1993CLC116 (PLP)

(c) Capital Territory Union Councils (Election) Rules, 1979‑‑‑ ‑‑‑‑R.63‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Holding of count ordered by Election Tribunal‑‑‑Petitioner challenging such order of Election Tribunal through Constitutional petition‑‑‑Petitioner applying for impleading Federal Government as a party to Constitutional petition‑‑‑Petitioner's plea having been heard on merits, Court found no substance in such plea and deemed it unnecessary to make a formal order for impleading Federal Government as a party respondent in Constitutional petition. Syed Zafar Ali Shan for Petitioner (in person). Tanvir Bashir Ansari for Respondent No:2 This petition under Article 199 of the Constitution of Pakistan is against an order of Election Tribunal, Islamabad, dated 20‑5‑1992 for holding count of valid votes polled at Election for the seat of Union Council Koral, from its Ward No.9 of Pind Malkan in Islamabad. Election was held on 9‑2‑1992. Petitioner polled 457 valid votes; respondent No.2, 455 valid votes, and respondent No.3,42 votes only. By a margin of two votes, the petitioner emerged victorious and was declared elected as a Union Councilor. Respondent No.2 called in question the legitimacy of election result in favour of the petitioner on number of grounds including counting of invalid votes in his favour by filing an election petition before the Election Tribunal under Rules 57‑58 of the Capital Territory Union Councils (Election) Rules, 1979. Election Authority referred the election petition for its trial to an Election Tribunal appointed under Rule 62 of the above Rules. Election Tribunal, Islamabad, is presided over by Senior Civil Judge, Islamabad. Upon entrustment of the election petition, the Tribunal issued notice to the contesting parties. Upon being served, petitioner submitted his defence and controverted the averments in the election petition. On 20‑5‑1992, election petitioner/respondent No.2 orally stated before the Election Tribunal that all objections taken in the election petition to the validity of election result in favour of the petitioner were abandoned, except for a count by it of the valid votes cast in favour of the parties for determining the true election result. Upon hearing the parties before it, the Tribunal made. the impugned order for holding a scrutiny of the records. It is this order that has been assailed at the instance of the petitioner. On 24‑6‑1992, my learned brother Ijaz Nisar, J. directed a pre admission notice to respondents Nos.2 and 3; called for comments from respondent No.l and suspended further proceedings before the Tribunal. On behalf of the petitioner, two contentions were urged. First contention was that without raising issues from contentious pleadings and taking proof on them, Election Tribunal could not have forthwith resorted to the inspection of election records and count of votes polled at the Election. Second contention‑related to the very existence of the Election Tribunal and its jurisdiction to entertain and try the election dispute. It was argued that in absence of an express provision in the Capital Territory Local Government Ordinance, 1979 (Ordinance XXXIX of 1979), the Federal Government could not be empowered by Rules to establish‑and appoint an Election Tribunal for deciding of election disputes. In this behalf, learned counsel referred to parallel legislation in Punjab Local Government Ordinance 1979, where in the body of the Ordinance, a specific section on the subject existed. On behalf of respondent No.2, his learned counsel countered the validity of the arguments urged on behalf of the petitioner and submitted that an order for inspection of election records as scrutiny of valid votes was within the powers of the Election Tribunal and relied upon the language of Rule 63 of Election Rules, 1979. As far the second contention, learned counsel referred to sections 7, 23 and 102 of the Capital Territory Local Government Ordinance, 1979, and argued that absence of an express provision covering the subject did not debar the legislature to provide for it in the Mules by the Federal Government. I shall first advert to the second contention for it touched the very existence and jurisdiction of the Election Tribunal. In case the contention is found in favour of the petitioner, the first contention may recede to the secondary position. The petitioner as respondent to the election petition did not object to the jurisdiction of the Tribunal, its constitution by the Federal Government and the power of the Federal Government to take Rules for the, appointment of Election Tribunals for deciding of election disputes Nonetheless, since the objection touched the root of the matter, the petitioner was allowed to urge it for a decision by this Court. It is correct that there is no express provision in the Ordinance itself for election petitions and Election Tribunal as is the case in Punjab Local Government Ordinance, 1979, and to an extent in section 15‑D of the Cantonments Act, 1924. However, a conjoint reading of sections 7, 23 and 102 of Ordinance XXXIX of 1979 gave power to the Federal Government to make the Election Rules which included a power to provide for an Election Tribunal for decision of election disputes. Guidelines were provided in the parent legislation and working of details was left to the Rule‑making Authority which in this case was the Federal Government. Learned counsel for the petitioner has not shown me any principle of legislation by which the establishment of an Election Tribunal could not be catered for in the Rules, or the legislature, if it was so minded in its wisdom, could not leave it to the Rule‑making Authority. It did not appear to be a case of excessive delegation of legislative power. Therefore, I have not been able to discover any defect in exercise of power by the Federal Government for establishing an Election Tribunal for hearing of election disputes in specified manner. Rules were framed under the authority of the Ordinance for carrying out its purpose. The Rules did not defeat or negate any purpose of the Ordinance. Rather they advanced its object by providing a forum for settlement of election disputes. Therefore; there was no inconsistency between the parent legislation and the Rules framed under the authority given by it. Thus, the Rules about the establishment of an Election Tribunal by the Federal Government did not suffer from any legal flaw. In this view of the matter, an objection to the jurisdiction of the Election Tribunal was unsound and could not prevail. This brings me to the first contention raised on behalf of the petitioner. Seen from the above, respondent No.2 had abandoned all the objections taken in the election petition, except‑the objection relating to counting of votes. Rule 63 of the Election Rules, 1979, conferred wide powers on the Tribunal to hold a count. Therefore, its order could not be termed as without jurisdiction. In almost similar circumstances, the High Court had not interfered with an order for count by the Election Tribunal and the Supreme Court endorsed the order of the High. Court in Wilayat Khan. v. Reham Dad and others‑‑1985 SCMR

532. Point being similar, a different view on it was in apposite. At the end, learned counsel for the petitioner submitted an application for impleading of Federal Government through Secretary, Ministry of Interior, as a party to the writ petition. It was stated in the application that since the petitioner had challenged the appointment of Election‑Tribunal by the Federal Government being contrary to Capital Territory Local Government Ordinance, 1979, the Federal Government was a necessary party. As I have heard learned counsel on merits and found a substance in them, it was unnecessary to make a formal order for the impleadment of Federal Government as a party respondent to the writ petition. C.M. No. 1439/92 is, accordingly, dealt with and disposed of. In view of aforesaid, writ petition fails in limine. AA.//M‑624/L Petition dismissed in limine.