1993 PLP 118 (MLD)

Syed Azad Hussain Naqvi for Respondents. This Constitutional petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, to impeach the order passed by the District Judge (Election Tribunal), Muzaffarabad on September 30,1992, whereby the objection raised by the petitioner to the effect that without impleading the Returning Officer the election petition filed by the petitioner was not maintainable, was turned down.

2. The facts culminating into the present writ petition briefly stated are that petitioner and contesting non‑petitioners Nos.2 and 3 contested elections for Union Council Heer Kotli. The petitioner was declared successful and a Notification to that effect was published on December 1, 1991. The success of the petitioner was called in question through the election petition by respondent No.2, before the learned District Judge (Election Tribunal), Muzaffarabad on January 22, 1992, who issued notices to all the defendants including the petitioner. The petitioner filed his objections wherein he pleaded n that the Returning Officer was a necessary party as allegations have been levelled against him in the election petition. The learned District Judge (Election Tribunal), decided the preliminary objection against the petitioner who having no other alternate and efficacious remedy available to him, has assailed the same through the present writ petition.

3. I have heard the learned counsel for the parties and have also gone through the entire record made available with this petition.

4. Under sub‑rule (4) of rule 56 of the Azad Jammu and Kashmir Local Bodies Election Rules of 1983, the petitioner was required to array in the line of defendants, the contesting candidates in his petition who were rightly impleaded as such in present election petition. Furthermore, according to this Rule, in the body of the petition, he was required to plead full particulars of any corrupt practices, material irregularity or other illegal acts along with the names of the persons responsible for such practices or acts by mentioning the date and place of the commission of every such corrupt practice, material irregularity or other illegal acts.

5. In Election Petition which has been filed in this case, in sub‑para. (2) of para. 2, it has been pleaded by respondent No.2 as under: ‑‑‑

6. Precisely, in the above‑referred paragraph, the allegations have been levelled against the Returning Officer. It has not been said that the petitioner with‑the connivance of the Presiding Officer, has obtained certain rejected votes in his favour on account of which, he was finally declared successful. Keeping in view the language used in this paragraph, as no allegation has been levelled against the petitioner, only the Returning Officer is the proper party who can answer the allegation so levelled. In the light of the pleadings of the election petition, the Returning Officer is proper party whose presence is necessary for effective adjudication of the matter referred to in afore‑ 8 mentioned sub‑para of the election petition.

7. The learned District Judge was right in holding that under sub‑rule (4) of Rule 56 only a contesting candidate is to be arrayed in the line of defendants. But in the above paragraph, nothing has been attributed to the contesting petitioner, therefore, at the final adjudication of the matter agitated in sub‑para. (2) of para. 2 of the election petition, some opinion would have to be formed against the Returning Officer who unformately, has not been arrayed in the line of defendants. Under Rule 59 of the aforesaid Rules, the C.P.C. has been made applicable. The right of hearing must be given to all concerned until and unless its application has been categorically excluded. The petitioner should have amended his petition by invoking the enabling provisions of C.P.C. in order to proceed with the election petition against the contesting petitioner, or should have impleaded all the proper and necessary parties in the line of defendants in the election petition.

8. In the light of the pleadings of the election petition, the Returning Officer, as said in the early part of this order, is a proper party whose presence before the competent forum seems to be necessary. Therefore, while accepting' this writ petition, the impugned order of the learned District Judge (Election Tribunal), Muzaffarabad, dated September 30, 1992 is set aside. The petitioner is directed to implead the Returning Officer in the line of defendants if he intends to pursue his election petition in its present form. AA./530/H.CA. Petition accepted.