1982 PLP 678 (CLC)

‑‑S. 17 (3) [as amended by Punjab Ordinance (XII of 1979)] read with Punjab Local Councils (Election Petitions) Rules, 1979, r. 3 [as amended by Notification No. EAP/1‑1/79 dated 20‑11‑1979]‑Election petition‑Limitation‑Election petition before Election Authority remaining pending till abated for thirty‑one days‑Election petition to be filed within thirty days after publication of result in official Gazette Respondent in circumstances entitled to period of sixty‑one days Election petition filed ninty‑four days after result of election notified, held, time barred.‑[Limitation]. Ch. M. A. Saleem for Petitioner. Nemo for Respondents. Date of hearing :16th June, 1981. MUHAMMAD RAFIQ TARAR, J.‑The petitioner and respondent No. 2 contested the election from Electoral Unit Naarsingh No. 212, Union Council Pindi Bhago, on 25th September, 1979. The petitioner secured 273 votes as against 261 polled to respondent No. 2 and was declared elected. The result of the election was notified on 11th October, 197). Respondent No. 2 filed an election petition before the Election Authority on 29th September, 1979 which abated on 29th October, 1979 under subsection (3) of section 17 of Ordinance VI of 1979. This subsection was added to section 17 by Ordinance X11 of 1979 which came into force on 29th October, 1979. How ever, the formal order of abatement on the said petition was passed by the Election Authority on 3‑2‑1980. Thereafter respondent No. 2 filed an election petition before the Election Tribunal on 13‑2‑1980 raising various grounds. The petitioner raised a preliminary objection that the petition was time‑barred. The Election Tribunal overruled the objection and after giving his findings on other issues, dismissed the election petition on 3‑8‑1980. The petitioner challenges the aforesaid order through this constitutional petition.

2. The learned counsel for the petitioner contended that the election petition before the Election Tribunal was grossly time barred, therefore, the impugned order removing the petitioner from membership and declaring respondent No. 2 as duly elected is without lawful authority. No body has appeared on behalf of the respondents and they have been proceeded against ex parte.

3. Section 17 of the Punjab Local Government Ordinance, 1979 was amended by section 3 of the Ordinance (XII of 1979) which came into force on 29‑10‑1979. It provides that any petition or complaint pending with the Election Authority on the date of the commencement of the said Ordinance shall be deemed to have abated. The petition before the Election Authority, _ therefore, abated on 29th October, 1979 when the said Ordinance came into force. The finding of the Election Tribunal that the petition abated on 3‑2‑1980 when the formal order to that effect was passed by the Election Authority, is wholly illegal.

4. It is clear from the impugned order that the election petition was filed before the Election Tribunal on 13‑2‑1980. Rule 3 of Punjab Local Councils (Election Petitions) Rules, 1979, provides that an election petition shall be pre sented within thirty days next after the publication of the result in the official Gazette. This rule was amended by Notification No. EAP/1‑1/79 dated 20th November, 1979, to provide that where a petition orcomplaint lodged with the Election Authority has abated under subsection (3) of section 17 of the Ordinance, the period for which such petition or complaint remained pending with the Election Authority shall be excluded from the period of limitation for filing an election petition. The election petition before the Election Authority remained pending from 30th September, 1979 to 29th October, 1979 i.e., for thirty‑one days. Thus, the total period which could be excluded from the period of limitation for filing the election petition before the Election Tribunal was sixty‑one days. Respondent No. 2 filed the election petitions ninety‑four days after the result of the election was notified. It was, therefore, barred by time and respondent No. 1 was bound to dismiss it.

5. For the foregoing reasons we allow this petition and declare the impugned order to be without lawful authority and of no legal effect. The net result is that the petitioner shall continue as a member of the Union Council concerned. There will be no order as to costs. M.Y.H. Petition dismissed.