1982 PLP 543 (CLC)

Ss. 21(f) & 24 and Punjab Local Councils (Election Petitions) Rules, d 1979, rr. 14 & 15 and Constitution of Pakistan (1973), Art. 199

2. We find that there is material enough to justify the Tribunal's finding that the petitioner was a depot‑holder. The evidence shows that he jointly with his father had received authorization on 28‑6‑1974 and had continued functioning. Although his case was that he had submitted his resignation on 7‑2‑1980 but we find nothing in the evidence on the relevant record (which has been produced by Peshi Qanungo of the office of Additional Commissioner (Consolidation), Lahore Division, Lahore, during hearing of this petition before us) to show that the resignation had been accepted while the matter was before the Tribunal or he had otherwise in fact ceased to function as depot-holder. It is submitted by learned counsel for the petitioner that the resignation had been accepted on 27‑7‑1980, but that was] after the Tribunal had already announced its decision. We, therefore, find no basis to interfere with this finding of the Tribunal.

3. The Tribunal however, did not apply its mind as to the next step to be taken. Under rule 14 of the Punjab Local Councils (Election Petitions), Rules, 1979, it could declare another candidate to have been duly elected only if it was satisfied that such candidate was entitled to be so declared The Tribunal had also to examine whether the circumstances justified the holding of a re‑election under rule 15 of the aforementioned Rules. The principle governing a decision on the point is given at paragraph 930 in Halsbury's Laws of England, Fourth Edition, Vol. XV. It reads: "Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away, and to decide this a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the pact of electors voting for the disqualified person. Examples of the sort of disqualification that will cause vote to be thrown away are being a peer, alien or minor, or a person convicted of an offence and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence. For the votes given for a candidate to be thrown away, the voters must, before voting, either have had or be deemed to have had notice of the facts creating the candidate's disqualification, and it is not necessary to show that the elector was aware of the legal result that such a fact entailed disquali fication. Votes given without such notice are good. If, after deduc ting the votes given after such notice from the total number of votes given for the disqualified candidate, tie remains in a majority, the minority candidate cannot take the seat and there must be a fresh election."

4. Since the point involved is one of fact, the same has to be decided in the first instance by the Tribunal itself. We, therefore, declare that portion of the Tribunal's order as relates to declaring respondent Binyamin as elected to be without lawful authority and of no legal effect. The Tribunal shall decide the question in the light of rules 14 and 15, aforesaid after applying its mind. No order is made as to costs. M. Y. H. Order accordingly.