1999SCMR2275 (PLP)

AJMAL MIAN, C.J:

This is a petition for leave to appeal against the judgment dated 7-10-1998 of a learned Division Bench of the Lahore High Court in Writ Petition No. 10998 of 1998, filed by the respondent No. 1 against the Authority, whereby re-polling of Electoral Unit No.79, Zila Council, Kasur (hereinafter referred to as the Electoral Unit) had been ordered on the petition of the present petitioner under section 17 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance), allowing the same by setting aside the above order and declaring the same to be without jurisdiction:

2. The brief facts are that the petitioner and the respondent No. 1 were contesting candidates alongwith four others. It appears that on 5-5-1998 the Returning Officer allocated to the petitioner sewing machine as the election symbol, without realising that the same reserved for the minority seats and because of that it was not printed on the ballot paper. The above fact was discovered on 20-5-1998 i.e. the election day which fact was confirmed by the Returning Officer in his report. Upon discovering the above mistake, the petitioner was allocated new symbol, namely, motor-car. It appears that the petitioner and the respondent No. l alongwith the other candidate contested the election. The Presiding Officer compiled the results of all the Polling Stations and the Returning Officer tabulated the same, which was unofficially announced. According to it, respondent No. l was declared as the returned candidate for having secured 919 votes, whereas the petitioner obtained. 633 votes. It appears that on 22-5-1998, the petitioner filed a petition under section 17 of the Ordinance before the Election Authority seeking the setting aside of the entire election. The above petition was resisted inter alia by respondent No.

1. However, the Election Authority by its above order dated 1-6-1998, held that under Rule 23 of the Punjab Local Councils (Elections) Rules, 1979, the Returning Officer was under obligation to allot one of the specified symbols on the ballot paper to each of the contesting candidates and as the specified symbol was not allotted to the petitioner and because an unspecified symbol of sewing machine was allotted to the petitioner which was not present on the ballot paper, the same had vitiated the election. Accordingly, the Election Authority passed the above impugned order which was assailed in the above terms. The petitioner has, therefore, filed the present petition for leave to appeal.

3. In support of the above petition we have heard Dr. M. Mohyuddin Qazi, learned counsel appearing for the petitioner, and Mr. Sh. Altaf Elahi, Additional Advocate-General, Punjab. In support of the above petition it has been vehemently contended that since the result of the Electoral Unit was gazetted on 10-6-1998, and that too on the assumption that the High Court had so directed, the Election Authority had the power to pass the above impugned order on 1-6-1998, which was not covered by subsection (2) of section 17 of the Ordinance.

4. It may be pertinent to reproduce subsection (2) of section 17 of the Ordinance which reads as follows:

" 17. (2) Nothing contained in subsection (1) shall be construed to mean that the Election Authority has power to enquire into any matter or pass any order in respect of anything relating to an election which can be called in question before an Election Tribunal by an election petition under this Ordinance."

5. We are inclined to grant leave to consider the question as to, whether the High Court has rightly concluded that the Election Authority had no jurisdiction to pass the aforesaid impugned order dated 1-6-1998, in view of above quoted subsection (2) of section 17 of the Ordinance.

6. Leave is, accordingly, granted. The above notification dated 10-6-1998 shall remain suspended till further order. The appeal arising from the above petition may be fixed for hearing at an early date. M.H.A./N,57/S Leave granted.