P L D 1965 (W (PLP)

FAIZULLAH, KHAN, J.‑The short question raised in this writ petition may be formulated thus:‑ "Whether a candidate whose nomination papers are rejected and in consequence his opponent declared duly elected as unopposed, has a right to make an application for election petition under section 58 of the Electoral College Act, 1964."

2. The material facts, so far as they are pertinent for the decision of this writ petition, are that Jafar Khan petitioner was declared duly elected as unopposed from Unit No. 405, Garyallah, Tehsil and District Mardan in consequence of the rejection of the nomination paper of the only other contender, namely, Aziz Shah, respondent No.

3. Respondent No. 3 filed Election Petition, and the Additional Commissioner, Peshawar, acting as Election Tribunal, by his order dated 15‑3‑65, accepting the Election Petition, declared the election of the petitioner unopposed, as void and directed that fresh election be held.

3. Mr. Zahuiul Haq, learned counsel for the petitioner, contended that under sub‑rule (1) of Rule 35 of the Electoral College Rules, 1964, (hereinafter to be referred to as the Rules), the election petition, "shall be presented within thirty days next after the publication of the result under subsection (2) of section 46 by the Returning Officer in the official Gazette," and since the case of the candidate who was declared duly elected unopposed was not covered by subsection (2) of section 46 of the Electoral College Act, 1964, (hereinafter to be referred to as the Act), but by section 29 of the Act, it followed that no right to file election petition accrued in such a contingency.

4. The argument, in our view, is clearly misconceived for the narrow and sensible ground that the right to file election petition has been specifically provided for in favour of "any will be convenient here to examine some of the of the Act and the Rules. The material provisions are sections 29, 46 and 58 of the Act and rule 35 of the Rules. Section 29 pertains to uncontested election, and reads thus: "29 (1) If, after scrutiny under section 23, the Returning Officer finds that only one person has been validly nominated for election, or if, after withdrawal under section 25 or retirement under section 26, or the death of a candidate, only " one person is left as a contesting candidate, the Returning Officer shall, by public notice, declare such candidate to be elected to the Electoral College. (2) The Returing Officer shall publish in the official Gazette the name of the returned candidate." Section 46 is in the following terms: "46 (1) The Presiding Officer shall, after obtaining the result of the count or of the drawal of the lot under section 45, declare the contesting candidate who has, or is deemed to have received the highest number of votes to be elected to the Electoral College and shall submit a return of the election to the Returning Officer. (2) The Returning Officer shall publish in the official Gazette the name of the returned candidate." The material provision of section 58 is subsection (2), which reads as follows: 58 (1)* * * * * * * * * * * "(2) Any candidate may make an election petition challenging the election at which he was a candidate." (3) * * * * * * * * * * * The material provision in rule 35 of the Rule is sub‑rule (1), which is in the following language:‑ "35 (1) An election petition shall be presented within thirty days next after the publication of the result under subsection (2) of section 46 by the Returning Officer in the official Gazette. (2) * * * * * * * * * * *

6. It will be clearly manifest from the language of section 58 that "any candidate" has a right to "make an election petition challenging the election at which he was a candidate." The wore "candidate" has been defined in section 2 (2) as follows: " . . . . . means a person who has been nominated for election as a member of the Elecroral College from an electoral unit ;".

7. The learned counsel faintly argued that a person, whose nomination papers had been rejected, could not be considered as a "candidate" within the meaning of section 2 (2). The argument is wholly fallacious and cannot be sustained on the language of the term `candidate', referred to above, in which the word `nominated' has been used. There is, therefore, no doubt about the true meaning of the term "candidate", and if there be any, the same stands resolved by the definition of the term 'contesting candidate' as defined in section 2 (4), which is in the following language: "(4) `contesting candidate', in relation to an election unit, means a candidate who has been validly nominated for election from that unit and has not, on or before the withdrawal day, withdrawn his candidature.". It will be noticed that in the definition of the term contesting candidate the words used are "validly nominated for election" as against the words "been nominated for election" while defining the term `candidate'.

8. It follows from the above discussion that each and every candidate has a right to make election petition and this right cannot be scrapped or abrogated by the Rules, in that it is well recognised law that a right granted by an Act cannot be taken away or abridged by Rules. Rule 35 is not happily worded and the Draftsman unwittingly failed to draw a distinction between the publication of the result under subsection (2) of section 46 by the Returning Officer in the case of contested election and the publication of the result of uncontested election under section 29 of the Act, and, rule 35 prescribed a period of limitation of thirty days in the case of contested election alone, and inadvertently omitted to prescribe any period of limitation in case of uncontested election.. The omission whether on design or otherwise cannot take away the right granted to each and every candidate under section 58 to challenge the election by making election petition.

9. There is another aspect of the case and it is that if a statute gives any right and the Act or the Rules do not prescribe any period for the exercise of such a right, then the person can c exercise that right irrespective of any period of limitation, provided the cause of action to pursue the remedy still survives. Almost identical question came up for consideration to Muhammad Aslam v. Abdur Rashid (P L D 1960 Lah. 707). I would extract the following observation at page 708 of Sbabir Ahmad, J., with whom Kaikaus, J., as his Lordship then was, agreed :‑ "Now it is well‑settled that relief prescribed by law with regard to any matter can be sought at any time unless the law prescribes a period of limitation within which it has to be sought. The only provision of the Rules which fixes the period of limitation for presenting an election petition is sub‑rule (2) of rule 55, wherein it is said that in order to be entertainable an election petition shall be presented within thirty days next after the declaration of the result under rule

48. Assuming that in the case of a person who is elected unopposed, no declaration of the result is necessary still sub‑rule (2) of rule 55 could not be invoked for the contention that the election petition under consideration was barred by time because if the case does not fall within sub‑rule (2) and no other provision fixes the period of limitation it had to be held that no period of limitation was fixed for challenging the election of a candidate who was elected unopposed."

10. There is yet another aspect of the case and it is that' where a statute specially provides a right to make an application, appeal or revision within the period to be prescribed by the Rules and when no Rules are framed, or the Rules framed do not prescribe any period, then in such a situation the application, appeal of revision may be made within a reasonable tinge. In the case in hand the omission to frame Rules in regard to the period of limitation when the Act itself does not prescribe any period of limitation for making election petition in the case of unopposed election, would not make the application for election petition moved within thirty days of the promulgation' of the result to 'be bad, muchless that the right specifically provided for availing the remedy of election petition be considered as abrogated.

11. For all the foregoing reasons, we dismiss in limine the writ petition as unmeritorious. K. B. A. Petition dismissed in limine.