1985 PLP 374 (MLD)

This writ petition calls in question the order of Election Tribunal, Faisalabad on the ground that it was patently illegal and contrary to the provisions of the statute.

2. The brief facts of the case are that the petitioner contested the election to the local council held on 28-9-1983 in respect of Halqa No. 5, Municipal Corporation, Faisalabad. There were in all seven contestants and petitioner Muhammad Hanif was declared as a returned candidate. The election of the petitioner was challenged by way of election petition by Ghulam Rasool, one of the contesting candidates.

3. The Election Tribunal on the pleadings of the parties framed the issue--whether the election of the returned candidate (respondent No.l) is void on account of the reasons as contained in the petition. Evidence was led on the said issue by both the sides. However, the Election Tribunal vide his impugned order relying on a Division Bench judgment of this Court in re; Misbah Munir v. Election Authority Punjab, Lahore and 12 others 1984 C L C 543 instead of declaring the election of the returned candidate void or election as a whole to be void, ordered re-polling at ladies polling station.

4. We are sorry to observe that the Election Tribunal while relying on the cited precedent ignored to peruse the same and to draw proper inferences therefrom. This authority is based on the interpretation of section 17 of the Punjab Local Government Ordinance which empowers the Punjab Election Authority to pass orders in terms of subsection (1) of section

17. On the other hand, the election petitions are governed by Election Petition Rules framed under the Punjab Local Government Ordinance. A bare reference to the Election Petition Rules would show that rule 12 spells out the powers of the Election Tribunal to make an order on the conclusion of the trial of an election petition. It contemplates four) kinds of orders as are spelt out in clauses (a), (b), (c) and (d) i.e. dismissing the petition; declaring, the election of the returned candidate to be void; and the petitioner or any contesting candidate to have' been duly elected; or declaring the election as a whole to be void. Thereafter, rule 13 specifies the grounds for declaring the election of returned candidate to be void. Rule 14 provides the grounds on which Election Tribunal can declare a person other than a returned candidate to be duly elected. Rule 15 lays the grounds for declaring the, election as a whole to be void. Rule 16 deals with eventuality of equality of votes. No power, therefore, can be spelt out to be available to the Election Tribunal to order re-polling at a particular polling station and, indeed the election Tribunal, could not have, on the analogy of Punjab Local Government Election Authority pass an order in terms of section 17 of the said Ordinance. It is thus obvious that there has been no fair trial of the election petition or the pleas of the parties raised before the Election Tribunal on account of misdirection in law. It is matter of no small surprise that the issue framed was whether the election as a whole could have been declared to be void and the, parties also led evidence in the light of the issue, but surprisingly while deciding the election petition, the Election Tribunal was swayed by considerations which were not germane to the issue before him. 5.???????? Since the matter has been left undecided and the relevant provisions of the statute have been overlooked, while setting aside the impugned order, we remand the case to the Election Tribunal for disposal in accordance with law. It will be open for the parties to raise before the Election Tribunal all the pleas that may be available to them. We, however, leave the parties to bear their own costs. M.Y.H.???????????