1986 PLP 666 (MLD)

RUSTAM S. SIDHWA, J.‑‑This is a constitutional petition filed by Noor Hussain, petitioner, against the order of the Election Tribunal, Multan, dated 26‑10‑1981, deseating him from the office of Chairman of the Union Council No. 124 (Chak No. 384/W.B.), Tehsil Lodhran, District Multan.

2. The brief facts of the case are that Union Council No.124 consists of eleven electoral units, from each of which one member for the said Union Council was to be elected. The election of the said eleven members was held on 25‑9‑1979. Noor Hussain, the present petitioner and Ghulam Yasin, the present respondent No.2, were two of the eleven members elected to the said Union Council. The election of the said 11 members was notified vide notification, dated 9‑10‑1979, as published in the Punjab Gazette, dated 13‑11‑1979 (Annexure 'A' to the petition). By virtue of the programme notified by the Punjab Local Councils Election Authority vide its tele-printer message, dated 6‑10‑1979 (Annexure A/1 to the petition), the said elected members were directed to take their oath on 9‑10‑1979 before the Returning Officer, in view of the provisions contained in Rule 64 of the Punjab Local Councils (Election) Rules, 1979. Accordingly, all eleven members took oath on 11‑10‑1979. The said elected members thereafter, as required by section 11 of the Punjab Local Government Ordinance, 1979, and Rule 49 of the Punjab Local Councils (Election) Rules, 1979, elected one Allah Yar as a peasant member to the said Union Council on 12‑12‑1979, which election was notified vide notification, dated 15‑12‑1979, as published in the Punjab Gazette of the same date (Annexure C/1 to the petition). Pursuant to Rule 58 of the Punjab Local Councils (Election) Rules, 1979, the Election Authority fixed 20‑12‑1979 as the date for the meeting of the members of all the Union Councils in the Punjab to elect their Chairman and Vice‑Chairman. The instructional letter in the said connection (Annexure E/1 to the petition) called upon the Deputy Commissioners to issue on 17‑12‑1979 notice to all the members of the local councils informing them of the place of the said meetings and appointing Presiding Officers to preside over the same and to supply by 18‑12‑1979 to the Presiding Officer concerned the list of members of the Local Councils. The list of members sent to the Presiding Officer in respect of Union Council No. 124, contained the names of eleven members, but not that of Allah Yar, the peasant member, as he had not by then taken oath. On 20‑12‑1979 i.e. the date of the meeting to elect the Chairman and Vice‑Chairman, it was found that the name of Allah Yar, the peasant member, was not included in the list of members supplied by the Deputy Commissioner to the Presiding Officer concerned. A request was made on behalf of Ghulam Yasin, respondent No.2, to have his name included, but though Allah Yar submitted that he had taken the oath a day earlier, he could not produce any proof to that effect, whereupon he was declared ineligible to take part, in the proceedings. Thereupon, Haji Ghulam Yasin, respondent No.2, with four other Muslim members, walked out of the meeting and did not take part in the proceedings: They, however, filed an objection petition before the Presiding Officer, as is apparent from Annexure 'K' to the petition. After their departure, Nur Hussain, petitioner, was formally proposed as candidate for Chairman. There being no other proposal, Noor Hussain, petitioner, was declared duly elected. On the same day, Allah Yar, the peasant member, then proceeded to Lodhran and there took oath before the Assistant Commissioner, Lodhran. Being aggrieved by the election of Noor Hussain, petitioner, to the office of Chairman, Ghulam Yasin, respondent No.2, filed an election petition before the Election Tribunal, Multan, which was accepted on 26‑10‑1981. In setting aside the election of Noor Hussain, petitioner, the Election Tribunal was guided by the fact that Allah Yar, the peasant member, by virtue of the amendment to section 26 of the Punjab Local Government Ordinance, 1979, was not disqualified to cast vote at the time of election of the Chairman, even though he had not taken oath by then. Being aggrieved by the decision of the Election Tribunal, Multan, Noor Hussain, petitioner, filed the present constitutional petition, which is now before us for disposal.

3. On behalf of the petitioner, it is contended that Ghulam Yasin, respondent No.2, not being a candidate for the office of Chairman, he could not file an election petition and that since his election petition was incompetent, the order deseating him was illegal. It was also contended on his behalf that as Allah Yar, the peasant member, had not taken an oath before the meeting to elect a Chairman was convened on 20‑12‑1979 at 3‑00 p.m., he was not competent to vote at the said meeting.

4. On behalf of the respondent' it is contended that as the Presiding Officer had illegally debarred Allah Yar, the peasant member, from voting at the election of Chairman, the respondent, who was proposing to fight the election of Chairman, could not do so and found himself compelled to boycott the said meeting. In this connection, learned counsel referred to Annexure R/1 to the written‑statement, and the statement of Nur Hussain, petitioner, before the Tribunal wherein he had admitted that he had gone with five supporters and the respondent also had gone with five to fight the election of Chairman. In this view of the matter, it was urged that he be considered as a contesting candidate and as one competent to move the election petition. As regards the second contention raised by the learned counsel for the petitioner, the learned counsel submitted that in view of the amendment to section 26 of the Punjab Local Government Ordinance, 1979, the peasant member was entitled to vote at .the election of Chairman, even though he had not taken oath and that as he was illegally debarred, this Court should not exercise its discretion by accepting this writ petition.

5. We have given our anxious consideration to this case. In view of subsection (1) of section 12 and subsection (2) of section 24 of the Punjab Local Government Ordinance, 1979, read with sub‑rule (2) of Rule 3 of the Punjab Local Councils (Election Petitions) Rules, 1979, and sub‑rule (2) of Rule 59 of the Punjab Local Councils (Elections) Rules, 1979, there cannot be any doubt that respondent No.2 could not have filed the election petition before the Election Tribunal, as he was not a candidate for, the election to the said office. Under sub‑rule (2) of Rules, 59 of the Election Rules a candidate to the office of Chairman must be proposed by a member other than himself, whereupon the member proposed becomes in law the "candidate for election to the office of Chairman." Where, however, none of the members present propose the name of another member as Chairman, any member then present may propose his own name, whereupon he then becomes a candidate for election to the said office. In the instant case, the supporters of respondent No.2 did not propose the name of respondent No.2 for the office of Chairman, but walked out of the meeting, after lodging certain written objections. One of the supporters of Noor Hussain, petitioner, did propose the name of the petitioner. In these circumstances, respondent No.2 was not a candidate for the office of Chairman and as such the petition filed by him before the Election Tribunal was incompetent. The decision of the Election Tribunal, therefore, on the said application was without lawful authority. As regards the second contention raised on behalf of the petitioner, though Rule 49 of the Election Rules ensures that Muslim members and minority members take their oath, before electing members to represent the special interest seats, Rule 58 does not ensure that members representing special interest seats should take their oath, before electing the Chair ma or Vice‑Chairman in view of sections 26 (as amended) and 27 of the Ordinance; it would appear that the member representing special interest seats can take their oath before the first meeting of the Council, which is convened after the Chairman is elected. This contention, therefore, merits rejection, for reasons given by the Election Tribunal in his judgment, which we fully approve. It was contended on behalf of the respondent No.2 that as Allah Yar, peasant member, had been illegally debarred from voting at the election of Chairman, that the decision of the Election Tribunal should not be upset and that this Court should not exercise its discretion in favour of the petitioner by accepting this petition. In this connection it was submitted that Noor Hussain, petitioner, in his statement before the Election Tribunal (Annexure R/1 to the written statement) had himself admitted that on the day of election, if Allah Yar, the peasant member, had been allowed to vote, he had the support of five members and respondent No.2 had the support of five. Whether this be true or not, the position still remains that respondent No.2 and his group boycotted the election of Chairman, for which they are themselves to blame. If respondent No.2's name had been proposed formally and then they had boycotted the election, the matter would have been different. The oral submission by any proposed candidate or his rival that he or the other had the support of such and such members, is not guarantee that they would have voted for him or the other, as stated, specially when the election is contested and poll is held through secret ballot, as provided by sub‑rule (5) of Rule 59 of the Election Rules. So many voters who profess to be supporters, vote for the opposite candidate. No unequivocal inference can; therefore, be drawn that the respondent No.2 would definitely have received six votes for himself, including his own and that of Allah Yar. In the absence of any proof that he was formally proposed as a candidate for the election of Chairman, he had no locus standi to challenge the election of the petitioner as Chairman before the Tribunal or the illegal prevention of Allah Yar to vote at the election in writ petition. Allah Yar alone had the right to challenge his illegal disqualification in writ. In this view of the matter, there is nothing to justify this Court from not exercising its discretion in the petitioner's favour.

6. The upshot of the above discussion is that the Election Tribunal acted illegally in processing the petition of respondent No.2, who was not a candidate for the office of Chairman. The proceedings and the final order passed thereon being without lawful authority, are liable to be set aside.

7. For the foregoing reasons, this petition is accepted and the decision of the Election Tribunal, Multan, dated 26‑10‑1981, is hereby set aside. There shall be no order as to costs. H.B.T. Writ issued.