1985 PLP 957 (SCMR)

SHAFIUR RAHMAN, J.‑‑ The petitioner seeks leave to appeal against the judgment of the Lahore High Court, dated 27‑5‑1984 whereby a constitutional petition filed by the respondent was allowed, the decision of the Election Tribunal was held to be without lawful authority and the election petition filed by the petitioner was declared to be time barred. The petitioner and the respondent contested the elections from electoral Unit No.9, Municipal Committee Chichawatni, District Sahiwal. The respondent was notified on 5th of October, 1983 as the returned candidate from that unit defeating the petitioner. On 15‑11‑‑1983 the petitioner filed an election petition before the Tribunal to which the respondent took the objection that it was incompetent as it was filed more than 30 days after the notification of the election. The petitioner took up the plea that as the Election Tribunal itself had come into existence on 1‑11‑1983, an election petition filed within thirty days there from was in time. The Election Tribunal on this preliminary objection upheld the view of the petitioner. The respondent invoked the constitutional jurisdiction of the High Court challenging the a3sumption of jurisdiction by the Tribunal on such a time‑barred application. The High Court took the view that as section 5 of Limitation Act had not been made applicable to the proceedings before the Election Tribunal and the law required that such petitions be filed within thirty days of the notification of the returned candidate it was not possible to condone the delay. The operative part of the order of the High Court is as follows:‑ "in face of the clear provision of rule 3 of the Punjab Local Councils (Election Petitions) Rules, 1979, prescribing the period of limitation of 30 days for presenting election petition to run immediately after the publication of the notification in the official Gazette it is not possible to share the view of the Tribunal taking the terminus a quo to commence on the date of its establishment. The impugned order of the Tribunal has no blessing of law. Accordingly it is declared to have been passed without lawful authority and to be of no legal effect and consequently respondent 2's petition before the Tribunal is dismissed for having been brought out of time." The learned counsel for the petitioner contended before us that the High Court has taken an erroneous view of the law because the petitioner could not approach the Tribunal as long as the Tribunal was not itself set up and on the view taken by the High Court the Tribunal set up after thirty days of the notification of the returned candidate could deny altogether the right to contest the result by means of an election petition. He has relied on the decision of this Court in Hap Qadir Bakhsh v. Province of Sind 1982 S C M R

582. On our further inquiry after an adjournment the learned counsel has put in a notification showing that Election Tribunals were in fact notified in September, 1983 and for the electoral unit in question Fifth Additional District and Sessions Judge, Sahiwal District was notified as the Election Tribunal. On the 24th day of September, 1983, the District and Sessions Judge, Sahiwal, had pointed out that there was no post of fifth Additional District and Sessions Judge in the District. The one that existed stood abolished. It was thereafter that the notification appeared on the 1st of November, 1983 that the Election Tribunal shall be the Fourth Additional District and Sessions Judge, Sahiwal. The petitioner, therefore, claims that the limitation should start from Ist of November when remedy was in fact and in law became available to him and not on 5‑10‑1983 when the notification of the returned candidate appeared. The question raised by the learned counsel for the petitioner is in fact of law of general application and public importance for it appears prima facie on the view taken by the High Court that they period of limitation starts notwithstanding the absence of the it and where a Tribunal is created after the period of limitation, the party would be without remedy as section 5 of the Limitation Act will not be of avail to it. The recording of a more authoritative pronouncement is required. Leave to appeal is, therefore, granted. Security in the sum of Rs.2,

500. To be heard on the present record with liberty to the parties to file such additional documents as they consider necessary. M. I Leave granted.