2003 PLP 1853 (CLC)

3. Respondent No.21 framed its bye-laws for election of Monitoring Committee for proper functioning of Tehsil Administration. As per provision of the bye-laws Chief Officer T.M.A., Faisalabad City was appointed as the Returning Officer whereas the single Presiding Officer was appointed for election of all the Monitoring Committees alongwith a sole Polling Officer for each committee. Air the members of the Tehsil Council were declared electoral college for election of Monitoring Committees. Per bye-law 10, the election was to be held under the supervision of Chief Officer/Returning Officer of Tehsil Council and appeal is provided under bye-law 15 against the order of Chief Officer before the Tehsil Municipal Officer, respondent No. 1.

4. Petitioner and respondent No.2 were the main contestants aforesaid office in the election held on 19-4-2003. According to the declared by the Returning Officer each candidate got 60 votes decided to hold draw of lot vide Annexure "K". Ghulam Bheek respondent No.2 opted for Chand Tara. The toss fell in favour Nadeem Sadiq Dogar but it was repeated for the second and third time which Ghulam Bheek Awan was declared successful by the Returning officer on 21-4-2003. Petitioner submitted a representation before respondent No.1 which was dismissed by him on 23-4-2003 and respondent No.2 was declared successful elected Chairman Monitoring Committee (Infra Structure and Services) of Tehsil Council, Faisalabad City. Petitioner, thereafter has approached this Court through the instant petition.

5. Dr. Ghulam Mohy-ud-Din Qazi learned counsel for the petitioner contends that respondent No.2 belongs to Chairman group headed by Mumtaz Ali Cheema, Tehsil Nazir, Faisalabad City. Petitioner secured 61 votes whereas respondent No.2 got 59, but in order to, get the favorite of Chairman group elected his two votes were illegally declared invalid and excluded from the count. He further submits that in the draw of lot held in his absence first toss fell in his favour but in order to ensure victory of respondent No.2 coin was tossed for the second and third time in violation of the relevant rules. Draw of the lot is carried out by single toss and that has fallen in favour of petitioner second and third toss are of no consequence and on this ground too he stands elected. The action of respondents Nos.1 and 22 in declaring him unsuccessful is unlawful and mala fide.

6. Hafiz Abdul Rehman Ansari learned counsel for respondent No.2 conversely submits that two votes of petitioner were invalid and rightly excluded from his count. He further submits that the election was conducted in fair and transparent manner as much as that four of the Chairman of ruling group of Tehsil Council, Faisalabad City were defeated which is a clear proof of being its fair election. He referred rules 37 and 39 of the Punjab Local Government Election Rules, 2000 in support of his contention for rejection of two votes of the petitioner. On the basis of aforesaid submissions he supports the impugned orders.

7. Mr. Farooq Hassan Naqvi learned counsel for respondent No. 1 has adopted the arguments of Hafiz Abdul Rehman Ansari learned counsel for respondent No.2.

8. Heard. Record perused. On 29-4-2003 Returning Officer/respondent No.22 was directed to appear alongwith the record in the Court on 12-5-2003. Meanwhile petitioner submitted Civil Miscellaneous No.2 of 2003 seeking permission to place on record some additional documents. The same was allowed. On 12-5-2003 Hafiz Abdul Rehman Ansari, Advocate appeared on behalf of respondent No.2 and stated that he has been engaged today wants time to prepare case and on joint request of the learned counsel for the parties the case was adjourned for today. The contesting, parties are present, record is available and it is simple matter, therefore, I propose to dispose it of as a notice case.

9. Sealed record has been opened in presence of parties and their counsel. I have examined both rejected ballot-papers of the, petitioner, one by the Returning Officer and the other by the Appellate Authority. These ballot-papers contain stamp in the column of petitioner. One ballot- paper is partially torn from left side near the name of Abdul Hafeez Bawa another candidate. According to respondent No.2 in fact a stamp was put and subsequently in order to remove the stamp it was torn and thereafter the stamp was put against the name of petitioner. Elector could have asked for issuance of fresh ballot-paper as it comes within the definition of spoiled ballot-paper. I have seen the ballot-paper which contains stamp in the column of petitioner. The other part which has been torn out is of no consequence as it bears no mark of any kind. The ballot -paper does not fall within the purview of spoiled in terms of rule

37. It was a valid vote of the petitioner and has erroneously been excluded from count. The second ballot-paper also contains the stamp in the circle of the petitioner. It has been torn in two pieces and joined with paper pin. The Presiding Officer has stated in his proceedings that he issued the ballot-paper in that condition. This vote also belongs to the petitioner and was erroneously declared invalid. While considering the number of valid votes of the contesting parties it is crystal clear that petitioner got 61 votes as against 59 of respondent No.2 and he having secured more votes than said respondent was illegally declared as defeated candidate.

10. Under rule 41 of the Punjab Local Government Election Rules, 2000 when it is found that there is equality of votes between two or more contesting candidates the Returning Officer shall forthwith draw a lot in respect of said candidate and the candidate on whom the lot falls shall be deemed lo have received highest number of votes entitling him to be declared elected. Respondent No. 1 has also framed bye-laws in conformity with the rules framed by the Punjab Local Government Election Rules, 2000 and under bye-law 7 it is provided that where the candidates obtained equal votes 'the decision will be by toss. The aforesaid bye-law read with rule 41 lays down that the decision in case of equality of votes will be by draw of lot. The proceedings before the Returning Officer on 21-4-2003 show that the first fall of lot was in favour of the petitioner. There is no provision for second and third draw of lot either in any rule or bye-laws. The Returning Officer by drawing second and third lot malafidely adopted a device for success of respondent No.2 who belongs to the group of Tehsil Nazim. The petitioner has placed press clippings of daily "Gharib" dated 19-4-2003 showing his grouping with Chairman group headed by Mumtaz Ali Cheema, Tehsil Nazim and of daily shelter Faisalabad dated 19-4-2003. It is evident that respondent No.2 belongs to Tehsil Nazim group. Respondent No.22/Returning Officer is the Chief Officer of Tehsil Municipal Administration, Faisalabad City and under the influence or Tehsil Nazim, group leader, of respondent No.2.

21. Petitioner urged before respondent No. 1 that he secured 61 votes but defeated in a clandestine manner in collusion with the rival candidate by declaring his one vote invalid and pushing him to toss position. Respondent No. 1 rejected his representation and accepted counter-appear of respondent No.2 and further rejected his another valid vote and reduced his total votes to 59 without any legal justification and promptly notified him as Chairman of the said committee. Press clippings of the newspaper, allegations of the petitioner and other material placed on the record show that respondent No.2 belongs to the ruling group. Returning Officer and the Appellate Authority have shown undue favour to him while rejecting petitioner's two valid votes on flimsy grounds. As stated above two votes of the petitioner were erroneously declared invalid. The electors have clearly expressed their intention by putting stamps in space provided for the petitioner. He having secured highest votes stands elected as Chairman, Monitoring Committee (Infra Structure and Services) and shall be notified as such by Competent Authority forthwith.

12. For the reasons stated above, this petition is allowed, impugned orders of respondent No. 1, dated 23-4-2003, of the Returning Officer, dated 21-4-2003 and the notification, dated. 21-4-2003 are hereby declared illegal, collusive and without lawful authority. No order as to costs.

13. A copy of this order shall be sent to respondent No.22 for issuance of notification of the petitioner as Chairman, Monitoring Committee (Infra Structure and Services). The Reader of this Court is directed to re-seal the ballot-papers and return it to respondent No.22. H.B.T./N-318/L Petition allowed.