1992 PLP 1649 (MLD)

(b) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑ ‑‑‑‑R.5

Validity of Local Council Election‑‑‑Remedy‑‑‑For declaration in the nature that election as a whole, was void, an independent forum with plenary power to decide validity of election had been created. Malik Abdus Sattar Chughtai for Petitioner. Farooq Bedar, Addl. A.‑G. and Dr. M. Mohi‑ud‑Din Qazi for Respondents Nos. 2 and

3. TANVIR AHMAD KHAN, J.‑‑‑Petitioner as well as respondent No.1 contested election for the seat of Councillor of Electoral Unit No.6 of Town Committee Jawarian held on the 28th of December, 1991 under the Punjab Local Government Ordinance, 1979. It is the case of the petitioner that he secured 210 votes as compared to his rival candidate, respondent No.1, who secured 202 votes as is reflected from the copies of the results issued in Form XII on the date of election by the Presiding Officer appended with this writ petition. Subsequent thereto petitioner was asked by the Chirman, Town Committee on 2nd of January, 1992 to attend the proceedings of oath taking to be scheduled for 4th of January, 1992. Grievance has been made that at the initiation of respondent No.1, the Deputy Commissioner, on 1‑1‑1992 moved the Punjab Local Councils Election Authority and apprised about the alleged mistake committed by the Presiding Officer in the compilation of the votes in the Electoral Unit No.6. The Secretary, Punjab Local Councils Election Authority in turn directed the Deputy Commissioner to proceed in the matter in accordance with the procedure laid down in rule 43 of the Punjab Local Councils Election Rules, 1979. Learned counsel for the petitioner has argued that the respondents have got no jurisdiction to withhold the issuance of notification of the result of the Electoral Unit. He has further stated that after the announcement of the result in Form XII the respondents Nos.2 and 3 have got no authority to interfere as the result was publicly announced. Respondent No.1 as well as the learned Law Officer have appeared in response to notice issued by the Court. We have noticed that respondent No.1, Dr. Allah Bakhsh, before the issuance of the notification moved an application pointing out certain mistakes committed in the compilation of the result by the Presiding Officer which, according to him, took place due to the identity of the names of the contesting candidates from Wards Nos. 5 and

6. The Assistant Commissioner recorded the statement of the Presiding Officer who categorically stated that he inadvertently incorporated the votes of Ward No.5 into Ward No.6 as in both these Wards two different candidates with the name of Allah Bakhsh contested the election. It has further been stated by the Presiding Officer in his statement that the correction was made without opening the bags of the votes. Consequent to this correction respondent No.1 has been notified as a successful candidate from Ward No.6. We have considered the contentions of the respective parties at limine stage. The matter pertains to a controversial factual enquiry which can only be resolved through recourse to the election petition as provided under section 24 of the Punjab Local Councils Ordinance 1979. This section is couched in the negative terms and gives all pervasive powers to the Election Tribunal constituted under section 25 of the Ordinance. Rule 5 of the Punjab Local Councils (Election Petitions) Rules, 1979 also provides that a declaration, in the nature that the election as a whole is void, can be claimed. Reading of this section alongwith the aforementioned rule makes it clear that an independent jurisdiction/forum with plenary power to decide the validity of an election has been created under this Ordinance. It has been held in case titled Emmanual Masih v. The Punjab Local Councils Election Authority and others 1985 SCMR 729 that "the power of the Election Authority under section 17(1), however comes to an end after the result of the election is announced, and from then onwards it is only the Election Tribunals set up under section 25 of the Local Government Ordinance, 1979 which, when moved by an appropriate person, can go into the question of the validity of the election of any particular person from any Electoral Unit and has the power to declare it void." It has further been held while discussing the amendment brought in section 17 of the Ordinance that "the net result of this amendment was that while the Election Authority was given extensive power to ensure impartiality, honesty and fairness while the elections were being conducted, it (i.e. Election Authority), became functus officio after the elections were over, and the validity of the elections could then be challenged by aggrieved persons only through election petitions, on grounds which during the pre‑election period could be made the basis of complaints to the Election Authority under section 17(1)". Reliance is also placed upon "Muhammad Tariq Chaudhry, Member Senate of Pakistan Islamabad v. Syed Masroor Ahsan and 3 others" PLD 1991 Lah. 200 and "District Registration Officer v. Javaid Hashmi and others" PLD 1989 SC

396. In view of what has been stated above, we are not inclined to interfere in this matter in the exercise of our Constitutional jurisdiction and dismiss this writ petition in limine. AA./M‑295/L Petition dismissed,