P L D 1983 Lahore 110 (PLP)

ABDUL SHAKURUL SALAM, J.-Petitioner and respondent No. 1 contested election to the Chairmanship of Union Council Kot Dhayani District Sialkot on 20-12-1979. Both got four votes each. Under rule 40 of the Punjab Local Council (Election) Rules, 1979, lot was drawn and the petitioner was lucky. He was declared. elected. Respondent No. 1 filed an election petition and the learned Election Tribunal came to the conclusion that one of the members Rehmat Ali son of Haveli against whom a status quo order had been passed on 9-12-1979 cast his vote and excluding that the petitioner would be left with three votes whereas respondent No. 1 had four votes, therefore, his election is set aside and respondent No. 1 is declared elected. It is vide impugned order dated 31-5-1981. This is challenged by the petitioner.

2. Learned counsel for the petitioner has contended that there was no way of saying that Rehmat Ali son of Haveli had voted. for the petitioner because the voting was by secret ballot. He referred to a decision m Writ Petition No. 826/81 reported as Rustam All v. Deputy Commissioner, Election Tribunal. Sialkot and others (1) of a learned Division Bench in which the learned Acting Chief Justice Mi. Justice Shameem Hussain Kadri observed : "The Tribunal relying on this evidence found that these three persons had cast votes in favour of the petitioner and the exclusion of the three votes would entitle the respondents to be declared as an elected candidates. Such evidence is violative of secrecy of ballot." He secondly contended that the learned. Tribunal had issued an order of status quo against Rebmat Ali son of Haveli, his action contrary to the order may entail penal action against him but acts done by him will not be invalid. He referred to Hakim Singh v. Vasan Singh and others (2), Lal Chind v. Lal and others (3) and Mst. Saeed Akhtar and others v. Lal Din and 6 others (4) wherein it was held that notwithstanding interim injunction prohibiting disposing of the land in dispute if it was nonetheless sold, the sale would not be invalid. Learned counsel also submitted that the case in which status quo order was passed on 9-12-1979 i. e. Muhammad Ali v, Rahmat All, was itself dismissed on 1-3-1980. The mentioned order would retroact, therefore, it would mean that his membership remained intact throughout. (1) P L D 1982 Lab. 518 ?????????? (2) A I R 1928 Lah. 639 (3) 1939 1 C 123?????????? (4) P L D 1981. Lah. 623

3. Learned counsel appearing for respondent No. 1 has submitted that the petitioner's nomination for membership was seconded by Rahmat Ali son of Haveli and since there was status quo order against him he could not second the petitioner, therefore, the latter's nomination was invalid. Consequently, he would not be taken as a contesting candidate. He read out subrule (7) of rule 59 which says : "The provisions of Chapter IV in regard to the poll; as far as may be, shall apply to the election of Chairman except that the result of count shall be prepared in Form XXI. . Then he refered to Chapter IV wherein rule 13 occurs which lays down : (1) . (2) Every proposal shall be made by a separate nominal on paper, in Form III, which shall be signed by the proposer and the seconder and shall contain. (a) ??????. (b) . , He next contended that another member Muhammad Shafi against whom there was status quo order was not allowed to cast vote, therefore, Rahmat Ali son of Haveli could not have been allowed to cast vote either. He finally submitted that because of the status quo order dated 9-12-1979 membership of aforesaid Rahmat Ali would amount to having been suspended, and therefore, he would not be able to perform duties of membership i. e. of casting of the vote.

4. After hearing the learned counsel for the parties and perusing the record with their assistance, we find that the crucial question in the controversy revolves round as to whether Rehmat Ali had cast vote in favour of the petitioner, as taken by the learned Election Tribunal. There was no way saying that Rahmat Ali had cast vote in favour of the petitioner. Voting was by secret ballot. Assumption of fact is unwarranted. The reliance of the learned counsel' for the petitioner on the afore-quoted judgment of the Division Bench of this Court clinches the matter. The votes being equal, the result was drawn by lots and the petitioner was lucky. There is no reason that that should be snatched from him. The contention of the learned counsel for the respondent that since Rehmat Ali had seconded petitioner's nomination that was invalid is not quite correct because no seconder was required under rule 59, sub-rule (2) which deals with election of Chairman as B it is provided therein that a member present at the meeting may propose the name of any other member for election as Chairman. This rule 59 having specifically provided for the election of Chairman, will govern the situation and sub-rule (7) relied upon by the learned counsel for the respondent No. 1 general election shall have no application. Therefore, the nomination of the petitioner was in order. The petitioner and respondent No. 1 having fought the election and if luck had favoured the petitioner in drawing of the lot, he is entitled to enjoy the office.

5. In view of what has been stated above the impugned order of the learned Election Tribunal dated 31-5-1981 which proceeds on the basis that Rehmat Ali voted for the petitioner being based on no evidence nor that could be taken into account, is without lawful authority. It is so declared and is of no legal effect. In the circumstances, however, the parties shall bear their own costs. s, A. x. Petition allowed.