2004 PLP 1331 (MLD)

The brief facts out of which the present writ petition arises are that petitioners and respondents Nos. 1 to 6 contested the election jointly on penal basis for the office of~ Nazim and Naib Nazim for the Union Council No.117 District Gujrat. The election was held on 21 3‑2001 under the provisions of the Punjab Local Government Election Ordinance, and rules framed thereunder. The petitioners were declared as returned candidates. Respondents' Nos. 1 and 2 filed election petition before the Election Tribunal, respondent No.8. Petitioners filed written statement, controverted the allegations levelled in the election petition by raising preliminary objection that election petition was not filed by the respondents in terms of Rule 72(3) of Election Rules. The petitioner also filed an application for rejection of the election petition as the election petition was not verified by the respondents in terms of Rule 72(3) of the Election Laws. Respondents filed reply of the same and the Election Tribunal dismissed the same vide order dated 8‑4‑2003. The petitioners being aggrieved filed this Constitutional petition.

2. Learned counsel of the petitioners submits that section 55(3) of the Representation of the Peoples Act, 1976 is para meteria of Rule 72(3) of the Election Rules, 2000 and rules framed thereunder. The Honourable Supreme Court has laid down a principle that election petition which was not verified in terms of section 55(3) of the Representation of the Peoples Act, 1976 is liable to be rejected and the impugned order of the Election Tribunal is not in accordance with the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:‑‑ Engineer Iqbal Zafar Jhagra v. Khalil‑ur‑Rehman and 4 others (PLD 2001 SC 88). Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan (1997 CLC 1724). He summed up his arguments on the basis of the aforesaid case‑law that respondents have to verify the contents of the election petition in terms of Order 6, rule 15 of C.P.C. and in case the election petition has been filed by the respondents in derogation of rule 72(3) then election petition is liable to be dismissed but the learned Election Tribunal erred in law to dismiss the application of the petitioner without application of mind in violation of the dictum laid down by the superior Courts. The judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution whereas judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution.

3. Learned counsel of the respondents submits that petitioner has filed the application at belated stage. Evidence of both the parties has beers recorded and the case is pending for arguments of the learned counsel of the parties, therefore, propriety demands that the Election Tribunal be allowed to decide the case on the basis of the evidence, which was recorded by the Election Tribunal in terms of the election petition and written statement of the petitioners.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is better and appropriate to reproduce relevant provisions of Punjab Local Government Election Rules and relevant provisions of the Representation of People Act, 1976 to resolve the controversy between the parties:‑‑ "Rules 72(3), 77 of the Punjab Local Government Elections Rules 2000. Rule 72 Contents of petition (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. Rule 77 Dismissal of petition during trial.‑‑‑The Tribunal may dismiss an election petition if:‑‑ (a) the provisions of rules 70, 71 and 72 have not been complied with; or (b) The allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity, or other illegal act. Sec 55(3) & 63 of Representation of People Act, 1976. Sec. 55(3).‑‑Every election petition and every schedule or annex to that petition 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. Sec.

63. Dismissal of petition during trial. The Tribunal shall dismiss an election petition. if‑‑ (a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section

62. In case the provisions of both the laws are put in a juxta position then the Legislation in its wisdom in section 63 of the Representation of the People Act, 1976 has used the word "Shall" whereas the Legislation in its wisdom has used the word "May" in Rule 77 above, therefore, judgments cited by the learned counsel of the petitioners are distinguished on facts and law as the mandate of section 63 is mandatory in character whereas rule 77 envisages as directory in nature as the law laid down in Niaz Muhammad Khan's case (PLD 1974 SC 134). The question of law raised in this petition has already been decided after considering all the case‑law on the subject by my learned brother Ihsan -ul‑Haq Chaudhry. J. (As he then was) in Constitutional Petition No. 19406 of 1998 vide judgment dated 9‑10‑1998 under the provisions of the Punjab Local Government Ordinance, 1979 and the rules framed thereunder, which are para meteria with the rules framed by the Competent Authority qua the election held by the local bodies under the provisions of the Punjab Local Government Elections Ordinance 2000 and the rules framed thereunder. The relevant observation is as follows:‑‑ "The other argument was that neither election petition nor the annexures appended therewith were verified. The perusal of the same shows that these were verified but not strictly in accordance with the provisions of C.P.C. The relevant portion of the Punjab Local Councils (Election Petitions) Rules, 1979 as under:‑‑ "5(3) Every election petition and every schedule or annexure to the petition shall be signed by the petitioner and verified in the manner as laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings." This rule is to be read with rule 9 which armed with the Tribunal with power to dismiss an election petition for non compliance of the provisions of Rules 3, 4 and

5. The word used is "may", therefore, before disposing the election petition the Court has to see the non‑compliance. The judgments relied by the learned counsel for the petition are not relevant because those were cases under the Representation of the People Act where the word used in section 63 is 'shall'. The Tribunal after hearing the arguments exercised the discretion in favour of respondent No.2, therefore, no interference is called for in the Constitutional jurisdiction. " It is better and appropriate to reproduce the verification on the election petition which is at page No. 11: The election petition is verified, therefore, objection of the petitioners has no force. In arriving to this conclusion, I am fortified by reported judgment in Haji Mian Aziz‑ur‑Rehman Chan v. Mian Abbas Sharif and another (1994 MLD 2293) and laid down the following principle after considering all the case‑law on the subject even election held under Representation of People Act, 1976:‑‑ "This verification is in composite form which demonstrates that the contents of the petition are true and correct not only to the best of petitioner's knowledge and information but also belief. In the presence of verification of this nature it would be too hypertechnical to hold that the verification is not in accordance with the dictates of the provisions of law." It is also held in the cited judgment that disputes should be decided on merits instead of technicalities. I am fortified by the law laid down in H. Aman Ullah Khan v. Sahibzada Tariqullah (1997 MLD 612) wherein it is held that non‑verification in accordance with procedure laid down in Order 6, rule 15, C.P.C. is not fatal. The aforesaid proposition of law is also supported by the law laid down in Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175). The Honourable Supreme Court has also laid down a principle defective verification of an election petition is not fatal in Abdul Nasir and another v. Election Tribunal, T.T. Singh and others 2004 SCMR

602. It is pertinent to mention here that Legislation in its wisdom as mentioned above, has used the word "may" in Rule 77 supra which envisages that it is the discretion of the Election Tribunal to dismiss the election petition for non‑verification or not. The learned Election Tribunal has not exercised discretion in favour of the petitioners with cogent reasons. It is also settled principle of that Constitutional jurisdiction is discretionary in character. I am not inclined to exercise my discretion in favour of the petitioners in view of the aforesaid discussion as the law laid down by the Honourable Supreme Court in the following judgments: 'Nawab Syed Raunaq Ali's case (PLD 1973 SC 236). Rana Muhammad Arshad's case (1998 SCMR 1462) The aforesaid cases relied by the learned counsel of the petitioners arose out of the election to the National and Provincial Assemblies, therefore, judgments cited by the learned counsel of the petitioners are distinguished on facts and law as is highlighted in judgment dated 8‑1-2004 passed in Election Petition No. 111 of 2002 by my learned brother Syed Jamshed Ali, J. In view of what has been discussed above, this petition has no merits and the same is dismissed. H.B.T./Z‑9/L Petition dismissed.