' The petitioner as well as several other persons including respondents Nos. 6 and 8 were candidates for election to Lahore Municipal Corporation from Ward No,
38. The election was held on 25.9-1979, and Muhammad Mansha, respondent No, 6 herein, was declared as elected. On an application having been filed by one Muzaffar Khan Niazi, under section 17 of the Punjab Local Government Ordinance, 1979, the Election Authority by its order dated 7.10-1979, ordered fresh election to be held in the ward. This order was passed on the ground that names of as many as 2390 voters had been erroneously excluded from the electoral roll prepared for the constituency, and these voters had not only been prevented from casting their votes, but had also been deprived of their right to contest the election. A notification dated 28-11-1979 was therefore issued under rule 12 of the Punjab Local Councils (Election) Rules, 1979, announcing a fresh programme for the election. According to this programme, candidates were required to file their nomination papers before 3-12-1979. The petitioner and Ch. Muhammad Ashraf respondent No, 7 were the only persons, who filed their nomination papers. However, as a result of scrutiny, which was held on 4- 12-1979, even the nomination papers of Ch. Muhammad Ashraf were rejected. He filed an appeal before the Appellate Authority, which was dismissed, by order dated 8-12-1979. The petitioner's case is that since he was the only validly nominated candidate for the election, he should have been declared as elected under rule 22 of the said rules. A copy of form VI, prepared under rule 17 of the Punjab Local Councils (Election) Rules, 1979 (Annexure D) shows that the petitioner was the only duly nominated candidate for the election. The petitioner's grievance is that although, according to the rules, he stood elected unopposed, but the Returning Officer contemplated holding an election, and for this purpose sent notices to the petitioner as well as to all those persons who were candidates for the election which had earlier been held. The Returning Officer regarded them as being validly nominated candidates, although none of those persons had submitted any nomination papers in pursuance of this notification issued on 23-11-1979. In this writ petition the petitioner has prayed to the effect that the Returning Officer be restrained from holding the election, and he be further directed to declare the petitioner as having been elected unopposed.
2. This petition is opposed by respondents Nos. 6 to 8. Mr. S. M. Zubair, learned Assistant Advocate- General, appearing on behalf of respondents Nos. I and 2, who are the Returning Officer and the Election Authority, has conceded that the petitioner being the only validly nominated candidate for the election, should have been declared as elected unopposed. No one has appeared on behalf of the remaining respondents despite service.
3. Muhammad Mansha respondent No, 6, who had earlier been declared as elected had filed Writ Petition No, 6095/79 to challenge the order of the Election Authority dated 7-10-1979, whereby fresh election ha been directed to be held. The writ petition however was dismissed be the Intra-Court Appeal filed against the order of dismissal is yet pending. It is requested on behalf of respondent No, 6 that the hearing of the case may be adjourned to await the decision of the. Intra Court Appeal. In my view the request is not reasonable, because if the Intra Court Appeal is accepted, the earlier election will be regarded as being valid, and the result of the subsequent election proceedings, with which this judgment is concerned, will become immaterial and of no consequence. The judgment in the present writ petition is therefore subject to the decision which will be made in the Intra-Court Appeal.
4. It is asserted on behalf of respondent No, 6 that the Election Authority had no jurisdiction to order a fresh election, because an election having already taken place, the jurisdiction to declare the same to be void vested exclusively in the Election Tribunal. A reference in this behalf is made to the provisions of section 24 of the Punjab Local Government Ordinance, which lays down that "no election shall be called in question except by election petition" which could only be filed before an Election Tribunal. It is, therefore, asserted that the order passed by the Election Authority was without jurisdiction.
5. In my view this argument is not available to the respondent in these proceedings. The right claimed in this writ petition arises from proceedings for the fresh election which had to be held in pursuance of the order passed by the Election Authority. The order of the Authority could certainly be challenged directly as it had actually been in the other writ petition, but since the order has not been declared to be void, it has to be regarded as being conclusive for purpose of this writ petition.
The order is not open to collateral attack by way of defence, because unless it is set aside, it must lead on to the subsequent link in the chain of election as prescribed by the rules. There is no warrant for the view that the order is a nullity because it has already survived the test of validity, on the respondent's writ petition against it having been dismissed. In any case it is not necessary to examine in the present case the validity of the order of the Election Authority, because as already observed, this judgment will be subject to the decision of the respondent's Intra-Court Appeal, in which the order has been subjected to a direct attack.
6. It is next contended on behalf of the contesting respondents that the nomination papers which they had submitted in pursuance of the earlier notification were valid for the new election as well, because what had been ordered to be held by the Election Authority was a redpoll, and not a fresh election, and that the earlier notification was therefore still effective. A reference in this behalf is made to rule 28, which empowers the Election Authority to declare the poll at a polling station to be void and to direct a fresh poll to be held; anjd it is urged that the Authority had actually exercised its power under this rule. It is submitted that no fresh notification could be issued in this case because a valid notification having been issued once under sub-rule ( 1) of rule 12, a schedule for the fresh poll had merely to be publicized under sub-rule (3) of rule 12.
7. The contention is without any force. There is no warrant for the view that it was under rule 28 that the Election Authority had passed its order dated 7-10-1979. A fresh poll under that rule could be ordered only at a polling station, and although a re-poll could be ordered at all the polling stations of the constituency, but this had not been done, nor was a case for doing so made out. It is apparent from the language of rule 28 that a re-poll could only be ordered if poll had been stopped by the Presiding Officer of a polling station on account of disturbances at the election or for some other such reason. In the present case no such thing had happened, and there was no question therefore of ordering a fresh poll. Actually one Muzaffar Khan Niazi had filed an application before the Election Authority, under section 17 of the Ordinance, complaining that a large number of voters had been prevented from participating in the election, which application the Authority had accepted. Under section 17, the Authority has the power to make an order "as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules". The Authority had found that as many as 2,390 voters had been deprived of their rights, because their names had been erroneously included in the electoral roll of the adjoining Cantonment Board area, and their right to vote as well as their right contest the election in the constituency had been denied to them. The order could not be regarded as being an order for fresh polling. The availability of opportunity to all voters to participate as voters or candidates is the crux of an election. However the question whether under these circumstances the earlier election could be disregarded as a mere nullity is not to be considered in this judgment, because as already observed, the validity of the order of the Election Authority is a subject matter of a pending Intra-Court Appeal, and the order of the Authority cannot be collaterally challenged in the present proceedings. However there is no doubt that what the Election Authority has ordered, is the holding of a new election and not a fresh poll. It has been held in Muhammad Nazir Hakim v. Bakhtiar Saeed Muhammad and others (1) to the effect that an election is a single process from the date of publication of the electoral roll to the date on which the result of the election is declared. Broadly speaking the procedure for election as prescribed by the rules, is that after the delimitation of constituencies, the Election Authority has to provide electoral rolls to the Returning Officers, who under rule 11(1) are required to cause the electoral rolls to be adjusted and re-arranged in such manner as may be necessary. Under sub-rule (2) the Returning Officers are required to provide the Presiding Officers of each polling station with copies of electoral rolls containing the names of electors entitled to vote at that polling station. Sub-rule
(4) requires that "the electoral rolls of each electoral unit shall be displayed at the office of the Returning Officer for public inspection at least three_ days before the date fixed for the receipt of nominations". These steps are followed by the issue of notification under rule 12, which is reproduced below : "12 (1).-For the purpose of holding election of a member to a local council, the Election Authority shall, by notification in the official Gazette, call upon the voters to elect a member or members as the case may be, from each electoral unit.
(1) PLD 1962 Lah. 421
(2) In the notification issued under sub-rule CO, the Election Authority shall in relation to each electoral unit specify-
(a) A day on or before which nomination of candidates is to be made ;
(b) A day for scrutiny of nomination papers ;
(c) A day on or before which candidature may be withdrawn ; and
(d) A day for the taking of the poll.
(3) A Returning Officer shall, as soon as may be, after the publication of the notification under sub- rule (1), give public notice in Form II, of the dates specified by the Election Authority in respect of, the electoral unit or electoral units of which he is the Returning Officer and the public notices shall be affixed at some conspicuous place in his office, at the office of local council concerned and at some prominent place or places within the electoral unit to which it relates."
' It is apparent from sub-rule (1) of rule 12, that the purpose of issue of notification is to "call upon voters to elect a member, or members, as the case may be, from each electoral unit." A person cannot be a candidate for election unless, as laid down in section 20 of the Punjab Local Government Ordinance, "for the time being his name appears on the electoral roll of that electoral unit". Similarly according to section 19 of the Ordinance, the right to vote can only be exercised by a.
Voter whose name appears on the electoral roll. It is, therefore, obvious that unless the electoral roll of a unit was prepared, the question of issuing a notification under rule 12 did not arise. Since according to the order of the Election Authority, things were ordered to be set right from the stage of correcting the electoral rolls, the process of election from that stage onward had to be carried forward. A fresh notification was therefore necessary and had, in fact been issued.
8. There is also no force in the contention that since according to the fresh notification nomination papers had to be submitted "before 3-12-1979" the ones submitted even prior to the issue of the notification had been validly submitted. Nomination papers had to be submitted in pursuance of the notification, and the ones submitted earlier, could not be regarded as having been filed under it.
9. It is next submitted on behalf of respondent No, 8 that the second notification is defective, and according to the information he had gathered from the Election Authority, a third notification was going to be issued, but instead the Authority only issued a circular in which it was stated that all those persons who had under the previous notification submitted their nomination papers, would be entitled to contest the election. Learned counsel has not been able to show that the second notification is defective. He has neither produced the alleged circular nor shown the law under which it could be issued. Respondent No, 8 having failed to have filed his nomination papers after the issue of the fresh notification, his name was rightly excluded from the list of validly nominated candidates prepared)) under rule 17.
10. On behalf of respondent No, 6 it is also contended that after the issue of the notification, the Returning Officer was duty bound to give a 0 public notice in the manner provided under rule 12(3), but he failed to do so, and his failure, had rendered all subsequent proceedings as void. It is urged that the respondents are entitled to file fresh nomination papers after the Returning Officer will now comply with this legal requirement. It is also submitted that the respondent had in this behalf filed an application before the Election Authority, complaining that due publicity had not been given to the holding of the election on 15-12-1979, but on receiving a notice from the Returning Officer about the holding of the election, he believed that he had been regarded as a validly nominated candidate and therefore withdrew his application. It is also submitted that during the days when the notification had been issued respondent No, 6 was under confinement.
11. There is nothing on record to rebut the presumption that the Returning Officer must have complied with the provisions of sub-rule (3) of rule 12, by giving due publicity. Perhaps the respondent's confinement had prevented him from bothering about election matters.
12. Respondent No, 7, Muhammad Ashraf has also opposed this writ petition. He had filed his nomination papers under the new notification, but those had been rejected by the Returning Officer during scrutiny. He filed an appeal which was also dismissed. He therefore has no cause to urge that an election must be held.
13. The list of candidates prepared in Form VI under rule 17 shows that the petitioner was the only validly nominated candidate for election to Lahore Municipal Corporation from Ward No,
38. None of the respondents has been able to show that his name should have also been included in the list.
Unless this form was amended by a competent authority, it has to be regarded as being final. Rule 221) prescribes as follows :- "22(1). Where, after scrutiny under rule 15, the number of validly nominated candidates for election as a member or members from an electoral unit and where after withdrawal under rule 18 or retirement under rule 19, the number of persons left as contesting candidates, is not more than the number of members to be elected from an electoral units, the Returning Officer shall, by public notice, declare -such candidate or candidates to be elected to the seat or seats, as the case may be."
14. Since the petitioner was the only validly nominated candidate, the Returning Officer sought to have declared him to be elected. Thereafter under sub-rule (3) of rule 22, the Deputy Commissioner should have published in the official Gazette the name of the petitioner as a returned candidate. This writ petition is therefore, accepted and respondent No, 1 is directed to act jn accordance with law, and to declare the petitioner to be elected from electoral Unit No, 38 of Lahore Municipal Corporation. In view of the legal questions involved in the case, there shall be no order as to costs.