P L D 1960 (W (PLP)

B. Z. KAIKAUS, J.‑

Maley Khan petitioner, who is resident of village Mudkey Dhariwal and a voter entered on the electoral roll relating to the Union Council of that village, submitted his nomination paper for Ward No. 1, but by a mistake Ward No. 2 was entered in the nomination paper. The nomination paper was rejected by the Returning Officer, but the petitioner filed a revision petition to the Collector under rule 15 of the West Pakistan Basic Democracies Election Rules, 1959, and the Collector reversed the order of the Returning Officer and accepted the nomination paper of the petitioner. The petitioner was accordingly assigned an election mark which was a glass of water, by the Returning Officer and he was directed to present his ballot boxes for approval. He did present then and they were approved by the Returning Officer. On the 3rd of January 1960 however, when the petitioner took his ballot boxes to the polling station, he was informed by the Polling Officer that his name, was not included in the list of candidates supplied to him and that he would not allow the ballot boxes of the petitioner to be placed at the polling station. The petitioner told the Polling Officer that his nomination paper had been accepted and that he had been assigned a mark and stated that he was prepared to support his statement by an affidavit. He asked the Polling Officer to suspend the election for some time in order to verify his statement. The other three candidates, Muhammad Siddique, Muhammad Sadiq and Mehrab Khan, supported the statement of the petitioner. However, the Polling Officer started the polling without recognizing the petitioner as a candidate. The petitioner sent telegrams to the Collector and the Sub‑Divisional Magistrate and then tried to contact the Returning Officer. He went to various places and ultimately found him at Bhamba Kothi at 5 p.m. He presented to him an application stating the facts. The Returning Officer said that he would give his decision after making an inquiry. He sent his reader to the Polling Officer to find out if what the petitioner had stated was correct. The reader, after making enquiries told him that it was as the petitioner stated. However, the Returning Officer expressed his inability to help the petitioner. The petitioner then submitted applications to the Election Authority, the Commissioner, Lahore Division, and the Collector, stating all these facts. He was given an assurance at one stage that the election would be held again. However, ultimately no action was taken by these officers on the ground that the result of the election has already been declared. The petitioner then filed the present writ petition against the Election Authority and the candidates who had been declared elected asking for an appropriate writ.

2. The respondents do not contest the facts stated in the petition, and it is conceded that the name of the petitioner was illegally omitted from the list of candidates, but an objection has been taken that this petition does not lie and that the proper remedy in the present case was an election petition.

3. Two matters fall for consideration in this connection. The first is whether the present petition is barred because the validity of the election of the respondents could not be challenged except by means of a election petition in view of rule 55 of the West Pakistan Basic Democracies Election Rules, 1959. The second is whether (assuming that a writ can be issued) writ jurisdiction should not be exercised, because other remedy is open.

4. Rule 55 of the West Pakistan Basic Democracies Election Rules, 1959, runs:‑-- "Election Petition.‑(1) No election shall be called in question except by an election petition presented in accordance with these rules. (2) An election petition shall be presented within thirty days next after the declaration of result under rule 48. (3) Where a petitioner has been a contesting candidate, he shall join as respondents to his petition all the other contesting candidates, and a copy of the election petition shall be served upon each respondent. (4) An election petition shall‑ (a) contain a precise statement of the material facts on which the petitioner relies ; (b) set forth full particulars of any corrupt practices ; material irregularity; offence or other illegal act alleged by the petitioner, including as full a statement as possible of the names of the persons alleged to have committed such practices or acts and the date and place of the commission of every such corrupt practice, material irregularity, offence or other illegal act. (5) In the election petition, the petitioner may claim any of the following declarations‑ (a) that the election of the returned candidate is void, or (b) that the election of the returned candidate is void and that the petitioner or some other persons has been duly elected ; or (c) that the election as a whole is void. (6) Every election petition and every schedule or annexure thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings. (7) Every election petition shall be accompanied by a receipt showing that the petitioner has deposited a sum of one hundred rupees in a treasury in favour of the Election Tribunal as security for the costs of the petition. At any time during the trial of the election petition, the Election Tribunal may call upon the petitioner to increase such security and the additional amount thus required shall be deposited by the petitioner in the treasury. The security shall be refunded after the decision of the petition after deducting the costs if any under rule 61. (8) An election petition may be presented by any elector or candidate. (9) An election petition shall be presented to the Election ; Tribunal, and shall be deemed to have been presented‑ (a) when it is delivered in person to the Election Tribunal by the petitioner or by a person authorized in writing in this behalf by the petitioner, or (b) when delivered by registered post to the Election Tribunal. (10) The Election Tribunal may upon such terms as to costs and otherwise as it may direct, at any time, allow the particulars contained in the election petition to be remanded or order such further particulars in regard to any matter referred to therein to be furnished as may in its opinion be necessary for the purpose of ensuring fair and affectual trial of the petition, provided that particulars of any additional corrupt practices, material irregularities, offences or other illegal acts not contained in the election petition shall not be added by means of any such amendment." According to this rule the validity of an election cannot be challenged except by means of an election petition, but assuming that on the grounds of corrupt practices and material irregularities which are to be the basis of election petitions, the validity of an A election cannot be challenged before us, this writ petition cannot be dismissed on this ground. The petitioner need not, in this petition, refer to the result of the election at all. He can ask for a mandamus to the effect that an election may be held in which he is allowed to participate as a candidate. He had a legal right to have his name included in the list of candidates. His name had been omitted only by an oversight. If, on coming to know that his name had by an oversight not been included, he had approached this Court on the day on which election was to be held, and asked for a writ directing the officer in charge of the elections to include his name in the list of candidates and to allow him to contest the election, he would have been entitled to the writ. It cannot make any difference that in the meantime, in spite of the frantic efforts which the petitioner made, polling, which is in clear violation of law, has already taken place and the result of the election has been declared. Any jurisdiction which this Court had to issue an appropriate writ on that occasion cannot be taken away by the actual commission of the apprehended illegality, nor can the petitioner's right to relief be affected because of something which should never have been done and which in the eye of law is void.

5. This writ petition is accepted. All proceedings for election of Ward No. 1 from the time when the name of the petitioner was illegally omitted are declared void and a writ is issued to respondent No. 1 to hold an election of Ward No.

1. K.B.A. Petition accepted.