmood Ansari, the petitioner in Writ Petition No. 13508 of 1998 being aggrieved of the abovesaid declaration of the result of election proceeded to challenge the same by way of filing an election petition before the Election Tribunal nominated for the Town Committee Kunjah. Alongwith the petition an application for issuance of temporary injunction was also filed thereby praying that the petitioner in Writ Petition ‑ No. 13209 of 1998 be restrained from acting as Councillor and instead the petitioner be allowed to act as Councillor from Ward No. 17 of flown Committee, Kunjah. The election petition as also the application for issuance of temporary injunction were contested by the petitioner in Writ Petition No. 13209 of 1998 while the other candidates generally supported the petition filed by Ansar Mahmood Ansari. 3. The learned Election Tribunal having appraised the pleadings as also the documents on the record proceeded to partly allow the application vide its order dated 26‑6‑1998 whereby Muhammad Bashir, the petitioner in Writ Petition No. 13209 of 1998 was restrained from acting as a Councillor from Ward No. 17 while the prayer that Ansar Mahmood Ansari i.e. petitioner in Writ Petition No. 13508 of 1998 be allowed to act as Councillor was declined. 4. The abovesaid order has been assailed in the petitions aforenoted by both the contesting candidates. It has been argued by the learned counsel for the petitioner in Writ Petition No. 13209 of 19.98 that the petitioner having been declared as successful candidate by the Presiding Officer and notified as such by the Deputy Commissioner concerned could not have been stopped to function as Councillor of the area because it tantamounts to disenfranchising the constituency. He went on to argue that their being only one polling station in the electoral unit, the result thereof could only be reflected in Form No.XII by the Presiding Officer while the one being relied by Ansar Mahmood Ansari has been reflected in Form No.XIII which is permissible only in the case of more than one polling station and the result in such a case is declared by the Returning Officer after consolidating the results from all the polling stations. It was then submitted that perusal of Form No.XIII would show that the result has been declared by the Presiding Officer and that too in regard to three candidates while five candidates contested the election from the said electoral unit. It was lastly submitted that void qua the constituency has been created and this could not be done in an election matter. 5. Learned counsel for the contesting respondents in Writ Petition No. 13209 of 1998 and petitioner in Writ Petition No. 13508 of 1998 on the other hand maintained that the F.I.R. alleged to have been recorded in regard to the incident of abduction of Presiding Officer does not narrate that any fake and false result was got prepared. As far the argument that the result could not be declared in From No.XIII and that too of the three candidates, learned counsel for the petitioner in Writ Petition No‑.13508 of 1998 maintained that other candidates have withdrawn from the election and it was for the Presiding Officer to see to it that result is reflected in the form meant for one polling booth constituency. It was also maintained that the total notification of election has not been appended alongwith the writ petition and the extract thereof could not be relied. It was lastly submitted that Form No.XIf‑ as relied by Muhammad Bashir, petitioner in Writ Petition No.13209 of 1998 has been signed by the Assistant Presiding Officer and not by the Presiding Officer as required by Rule 40(5) of the Punjab Local Councils (Election) Rules, 1979. 6. This being a case of one polling station, the statement of count was to be prepared in Form No.XII as is provided in sub‑Rule (5) of Rule 40. The said statement of count appears to have been prepared in Form No.XIII and further appears to have been acted upon inasmuch as notification of the petitioner was also issued by the Deputy Commissioner. On the other hand the statement of count being relied by Ansar Mahmood Ansari, petitioner in Writ Petition No. 13508 of 1998 has been prepared in Form No.XIII which is meant for an electoral unit wherein more than one polling stations are established. Again the statement of count as reflected in the said form carries result in regard to three candidates only while the contesting candidates from the said Halqa were five. The argument that two candidates had withdrawn from the election, therefore, their names were not reflected in the statement of count is devoid of any force firstly because it is not even prima facie established on the record that the said candidates withdrew from the election and secondly as per Form No.XII appended with the writ petition, the other candidates have also secured votes, therefore, it could not be successfully maintained that the result of the said candidates were not reflected in the forms because they had withdrawn from the election. Additionally it is also not explained as to why the statement of count was reflected in Form NO.XIll when it was required to be reflected in Form No.XII. The argument of the petitioner in Writ Petition No. 13209 of 1998 appears to be plausible that the Presiding Officer was abducted and whatever form was made available to him, he inserted desired result therein. As far the l plea that the petitioner in Writ Petition No 13209 of 1998 has not been notified as successful candidate or at least complete notification in that regard has not been presented alongwith the writ petition, suffice it to say that the same is belied by the averments contained in nary 4 of the election petition where the petitioner Ansar Mahmood Ansari has admitted in so main; words that the petitioner in Writ Petition No. 13209 of 1998 has been illegally notified by the authorities concerned. The Returning Officer has also supported the case of the petitioner in Writ Petition No.13508 of 1998. In these circumstances there was no prima facie case in favour of Ansar Mahmood Ansari since Muhammad Bashir petitioner in Writ Petition No. 13209 of 1998 was declared to be successful candidate and was notified as such, therefore, he could not be restrained from acting as Councillor of the Halqa. Learned Election Tribunal manifestly fell in error in disenfranchising the constituency thereby restraining the petitioner in Writ Petition No.13209 of 1998 from acting as Councillor. Needless to say that no proceedings could be rendered invalid even if some p person was held to be not entitled to act as Councillor, sit as such, voted or otherwise took part in the proceedings. ‑ Section 37 of the Punjab Local Government Ordinance, 1979 can be referred in this behalf. The balance of convenience which in fact means balance of inconvenience also tilted in favour of the petitioner in Writ Petition No. 13209 of 1998 and so is the case in regard to irreparable loss. The learned Election Tribunal has, thus, proceeded with material irregularity amounting to illegality in the exercise of its jurisdiction manifestly calling for interference in the exercise of Constitutional jurisdiction of this Court. 7. In result this petition is allowed, the order, dated 26‑6‑1998 passed by the learned Election Tribunal whereby injunction was issued thereby restraining the petitioner in Writ Petition No. 13209 of 1998 from acting as Councillor of Ward No. 17, Town Committee, Kunjah District Gujrat, is declared to be without lawful authority and of no legal effect. Writ Petition filed by Ansar Mahmood Ansari (Writ Petition No. 13508 of 1998) is dismissed. The parties are left to bear their own costs. Q.M.H./M.A.K./M‑790/L Petitions dismissed.