1983 PLP 747 (SCMR)

2. The facts briefly are that by Notification dated 1‑9‑1979 issued under rule 12(1) of the Punjab Local Councils (Election) Rules, 1979, both Muslim and non‑Muslim voters of the various Local Councils the Province of the Punjab were called upon to elect their representative from each electoral unit. In the Notification, dates were also specified for nomination of candidates, scrutiny of their nomination papers and various stages of the election. However, in the notification, the polling day for Muslim seats only. i.e. 25‑9‑1979, was specified. Elections were accordingly held to Muslim seats on that date.

3. The polling date for non‑Muslims was, however, specified as 2‑10‑1979 by a subsequent notification issued on 16‑9‑1979, But the Return ing Officer did not issue public notice as required by sub‑rules (3) and (4) of the said rule 12 and as such no one filed nomination papers nor was any election held for the, minority seat in Kacha Minawali Union Council. Nevertheless, election to "special interest" seats was held on 5‑12‑1979 and thereafter election to the office of Chairman and Vice‑Chairman of the said Union Council was held on 14‑1‑1980. Utma, respondent No. 1 herein, a non‑Muslim, thereupon challenged the legality of election of the Chairman and Vice‑Chairman of the Union Council by filing Writ Petition No. 733 of 1980. His case was that the Returning Officer having failed to perform his duty under sub‑rule (3) of rule 12, no election had been held to the minority teat and that, therefore, the election to the office of the Chairman and Vice Chairman held on 14‑1‑1980 was violative of the provisions of subsections (2) and (3) of section 26 of the Punjab Local Government Ordinance, 1979 read with rule 58 of the Punjab Local Councils (Election) Rules, 197:‑‑‑the writ petition was, however, dismissed‑ by a learned Single Judge of the High Court on 6‑2‑1980 by a short order holding that the notification dated 1‑9‑1979 was sufficient notice to the members of the minority community and that if the opportunity afforded had not been availed of, respondent No. 1 had no locus standi to challenge the election. Utma then filed Intra‑Court Appeal which was accepted by the impugned order, and in the result the election of the present petitioner as Chairman (Malik Umar, the Vice Chairman, having died in the meantime) was set aside and a fresh election to the seat was ordered in accordance with law.

4. It was nobody's case that the Returning Officer had consequent upon the issue of notification dated 16‑9‑1979, issued public notice in Form II as required under sub‑rule (3) of rule 12 or that any election had been held to the minority seat in the Local Council in question. That being so, the election to the special "interest" seats as also to the office of the Chairman and Vice Chairman was violative of sections 26 of the Ordinance. For facility, of reference, the relevant portions of this section are reproduced, below 26. (1) .. (2) As soon as may be, after the elections to Muslim and non- Muslim seats of a Local Council have been held and the names of the elected members have been notified, there shall be held an election to fill seats reserved in that local council for peasants, workers and women, as the case may be. (3) After the elections of members to fill seats reserved in a local council for peasants, workers and women, as the case may be, has been held and the names of the elected members notified, there shall be held an election of the Chairman and Vice‑Chairman of the local council. The questioned election was held also in contravention of sub‑rule (1) of rule 58, which says "As soon as may be, after the issue of notification of names of members of local councils including members belonging to minority communities and special interests, the Election Authority shall by notification appoint a date for a meeting of the members of each local council to elect the Chairman and Vice‑Chairman." These above provisions prescribe the steps that must be taken before election of Chairman and Vice‑Chairman is undertaking, a deviation from which would not be warranted.

5. Mr. Talib H. Rizvi conceded that if viewed in the light o f the pro visions of sections 26(2) and (3l read with rule 58, the petitioner would have no case, but relying on the provision of subsection (2) of section 37 of the Ordinance, which says: "A local council shall have the power‑to act notwith standing any vacancy in its membership", be argued that non‑holding of election to the minority seat was nothing else than a vacancy, notwithstanding which the Local Council could act. We find no force in the argument because the provision of section 37(2), as is clear from the scheme of the law, is not attracted in the situation which is controlled, as rightly held by the High Court, by section 26 of the Ordinance. The impugned order of the High Court is, therefore, not open to question and as such leave to appeal is refused. Petition dismissed.