1992 PLP 1563 (MLD)

This is a writ application under Article 19') of the Constitution of Isl4mic Republic of Pakistan for a mandate to respondent No.2 for reporting the name of the petitioner to Federal Government and a direction to the latter for notifying it in the official Gazette as required in subsection (5) of section 1.3‑A of the Cantonments Act, 1924 (Act II of 1924) read with Rule 50 (4) of the Cantonments (Elections and Election Petition) Rules, 1979. Facts relevant to the petition are briefly these:‑‑ Petitioner alongwith Raja Irfan Imtiaz and some others contested election for membership of Cantonment Board of Rawalpindi from Ward‑

4. Elections were held on 28‑12‑1991. Petitioner acquired 2,562 valid votes against his closest rival, Raja Irfan Imtiaz who polled 2,406 valid votes. Other contesting candidates fell far behind and need not be commented upon. Petitioner was declared elected by the Returning Officer. Aggrieved of the result Raja Irfan Imtiaz called in question the result of election by filing an election petition to the Election Tribunal presided over by District Judge of Rawalpindi on 6‑1‑1992. Alongwith the election petition, the election‑petitioner filed an application for a restraint order against the petitioner. By an ex parte order, passed on 7‑1‑1992, Election Tribunal directed that till further orders, the petitioner‑Ghulam Habib Rana will not take oath of his office and will not perform any function as a duly elected Councillor. As yet, restraint imposed was in force. Hearing of the application for temporary injunction was adjourned on several dates, but it has not been finally decided. It is presently posted for 19‑4‑1992, before the Election Tribunal. Since, in view of the petitioner, decision on the application for temporary injunction was being delayed, he applied to this Court in Writ Petition No.279/1992 for a direction to the Election Tribunal for deciding of it quickly. On 7‑4‑1992, the writ petition was disposed of by directing the Tribunal to finally decide the application for temporary injunction by or before 30‑4‑1992. Results of elections to the Board were declared on 3‑1‑1992. Except for the petitioner, names of all the other returned candidates were forwarded to the Federal Government for their publication in the official Gazette. Consequently, they were notified in the Gazette on 12‑3‑1992. Petitioner was singled out. His name was neither forwarded to the Federal Government nor was it notified in the official Gazette. Aggrieved of the omission, and, consequent discrimination by the concerned official of the Board and the Federal Government, petitioner knocked at the doors of this Court for exercising its extraordinary jurisdiction for compelling the concerned quarters to perform their public duties imposed upon them by law. The provisions in the Act and the Rules on the point were visibly clear. As the decision of the writ petition turned on them, it shall be profitable to quote relevant part of the section and the rules. Section 13‑A(5) of the Act says:‑ "The name of every elected or nominated member of the Board shall forthwith be reported to the Federal Government which shall notify in the official Gazette the name of the person so nominated or elected." Rule 50 of the Cantonments (Elections and Election Petitions) Rules, 1979 provides: "(1) Declaration of results.‑‑‑The Returning Officer shall on obtaining the result of the count or of the drawl of the lot, direct by posting at the Board's office the candidates who have or who are deemed to have, received the highest number of votes m respective wards to be elected. (2) The Returning Officer shall, immediately after posting the notice under sub‑rule (1) submit to the President a return of the election in Form `J'. (3) The public notice shall contain the names and the total number of votes received, by each contesting candidate. (4) The President shall forward the result to the Federal Government, and the Federal Government shall publish it in the official Gazette:' There is neither any obscurity in the relevant subsection of the Act nor in the rule quoted above. Upon declaration of results, President of the Cantonment Board is enjoined and made duty‑bound by law to perform his functions in the manner indicated in the Act and the Rules. Likewise, was the role and duty o the Federal Government specified in the Act and the Rules. Escape from and omission to perform a public duty imposed upon the public functionaries in interest of the public could not earn approval in any quarter, much less in the Court which is required by the Constitution to direct performance of public functions by the public functionaries in accordance with the dictates of law. Learned Standing Counsel were called upon to explain the reason for the omission in this behalf. Fairly, they had none to offer and rightly so because the Act and the Rules did not provide any excuse for the omission. It is agreed that the Election Tribunal did not prohibit any from reporting the election results of the petitioner to the Federal Government and the latter from notifying it in the official Gazette. On record, there was no explanation forthcoming for discriminating against the petitioner, more particularly, in the absence of any legal bar provided from any quarter. Upon this view of record, it was really astonishing as to why the name of the petitioner was not being notified in the official Gazette by the Federal Government, or the President of the Board for not reporting the election result of the petitioner to the Federal Government. Right of the petitioner and corresponding duty of respondents Nos. 1 and 2 being transparent, there is no impediment for compelling the performance of public duty by the latter. In view of aforesaid, writ petition is allowed. Respondent No.2 shall report the name of the petitioner Ghulam Habib Rana, within three days and respondent No.1 shall notify his name in the official Gazette within further 15 days. As respondents Nos. 1 and 2 had no defence to make and writ petition was allowed, I was inclined to burden them with costs of the petitioner. However, since respondent No.1 was advised by an Officer of the Ministry of Justice and Parliamentary Affairs (Justice Division), Islamabad, either to get the stay order vacated or seek clarification from the Court by way of abundant caution, an action presumably suggested, out of respect for the Court issuing the stay order, parties are allowed to bear their own burden of the costs in this Court. A.A./G‑38/L Petition accepted.