P L D 1988 Peshawar 106 (PLP)

NAZIR AHMED BHATTI, J.‑‑Sardar Khalil‑ur‑Rehman, petitioner and Sardar Muhammad Yaqoob and others, respondents 1 to 4 were candidates for election from Ward No.2 of District Council, Abbottabad held on 30‑11‑1987. There were 26 polling stations for the said ward. Polling took place in all the polling stations except Polling Station No.297 Maira Kalan where at about 11‑30 a.m. on the day of poll a disturbance broke out with the result that polling was stopped. Polling was commenced again at this polling station at 12‑30 p.m. but it was again stopped at 1‑45 p.m. when polling agents/ supporters of the candidates took away ballot boxes of the candidates. In consequence no further polling could be held. In respect of this incident a report was made by the Presiding Officer of the said polling station, respondent No.5, at 6‑30 p.m. on 30‑11‑1987 at Police Station Bagnotar where F.I.R.No.193 was recorded. The Presiding Officer also intimated this fact of obstruction of the poll at his Polling Station to the Returning Officer respondent No.6, but the latter instead of fixing a fresh date for re‑poll in polling station No.297, with the approval of the Election Authority respondent No.7, as required by rule 26 of the N.‑W.F.P. Local Councils Elections Rules 1979 (hereinafter referred to as the Rules), where 1,655 votes, both male and female, have been registered, published the result of the election of ward No.2 by notification dated 2‑12‑1987 and declared Sardar Muhammad Yaqoob respondent No.l to have been elected by getting majority of votes. The respondent No.6 was required under rule 38 of the Rules to obtain result of the count of the votes from all the polling stations comprising the electoral Ward No.2 and upon count of all the ballot papers was bound to consolidate the result and then declare any of the contesting candidates as duly elected. The petitioner has filed the writ petition in hand with the prayer that the Notification dated 2‑12‑1987 be declared and adjudged as without lawful authority and of no legal consequence‑and a direction be issued to respondents No.6 and 7 to hold fresh election at Polling Station Maira Kalan No.297 of Ward No. 2.

2. The respondent No.l contested the writ petition and in his written statement mentioned that the matter involved disputed questions of fact requiring evidence and the dispute could only be adjudicated upon by the Election Tribunal and the High Court lacked jurisdiction. It was further mentioned in the written statement that tile petitioner was responsible for lifting his ballot box from polling station and he had not come to the Court with clean hands. It was further mentioned in the written statement that the polling staff remained on duty till 5‑00 p. m. and the electors were also present but the petitioner in connivance with Sajjad Hussain respondent No.2 made every effort to thwart the process of voting.

3. Respondent No.5 in his written statement admitted that the polling was disrupted in the polling station presided over by him and that after the disruption no vote had been cast and a report of the incident had also been made to the. Police Station Bagnotar. The Returning Officer respondent No.6 also submitted written statement wherein it was admitted that polling agents of some candidates forcibly took away ballot boxes and the facts thereof were mentioned in the F.I.R. lodged by the Presiding Officer. It was, however, mentioned by respondent No.6 in the written statement that the polling staff remained present at the polling station and issued ballots to the voters who wished to cast their votes and after some interruption the polling was resumed and continued till 5 p.m., and, therefore, fresh poll was not necessary.

4. We have heard learned counsel for the parties at length.

5. This is an admitted fact that polling at Polling Station No.297 Maira Kalan was disrupted and the agents/supporters of the petitioner and respondents 1, 2 and 4 had taken away the ballot boxes when only 429 ballot papers had been issued. There was provided no ballot box of Sardar Muhammad Afsar respondent No.3 at this polling station. This information was conveyed to the Returning Officer by the Presiding Officer of that polling station through form containing result of count, copy Exh. D‑

29. Since there were more than one polling station of electoral Ward No.2 for election to the District Council Abbottabad, according to rule 38 of the Rules the Presiding Officers of all the Polling Stations had submitted result of count to the Returning Officer and the latter was to consolidate the result `and then to declare the result. The Returning Officer received result from all the 26 polling stations but the return submitted by the Presiding Officer of Polling Station 297 Maira Kalan clearly stated that no election had taken place in the said polling station due to disruption by agents/supporters of the candidates. When the Returning Officer had received this information from the Presiding Officer he had to immediately report the circumstances of stoppage of polling to the Election Authority and appoint, as soon as possible with the approval of the Election Authority, a day for fresh poll and fix a place at which and the hours during which such fresh poll shall be taken and all voters had to be allowed to vote at the fresh poll and no vote cast at the poll which was stopped was to be counted. When the aforesaid exercise specified under rule 26 of the Rules had been carried out only then the Returning Officer could declare the result under the provisions of rule 38 of the Rules.

6. We have very anxiously considered this aspect' of the matter and we find that the declaration of result by Notification dated 2‑12‑1987 was illegal and without lawful authority on the part of the Returning Officer respondent No.6. A clear information was available with him that polling at Polling Station No.297 had been interrupted and obstructed for reasons beyond the control of the Presiding Officer and no polling had taken place after the issue of 429 ballot papers which were also not available with the Presiding Officer as the same had been taken away in the ballot boxes by the agents/supporters of the candidate. As such under the provisions of rule 26 of the a Rules it was the legal duty of the Returning Officer to appoint a day for fresh poll with the approval of the Election Authority and all the voters were to be allowed to vote at the fresh poll. Instead of adopting the aforesaid course of action the Returning--Officer declared the result. By this exercise the Returning Officer has not only acted without lawful authority but he also deprived the voters of the polling station to exercise their right of casting the vote. He deprived the whole population from exercising their right of vote guaranteed under subsection (2) of section 26 of the N.‑W.F.P. Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance).

7. The learned counsel for respondent No.l conceded that polling had been stopped at Polling Station No.297 and that the Returning Officer should have adopted the course of action specified in rule 26 of the Rules. But his contention was that for this matter the petitioner could seek his remedy before the Election Tribunal appointed under section 39‑B of the Ordinance. His contention was that the Election Tribunal so appointed had the power under sub‑rule (2) of rule 44‑B of the Rules to declare. (a) that the election of the returned candidate was void: (b) that the election of the returned candidate was void and that the petitioner or some ether person had been duly elected; or (c) that the election as a whole was void. The contention of the learned counsel for the respondent No.l was that in an election petition filed by the petitioner before the Election Tribunal, the petitioner could pray that since the Returning Officer had not complied with the provisions of rule 26 of the Rules as such .the election of the returned candidate be declared as void. The learned counsel further contended/that since this remedy was available to the petitioner and it being an adequate remedy he could not file the writ petition in hand. On the contrary the learned counsel for the petitioner asserted that it was not a question of declaring election of respondent No.1 as void but it was a case where the Returning Officer had to be ordered to perform his duty which by statute he was bound to perform. We have also considered this aspect of the matter very anxiously. We can say without any fear of contradiction that on the receipt of the information about stoppage of poll at polling station No.297 the Returning Officer was duty bound to adopt the course of action as is laid down in rule 26 of the Rules and before completing that course of action he could not declare the result. If the officer concerned has failed to discharge the mandatory duty imposed upon him by law he can be certainly compelled to do that which the law required him to do. In the case in hand the Returning Officer was required to order re‑poll in Polling Station No.297 on account of the circumstances reported by the Presiding Officer to him before making the declaration of result of the election to Ward No.2, but he failed to adopt that course of action. He was by law required to order re‑poll. This is not the same thing as contesting the validity of election or challenging the election of a declared candidate. The petitioner hat nowhere in his writ petition sought the relief that the election of respondent No.1 be set aside. The actual prayer in the writ petition is that the Returning Officer be directed,; to perform his statutory duty imposed upon him by rule 26 of the Rules. By no stretch of imagination it can be said that election of the respondent No.1 has been challenged in the writ petition in hand. By ordering that the Returning Officer shall adopt the course of action envisaged by rule 26 of the Rules we will not be going into disputed questions of fact. In a proceeding of this nature disputed questions of fact will not be gone into. Moreover, such relief cannot be granted by the Election Tribunal. The petitioner has not sought the relief that the election of respondent No.1 be declared void or that he be declared elected instead of the respondent No.1 or that the election be declared void as a whole. What the petitioner has sought in the writ petition in hand is that the Returning Officer be directed, to, perform his duty, which Rule 26 of the rules has imposed upon him. This is not the same thing as contesting the validity of election or challenging the election of a declared candidate and for this reason the dispute raised in the writ petition in hand does not come within the exclusive jurisdiction of the Election Tribunal. Besides the three reliefs mentioned in sub‑rule (2) of rule 44‑B of the Rules of the Election Tribunal has no jurisdiction to grant relief which is claimed in the writ petition in hand. As such we are of the confirmed view that in a proceeding of this nature where it has been shown upon the face of the record that the Returning Officer failed to discharge his duty a direction of the nature as contemplated by Article 199 will issue and in this respect we respectfully draw support from the case reported as P L D 1967 S C.569.

8. In so far as the question of the petitioner not coming to this Court with clean hands is concerned we note that the ballot boxes of all the candidates were removed from the polling station and the petitioner cannot be singled out in this respect. Moreover, it was not the petitioner himself who took away the ballot box but it were the agents or supporters of the candidates who did this. The blame of not coming with clean hands as such, cannot be thrown on the shoulders of the petitioner.

9. The upshot of the above discussion is that it was brought to the notice of the Returning Officer by the Presiding Officer of Polling Station No.297 Maira Kalan that polling in that polling station had been stopped due to obstruction beyond the control of the Presiding Officer. The former was bound by the provisions of rule 26 of the Rules to order re‑election in that polling station and after the re‑election had taken place and all the voters of that polling station had been allowed to cast their votes, only then the Returning Officer could declare the result. By declaring the result without ordering re‑poll the Returning Officer acted in an illegal manner and against the provisions of rule 26 of the Rules. Obviously he failed to do what he was required by law to do and in this manner the act of declaration of result was done by him without lawful authority and thus, is of no legal effect. This action of the Returning Officer respondent No.6 cannot be a subject‑matter of election petition and remedy available to the petitioner was by way of the writ petition in hand only.

10. Consequently we would accept this writ petition, quash the Notification dated 2‑12‑1987 issued by respondent No.6 declaring the result of the poll of Ward No.2 of District Council Abbottabad and would direct him to adopt the course of action envisaged by rule 26 of the Rules in so far as Polling Station No.297 Maira Kalan is concerned and thereafter to compile the result and only then issue notification of election of the successful candidate. There shall, however, be no order as to costs. A.A. /623/P Petition accepted.