1. S. A. RAHMAN, J.-In this case the petitioner asked for a writ in the nature of quo warranto against the holding by the respondent, Malik Muhammad Ali, of the office of Chairman . Of the Union Council, Hamoka. He had also asked for a declaration that the Notification dated the 21st November 1965, by which he was not mea as a Member of Electoral College, was one without authority and of no legal effect.
2. The election in this case took place on the 8th Nov her 1964, but polling was apparently stopped by the Returning Officer on the ground of a disturbance taking place. The Provincial Election Authority approved of his suggestion that further polling may take place on the 18th November 1964. The High Court apparently seems to be under the impression that this was a fresh election, but this does not appear to be correct. It was merely a continuation of the old election. Malik Allah Dad, one of the candidates, filed a writ petition in the High Court, challenging the postponement of the polling, on the allegation that he had finished on the earlier date and no fresh poll could be allowed. The High Court passed an ad interim order, directing the opening of the ballot boxes and the counting of the votes already cist. Pending further order, however, the result of the polling was nut to be declared. It was also directed that the result of the election on the basis of the fresh polling should also not be announced As a result of the count, Malik Muhammad Ali having obtained majority of votes, was eventually declared successful as a Member of the Electoral College on the 1st November 1965. Only the votes cast on the earlier date were apparently made the basis of this declaration. The writ petition of Allah Dad Khan was eventually dismissed by the High Court on the ground that had no jurisdiction to interfere in the matter. On the 18th January 1966 the respondent was elected as Chairman of the Union Council, Hamoka.
3. The petitioner approached the Election Authority with a prayer that the Notification declaring the respondent to have been duly elected be withdrawn. The Controlling Authority rejected the contention on the ground that the election could only have been set aside on a regular Election Petition under section 58 of the Electoral College Act, and that he was not competent to consider the question raised.
4. The High Court also took the view in this case that as the election of the respondent had not been challenged by an Election Petition, the writ asked for could not be granted.
5. It is contended by Mr. Munir Aussain Shah on behalf of the petitioner that the matter has not been considered in the proper light by the High Court. He contends that the Provincial Election Authority having approved the suggestion of the Returning Officer that there should be further polling; on the ground that the polling on the first date had been interrupted illegally, it was not open to the Returning Officer to ignore the subsequently polled votes while determining whether the respondent deserved to be declared elected or not. He argues that the declaration of the result on the basis of the incomplete polling on the earlier date, was absolutely illegal and void. In these circumstances the very basis of the Notification declaring the respondent vanished according to the learned counsel. He also drew our attention to decision of the Dacca High Court, reported as Muhammad Sadeque Syed Rafiq Ali (PLD 1965 Dacca 330), in which it was held that a writ of the nature asked for in the present case, could be granted. Reference was also made in this connection to Article 98 of the Constitution, which contemplates the issue of such an order.
6. The legal question raised merits consideration, and we grant leave to appeal as prayed. The petitioner will furnish security in the sum of Rs. 2,000 prior to the appeal being heard.