1990 PLP 1551 (CLC)

ABDUL SHAKURUL SALAM, C J.‑‑‑Relevant facts for disposal of the petition are that election to the office of Chairman, Union Council Ballanwala Tehsil and District Sialkot was scheduled for 6th March, 1989. Time fixed was 11.00 a.m. By 10.45 a.m. all the 24 Councillors were present. Before the start of actual proceedings a scuttle broke out between the parties and some Councillors started beating each other. On receipt of a wireless message from the Presiding officer. Returning Officer and the D.S.P. reached the spot at about 11.30 a.m and controlled the situation. Some of the Councillors in the meanwhile had left the election hall. The Returning Officer directed the candidates to bring the councillors to the hall by 12.30 p.m. and announced that election would be held hat time Twenty councillors appeared. Ten voted for the petitioner. Other ten boycotted. The Presiding Officer declared the petitioner elected. He forwarded the return to the Deputy Commissioner who signed a draft Notification and sent it for publication to the Secretary, Punjab Local Councils Election Authority, Lahore alongwith a covering letter giving aforesaid facts vide memo, dated 9‑3‑1989 A day earlier the other candidate, respondent No.5 had sent a notice alongwith copy of Election Petition to the petitioner intimating that he was going to file an Election Petition before the Election Tribunal against the election of the petitioner as a Chairman. According to the learned counsel for the respondent No. 5 no Election Petition was, in fact, filed. Instead an application under section 17 (1) of the Punjab Local Government Ordinance, 1979 was filed before the Election Authority on 15‑3‑1989.

2. The Election Authority had passed the following order:‑ "

12. So far as the factual position is concerned not only pleadings of the parties and oral arguments but the record also shows that the proceedings of the poll could not be commenced at the stipulated time viz., 11.00 A.M. and stood adjourned for whatever reason it may be. The fact is that the poll was started at 12.30 P.M. There is no doubt that some of the members/voters entered into scuffle and also threw chairs on each other. The proceedings of the poll were seriously obstructed. The situation was so tense inside as well as outside the hall of the building where the poll was to be conducted that the intervention of police under section 107/151 of Cr.P.C. was necessitated. The copy of report of the Presiding Officer produced by the petitioner, the parawise comments of the Returning Officer and a copy of the police report No. 18 dated 6‑3 1989 registered at Police Station Hajipura District Sialkot abundantly prove the existence of an abnormal situation and the occurrence of quarrel between the contesting candidates and their supporters.

13. The proceedings of the poll were essentially interrupted to such an extent which created a situation envisaged by Rule 28 of the Punjab Local Councils (Election) Rules, 1979. The occurrence of violence coupled with the fact that all the 24 members could not reassemble in the later sessions had in fact rendered it obligatory for the Presiding Officer or the Returning Officer to adjourn the poll and seek necessary instructions from the Election Authority for further action in the matter. The Returning Officer was not competent to fix fresh schedule for taking the adjourned poll.

14. Even otherwise, the poll as held has no genuine bearing. Only 10 out of the 24 members of a local council cannot be allowed to determine the fate of the election of Chairman particularly when 4 members were not present at the time of adjourned poll who were admittedly present earlier and not shown to have been served for poll allegedly held at 12.30 P.M. and 10 did not participate in the poll and not marked present out of the 20 present. The subsequent meeting was, therefore, no meeting in the eyes of law. The result of election drawn by the Returning Officer or the Presiding Officer on the basis of such a meeting would also be a nullity. The irresistable conclusion that can be drawn in such a situation is that in the legal sense there was neither a determination of the result of election nor could there be any question of its announcement.

15. The result of election having not been drawn and announced in accordance with law, the provisions of subsection (2) of section 17 do not come into operation and the Election Authority is fully possessed of jurisdiction to make such an order as may in its opinion be necessary for ensuring that the election is conducted honestly, justly, and fairly and in accordance with the provisions of the Ordinance and the rules." The petition was accordingly accepted, the proceedings of the election in dispute were set aside and fresh election was directed to be held. This is vide order dated 18‑9‑1989. This is challenged by the petitioner through the aforetitled petition.

3. Learned counsel for the petitioner read out Section 17 of the Punjab Local Government Ordinance, 1979 which is to the following effect:‑‑ "(1) The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the Rules and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules. (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 the Election Tribunal by an election petition under the Ordinance.' He submitted with reference to subsection (2) that subsection section 17 ;hall not be construed "to mean that the Election Authority has power enquire, into any matter or pass any order in respect of anything relating t election which can be called in question before an Election Tribunal by an election petition under this Ordinance." The contention of the learned counsel for the petitioner is that the election held at 12.30 P.M. was perfectly valid and even it worst it was void, it could still be challenged under Rule 15 of Punjab I Councils (Election Petitions) Rules, 1979 which provides that: "The Tribunal shall declare the election as a whole to be void if satisfied that the result of the election has been materially affected reason of:‑ (a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules; or (b) the prevalence of extensive corrupt or illegal practices at the election. This being so, the Election Authority did not have the jurisdiction to inivoke or exercise power under section 17 (1) of the Ordinance.

4. The contention of the learned counsel for the contesting respondent No.5 is that sine the result of the election was not published in official Gazette required under Rule 61 of the Punjab Local Councils (Election) Rules, 1979 election petition could be filed under Rule 3 (1) of the Election Petition Rule 1979; therefore, the jurisdiction of the learned Election Authority under sect 17 (1) of the Ordinance was rightly invoked. Rule 61, sub‑rule (1) read: follows:‑ "(1) The Presiding Officer shall record the proceedings in writing and obtain thereon the signatures of such candidates as have witnessed proceedings anti may desire to sign the same and shall submit a return election to the Deputy Commissioner, who shall publish the names of elected chairman and vice‑chairman in the official Gazette‑‑" Rule 3 (1) of the Election Petition, Rules is to the following effect: "An election petition shall be presented within thirty days next after publication of the result in the official Gazette " Learned counsel referred to James Ryas Masih v. Punjab Local Councils Election Authority, Lahore and others (1981 S C M R 919) and read out the following observations at page 920: "Admittedly, no notification pertaining to the result of the election v issued in the instant case. Rule 3 of the Election Petition Rules lays do that an election petition shall be presented within 30 days next after the publication of the result in the official Gazette. Since no election petition could be preferred by respondent No.3 at that stage before the Election Tribunal, the provisions, of section 17 (2) of the (Ordinance were not attracted to the case. The only course left open, in the circumstances, for respondent No.3 was to prefer a petition under section 17 (1) of the Ordinance before the Election Authority." He also referred to The Punjab Local Councils Election Authority, Lahore v. Malik Muhammad Aslam and another (1982 S C M R 1086) and read out at page 1090:‑‑ "Subsection (2) of section 17 does not appear to be a provision which was intended to restrict the general and plenary power of superintendence conferred by section 17 (1) of the Ordinance and there appears to be force in the submission that the interpretation placed by the Division Bench of the High Court ousting the jurisdiction of the appellant Election Authority to take any remedial action until after the election has taken place i.e. when the result of the poll has been notified under Rule 41 (2) of the Punjab Local Councils (Election) Rules, 1979 would appear to defeat the mandate of the law given in section 17 (1) "that the Election Authority must see that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and Rules." It was further observed:‑‑ "It is true that in the terms in which section 17 (1) is couched all disputes and election irregularities could be dealt with thereunder. However, Section 24 of the Ordinance provided that `no election shall be called in question except by an election petition'. Therefore, in order to clarify the kind of matters which can be enquired into by the Election Authority under subsection (1) and those matters which are to be enquired into by the Election Tribunals, subsection (2) of section 17 was added. This is evident from the terms of subsection (2) which provides that `nothing contained in subsection (1) shall be construed to mean.' The use of the word `construed' is clearly intended to clarify further that this provision is in the nature of a declaratory or a clasificatory provision, whereby the law‑maker has interpreted subsection (1) of section 17, so as to ensure that the Election Authority remains on the right path. Irregularities, violation of the law and other election malpractices impairing the honesty and fairness of the elections could be corrected by the Election Authority under subsection (1) of section 17, but as the law also provided for calling in question an election by an election petition, those matters which could be questioned by an election petition were debarred from the jurisdiction of the Election Authority. However, an election petition can be presented after the publication of the result in the official Gazette but as the Election Authority is charged with the duty of seeing that an election is held honestly, justly and fairly in accordance with law, the irregularities which occur before the notification of election under Rule 41 (2) of the Election Rules, notifying the name of the returned candidate in the official Gazette can be taken up by the Election Authority. In other words it is only those post‑election disputes, which can be taken up by the Election Tribunal by an election petition that have been excluded from the jurisdiction of the Election Authority and no other." He also referred to Ali Ahmad v. The Election Authority Punjab Local Govt. and 2 others (P L D 1983 Lah. 488) and submitted that before issuing a Notification it is open to the Election Authority to see whether there was, in fact, an election, resignation or removal.

5. First the statutory provisions may be adverted. For facility of reference, section 17 of the Punjab Local Govt. Ordinance, 1979 may be referred which is crux of the controversy. It reads as follows: (1) The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the Rules, and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules. (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." Subsection (1) authorizes the Election Authority to "issue such instructions and exercise such powers and make such consequential order as it may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly in accordance with the provisions of the Ordinance and the Rules." The conferment of power is quasi‑legislative for prospective operation and for making order to ensure the conduct of the election to be fair etc. etc. It does not envisage adjudication of an election held‑‑‑whether legally or otherwise. Rather, subsection (2) expressly~ excludes this function when it lays down that "Nothing 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". The provision prohibits enquiry or passing of an order in respect of anything relating to an election which can be called in question $ before Election Tribunal. Undeniably, the impugned election could be challenged before the Election Tribunal by an election petition. This being so, jurisdiction under subsection (1) stood excluded.

6. Precedent cases relied upon by the learned counsel for the contesting respondent may now be referred to. In the case of James Ilyas Masih v. Punjab Local Councils Election Authority, Lahore and others (1981 S C M R 919) there were two candidates. Nomination of one was rejected by the Returning Officer. In spite of acceptance of his appeal by the Deputy Commissioner, the Returning Officer refused to honour the order and declared the other candidate elected. The person whose nomination was rejected approached the Election Authority who directed the Returning Officer to consider him validly nominated candidate but the Returning Officer still refused to comply with the order saying that he had already declared the result. The Election Authority on a petition under section 17 (1) of the Ordinance set aside the election and ordered fresh election. The declared candidate challenged the order of the Election Authority before the High Court. It was urged that since the result of the election had been declared it could only be challenged through an election petition. The High Court rejected the plea on the ground that the other person had not challenged the election of the petitioner in any sense of the term but he had challenged the illegal rejection of his own nomination paper. Consequently his Election Petition before the Election Tribunal would have been incompetent even under rule 13 (1) (a) of the Election Petition Rules "While refusing Special Leave to Appeal, the Supreme Court held that "since the order of the Returning Officer rejecting nomination paper of Rafiq Paul was manifestly erroneous under the law the Election Authority rightly directed fresh election " Two pertinent facts may be noticed, firstly, the nomination paper of the contesting candidate was illegally rejected and secondly election petition could not be filed. In the second case, The Punjab Local Councils Election Authority, Lahore v. Malik Muhammad Aslam and another (1982 S C M R 1086) the facts were that two persons filed their nomination papers for special interest seat of peasants. Before election on an information that neither was "peasant", the Election Authority stayed the election. An application under section 17 (1) of the Ordinance was also filed. After hearing all concerned, the Election Authority came to the conclusion that neither candidate was a peasant and set aside the order of the Returning Officer accepting the nomination papers. The order was upheld by the learned Supreme Court highlighting the powers of the Election Authority. It may, however, be noted that no election, whether legal or otherwise, had been held. Rather, it was stayed before being held. Further, it was observed in conclusion that it is only those post‑election disputes, which can be taken up by Election Tribunal by an election petition that have been excluded from the jurisdiction of the Election Authorities and no other." Putting it differently in respect of pre‑election disputes, the Election Authority will have jurisdiction under section 17 (1), but once election is held and the dispute is post‑election in respect of anything relating to an election which can be called in question before the Election Tribunal by an election Petition", the jurisdiction of the Election Authority is excluded by express provisions of the law, section 17 (2). In the third case Ali Ahmad v. Election Authority, Punjab Local Government and 2 others (P L D 1983 Lah. 488) the Chairman had tendered his resignation but before its acceptance it was withdrawn. Nonetheless it was accepted and communication sent to Election Authority for notification. The Chairman applied to the Election Authority saying that he had withdrawn his resignation. After enquiry, the Election Authority issued a memo to the Deputy Commissioner that since the Chairman had withdrawn the resignation before the meeting he continues to remain Chairman. This order was challenged in the High Court. The petition was dismissed holding that the Election Authority had the jurisdiction before issuing the Notification to decide as to whether there was, in fact, an election, resignation or removal. Further, it was held that even if there were any doubts about its jurisdiction to do so, we are of the view that this is not a fit case for exercise of discretion in Constitutional jurisdiction because it will involve holding of fresh inquiry into facts and more importantly fresh elections to the Local Council are likely to be held were announced in October or November, this year and it is not desirable to upset the working of the Council and creating uncertainty " The case, it may be noticed, clearly did not relate to election. The latest pronouncement of the learned Supreme Court of Pakistan in Emmanual Masih v. The Punjab Local Council Election Authority and others (1985 S C M R 729) may by referred to:‑ "The purpose of the entire exercise provided by the Election Laws beginning ‑,kith the preparation of the Election Rolls and ending with the announcement of Election results is to hold elections in order to enable the voters to choose their representatives for the purpose of carrying out the Local Bodies or to the Provincial or Central Legislatives, as the case may be. This (purpose) constitutes the very foundation of the democratic '' process, as envisaged at present. All the measures in the election laws and Rules framed thereunder are directed towards this purpose and every effort has been made (by the Legislature) to ensure that nothing should impede the holding of elections. The law provides that it is only after the elections are over, that they can be challenged in a forum specifically provided by the said law itself and that too only on the grounds enumerated in the relevant rules. All provisions of the Punjab Local Government Ordinance, 1979 and the rules framed thereunder must, therefore, be read in the light of this all‑pervading intention. It is indeed envisaged that the conduct of elections should be fair and honest and that is why the Election Authority has been given vast powers under section 17 (1) of the Ordinance for ensuring that dishonest, unjust or unfair means are not used during the conduct of the election. As held by this Court in the case of Malik Muhammad Aslam (1982 S C M R 108), the Election Authority" cannot be expected to stand by as an idlespectator" and can interfere in the process of elections whenever any dishonesty, illegality or malpractice etc. are brought to the notice during the conduct of the elections. The power of the Election Authority under section 17 (1), however, comes to an end after the result of the election is announced (emphasis is ours); herein italics 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. This division of powers to deal with pre and post election, complaints arose from the addition of three more subsections, i.e. subsections (2), (3) and (4) which were added to section 17 of the Punjab Local Government Ordinance, 1979, by Ordinance XII of 1979. These have already been reproduced in paragraph No.7 above. The reason for adding these subsections and the consequent division of powers is obvious. It would be recalled that the (first) elections to the Local Bodies' under Ordinance XII of 1979 took place on 25‑9‑1979, while these subsections were added to section 17 of the Ordinance (through the 3rd Amendment), on 29‑10‑1979, i.e., about a month after the elections were over. The successful candidates had been notified 20 days earlier, on 9‑10‑1979 and it appears, that within those 20 days after the results were announced, a number of aggrieved persons i.e. the defeated candidates or their parte men, had riled complaints before the Election Authority under section 17 (1) of the Ordinance, instead of resorting to the Election Tribunals through election Petitions. Apparently it was to rectify this situation that the above noted provisions i.e. subsections (2), (3) and (4) were added to section 17 of the Punjab Local Government Ordinance (XII of 1979). This view is reinforced by the provision of the newly‑added subsection (3) of section 17 which lays down that any complaint under subsection (1) of section 17 pending before the Election Authority on the date of the commencement of Ordinance XII of 1979 (i.e. on 29‑10‑1979) shall be deemed to have abated. 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 office 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 complaint to the Election Authority under section 17 (1)." Thus, it would be abundantly clear that once an election has been held the only method to challenge it is through an election petition before the Election Tribunal and no recourse can be had to section 17 (1) of the Ordinance. By this section the Election Authority is conferred the jurisdiction "to issue instructions and exercise powers for ensuring that tin election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance." This is more in the nature of prospective operation for conducting the election. Once the election is held, subsection (2) lays down that subsection (1) shall not 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." In other words, in respect of anything relating to an election, which has been held. I avocation of subsection (1) of sect ion 17 of the Ordinance is not permissible and any matter relating to an election can then be called in question only before an election Tribunal by an election petition. Not only the statutory provisions are dear but the judgments referred to above make it manifest that until the election is held he jurisdiction of the; Election Authority is pervasive but once the election held. then whether the election is illegal or void that can be challenged only through an election petition before the Election Tribunal and the jurisdiction of the Election Authority under section 17 (1) of the Ordinance is excluded by express provisions of subsection (2) of section 17.

7. A word may be said about the contention of the learned counsel for the respondent that since the result of the election had not been published by the Deputy Commissioner in the official Gazette as required under Rule 61 (1) of the Election Rules and an election petition can only be filed under Rule 3 (1) of the Election Petition Rules, 1979 within thirty days after the publication of the result in the official Gazette the contesting respondent No.5 could not, therefore, file an election petition, hence the jurisdiction of the Election Authority under section 17 t 1) of the Ordinance was available. Not only by circuitous argument no jurisdiction can be conferred on the Election Authority, which was expressly excluded in respect of anything relating to an Election' which can be challenged only through an election petition before Election Tribunal nor can any rule operate to annul or amend the statutory provision, but also publication of the result in, official Gazette is a ministerial act and Rule 61 of the Election Rules, 1979, relating to the election of a Chairman and Vice‑Chairman, expressly lays clown that the Presiding Officer "shall submit a return of the election to the Deputy Commissioner who shall publish the name of the elected Chairman in the official Gazette." The word "return" of election is a technical term and means that tic Presiding Officer shall tabulate who has got how many votes. In the case in hand, the Presiding Officer had submitted the return and declared the petitioner &, elected on the basis of the votes received by him (See Annx. B), particularly the, certificate at the end "Mr. Muhammad Tufail s/o Ch. Fazal Karim who has received the highest number of votes is hereby declared elected. "Further, if on III, submission of the return of the election the respondent No.5 could not file an action petition as contended and could only do so on the publication of the name of the elected Chairman in the official Gazette, he could wait to file the election petition. Hurry and non‑awaiting of an event for commencement of an action will not confer jurisdiction on the authority which it did not possess nor denude the Tribunal who would have exclusive jurisdiction on commencement of the action. The observations about non‑notification in the precedent cases is with reference to the fact that election had not, in fact, taken place. Nowhere it was in l~ issue that if election was held and was challengeable through an election petition before the Election Tribunal simply because of non‑notification of the result the Election can be challenged through an application under section 17 (1) of the Ordinance before the Election Authority. Reference may be made to Manzur‑ul- Haq v. Controlling Authority (P L D 1963 S.C. 652 at 657) where it was held: "It has to be pointed out at the same time that the mere existence of the provision for notification is a wholly insufficient basis for saying that the absence of a notification will stand in the way of the person whose office is to be notified. There are some provisions which simply cast a duty on the executive Government to notify the holder of an office and have no further effect. Unless there be something in the language of a statute which shows that the person concerned will not commence to hold an office till there is a notification should not be interpreted as a condition precedent to the holding of an office." What is excluded from the jurisdiction of the Election Authority is anything relating to are election which can be challenged by means of an election petition before an Election Tribunal; and not necessarily straightaway. The test, therefore, is whether the matter raised before the learned Election Authority was a matter relating to an election, which can be called in question before the Election Tribunal by means of an election petition. In other words, in view of the language of section 17 (2), the question that must be asked is whether the respondent No.5 could call in question the election before the Election Tribunal by means of an election petition? It is not denied that if the process had proceeded in due course and notification of the result on the basis of `return of the election had been issued and the Election Authority had not intervened under section 17 (1) of the Ordinance, the respondent No.5 could have challenged the election before the Election Tribunal through an election petition. This is indisputable as well. Therefore, invocation or exercise of power under section 17 (1) of the Ordinance cannot have the effect of nullifying or stultifying the statutory provision under section 17 (2) which had expressly excluded the operation of section 17 (1) and conferred exclusive jurisdiction on the Election Tribunal.

8. Although we have no intention of sitting on appeal over the order of the learned Election Authority and have no right to re-judge the facts, but in order to determine the scope of the jurisdiction of the Election Authority under section 17 (1) and of the Election Tribunal under section 17 (2) of the Ordinance, we may refer to certain facts and the observation of the learned Chairman of the Election Authority in the impugned order. The election time fixed was 11.00 a.m. At 10.45 a.m. all the 24 Councillors gathered and started quarrelling. The Presiding Officer could not control the situation, sent a message to the Returning Officer. The latter reached‑ at 11.30 a.m. and controlled the situation. He asked the candidates to bring the Councillors by 12.30 p.m. for holding of election. Twenty attended. Ten voted in favour of the petitioner. Ten boycotted. Four were absent. Petitioner was declared elected. "On facts", the learned Election Authority held in para. 12 that.‑‑ "The copy of report of the Presiding Officer produced by the petitioner, the parawise comments of the Returning Officer and a copy of the police report No.18 dated 6‑3‑1989 registered at Police Station 1‑iajipura, District Sialkot abundantly prove the existence of an abnormal situation and the occurrence of quarrel between the contesting candidates and their supporters." It may, however, be noted that the quarrel was at 10.45 a.m. before commencement of poll at 11.00 a.m. When it was held at 12.30 p.m., it is nobody's case that there leas a quarrel. In para. 13 it was observed that: "The proceedings of the poll were essentially interrupted to such an extent which created a situation envisaged by Rule 28 of the Punjab Local Councils (Election) Rules, 1979. The occurrence of violence coupled with the fact that all the 24 members could not reassemble in the later session had in fact rendered it obligatory for the Presiding Officer or the Returning Officer to adjourn the poll and seek necessary instructions from the Election Authority for further action in the matter. The Returning Officer was not competent to fix fresh schedule for taking the adjourned poll."

9. Besides that Rule 28 relating to election of members did not apply to the election of the Chairman for which there were specific rules from 58 to 61 under Chapter VII of the Rules and only "The provisions of Chapter VI in regard to poll as far as may be, shall mutatis mutandis apply to the election of Chairman or Vice‑Chairman of a Local Council "vide Rule 60 (3) and Chapter VI related to Election to the seats of Special Interest viz. Peasants, Workers and Women, the polling was not held at the fixed time of 11.00 a.m. because of disturbance but was held peacefully at 12.30 p.m. when Returning Officer had already arrived and established order. The polling at 12.30 p.m. was not fixing of fresh schedule for the adjourned poll. The schedule given by the Election Authority was the date viz. 6‑3‑1989. Timing was fixed in the first instance too by the Returning Officer. Nor there was am adjourned poll. Poll started at 12.30 p.m. It was observed in para. 14 that; Even otherwise, the poll as held has no genuine bearing. Only 10 out of the, 24 members of a local council cannot be allowed to determine the fate of the election of the Chairman particularly when 4 members were not present at the time of adjourned poll who were admittedly present curlier uric not shown to have been served for the poll allegedly held at 12.30 p.m and 10 did not participate in the poll and not marked present out of the 20 present. The subsequent meeting was, therefore, no meeting in the eyes of law. The result of election drawn by the Returning Officer or the Presiding Officer on the basis of such a meeting would also 1‑‑c a nullity. The irresistible conclusion that can be drawn in such a situation is that in the legal sense there was neither a determination of the result of election nor could there be any question of its announcement." It may, however, be noticed that if some people boycott an election and others remain absent, the result of the election cannot be nullified. No premium is to be put on the default or non‑participation of some in a democratic process nor who follow the law can be deprived of their rights having followed the due process. Further, if there was no meeting in the eyes of law and in legal sense O there was neither a determination of the result of election nor could there be any question of its announcement', then the legal effect of the election has to be tested in an election petition under section 17 (2) by the Election Tribunal which has been conferred exclusive jurisdiction expressly saying that jurisdiction under section 17 (1) will not be construed to mean that the Election Authority has power to enquire into any matter or pass any order in relation to anything relating to an election which can be called in question before an Election Tribunal by an election petition.

10. With respect to the learned Chairman of the Election Authority for whose learning and expertise we have great regards, the election having been held at 12.30 p.m. without any disturbance and result declared, the aggrieved party should have been left to have recourse to regular procedure of riling an election petition. We may not, however, be understood to say that in no event the Election Authority can intervene under section 17(1) of the Ordinance in the matter of election even if result is declared e.g. if no election is in fact held, force is used, result declared falsely and fraudulently, the Election Authority may pas‑, an order annulling the proceedings under section 17(1) of the Ordinance. But if the election has been held peacefully at the time and result declared, then even if the election, is liable to be declared as a whole void, recourse has to be had to the Election Tribunal by an election petition under Rule 15 of the Election Petition H Rules, 1979. In fact, the respondent No.5 gave a notice alongwith the election petition intended to be filed before the Election Trih,mal in which he said that he had deposited Rs.500 in the Government treasury (See Annexs. F & G). The notice, copy of the petition and deposit of the amount was required by the relevant Rules. But the learned counsel for the respondent No.5 says that the election petition was not filed before the Election Tribunal but an application under section 17(1) of the Ordinance was filed before the Election Authority. It may be noticed that the aforesaid facts about election petition were not disclosed in the application before the Election Authority. Suppression of material facts does not augur well about the conduct of the respondent No.5.

11. For the reasons given earlier, we have come to the conclusion that once an election is held and return of election is submitted by the Presiding Officer to the Deputy Commissioner for publication, then the election can only be challenged through an election petition before the Election Tribunal and I provisions of subsection (1) of section 17 of the Ordinance are not attracted. If it were otherwise, it would be possible that after the elections have been held an return of election submitted, instead of waiting for the publication which the learned counsel for the respondent No.5 contends is a must, the parties may run to the Election Authority and the latter is inundated with petitions under section 17(1). Subsections (2), (3) and (4) were‑added to section 17(1) by an amending Ordinance VI of 1979 to avoid such a situation as was observed in the aforequoted judgment of the learned Supreme Court of Pakistan (1985 S C M R 729).

12. For the reasons given above we have come to the conclusion that since the election was held whether it was illegal or void, it was challengable through an elect‑,n petition before the Election Tribunal and neither the respondent No.5 nor the Deputy Commissioner had any right to invoke the jurisdiction of the Darned Election Authority under section 17(1) of the Ordinance. Therefore, the impugned order is not in accordance with law and, therefore, is without lawful authority and of no legal effect. It is so declared. The petition is thus allowed but, in the circumstances, the parties shall bear their own costs. H.B.T./M‑2061/L Petition allowed.