2007 PLP 1764 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition assailed the judgment/order-dated 5-7-2006 passed by the Election Tribunal Gujranwala/District and Sessions Judge Hafizabad, to be declared illegal, void and of no legal consequence, whereby election petition filed by the petitioners was rejected by invoking to provisions of Order VII, rule 11, C.P.C.

2. Succinctly, relevant facts are that petitioners contested the recent Local Bodies Election held in August, 2005 to the offices of Union Nazim and Union Naib Nazim, of Union Council No.59/23 Nandipur Town, District Gujranwala. Respondents Nos.3 and 4 were declared successful, leaving the petitioners to file an election petition before the Notified Election Tribunal (respondent No.1).

3. Respondents Nos. 3 and 4 contested the election petition by filing their written reply. They also moved an application under Order VII, rule, C.P.C. for summary rejection of the election petition, on the ground that petition No.1 was not Matriculate and thus could not assail the election of the returned candidates. The learned Presiding Officer of the Election Tribunal, after getting reply to the application of respondents Nos.3 and 4 under Order VII, rule 11, C.P.C. and hearing of the parties, accepted the same on 5-7-2006 and dismissed the election petition vide his impugned order dated 5-7-2006. Petitioners being aggrieved of the dismissal of their election petition, filed instant constitutional petition with the relief noted above. Respondents Nos.3 and 4 who are the only contesting respondents, in respondents, in response to notice by this Court, have appeared and were represented through their counsel.

4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, petitioners filed their joint nomination papers, which were scrutinized and were accepted by the Returning Officer. They also participated in the election and lost the same against the respondents Nos.3 and

4. After issuance of notification of the result by the Election Commission of Pakistan, petitioners filed an election petition before the Notified Election Tribunal under rule 65 of the Punjab Local Government Elections Rules, 2005. According to this Rules, no election was to be called in question except by way of an election petition, made by a candidate. For maintaining an election petition, one has to be a candidate only. Now rule 2 (iv) of the said rules defined "Candidate" as a person nominated for the election of a member, a Nazim or Naib Nazim of any council. "Contesting Candidate" has been defined in rule 2(v) as a candidate who has been validly nominated for the election of a member of any council or Nazim/Naib Nazim of District, Tehsil, Town or Union Council and has not withdrawn his candidature on or before the withdrawal date. "Returned candidate" has been elaborated by rule 2(xxi) of the rules (ibid) as a candidate who has been declared elected for any Union Council. Similarly "validly nominated candidate" has been said to be a candidate by virtue of rule 2(xxvi) whose nomination papers have been accepted under Rules of 2005. Such terms of "Validly nominated candidates" and "contesting candidates" have also been used in Rules 15 to 20 of the Rules under discussion. The entire scheme of the law governing the local bodies elections and especially the provisions of above referred Rules 65 of the Rules 2005 clearly depicts that the petitioners were candidates for the Local Bodies Elections held in August, 2005 and they could validly maintain election petition challenging the result of the election.

5. Stance of respondents Nos.3 and 4 that they had filed objections to the nomination papers of the petitioner No.1, before the Returning Officer which were incorrectly rejected on 15-8-2005 on the ground that time for filing of those has already lapsed and that, they also filed an appeal before the DRO which was also erroneously dismissed the same day, thus petitioners were not competent to maintain the election petition, has not impressed me to upset the entire scheme of law discussed above: On their initiation, provisions of Order VII, rule 11, C.P.C. could only have been invoked had the election petition not disclosed any cause of action or the same c had been barred by law but none of these eventualities existed in this case to non-suit the petitioners, summarily. Above all, procedure for trial and dismissal of election petition was prescribed by the Punjab Local Government, Elections Rules, 2005, which c envisaged the grounds for dismissal of an election petition during trial, as per its Rule 72 which reads as under:-- "72 The dismissal of petition during trial.

The Tribunal may dismiss an election petition if

(a) the provisions of rules 67 and 70 have not been complied with or (b) the allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity or other illegal act."

6. The above reproduced rules manifests that none of the violation mentioned therein, occasioned during trial of the election petition filed by the petitioners, thus the Election Tribunal exceeded its jurisdiction by passing the impugned order.

7. Election petition was filed by both the candidates for the offices of Union Nazim and Union Naib Nazim. Assuming for the sake of arguments that petitioner No.1 was not qualified to maintain the election petition being not a Matriculate, the election petition to the extent of petitioner No.2 should have been allowed to continue because after notification of the result of the election, joint candidature comes to an end, as per law laid down by this Court in the case of Ch. Maqbool Ahmad and others v. Malik Falak Sher Farooqa ADJ/Election Tribunal and others (PLD 2003 Lahore 138), Punjab Local Government Ordinance, 2001, after notification of the election result, detailed functions/duties of both the offices of Union Nazim and Union Naib Nazim separately and none of them is answerable for the omissions/commissions of the other. Looking from any angle, impugned order cannot be justified on the basis of any touchstone or principle known for administration of justice. Scan of record and impugned judgment revealed that controversy was incorrectly decided by respondent No.1 and serious violation of law has been committed, thus the same is not maintainable.

8. For the reasons noted above, instant petition is bound to succeed and is accordingly accepted. Impugned order dated 5-7-2006 is declared to be void and non-existent in the eye of law and the writ as prayed is issued with no order as to costs. F.B./M-212/L Petition accepted.