' This petition calls in question the order dated 26-3-1980 of Election Tribunal, Sheikhupura, respondent No, 7, unseating Manzoor Hussain Bhatti, respondent No, 2 as a member of Zila Council, Sheikhupura, representing special interest seat of agriculturists and declaring respondent No, 1 Mushtaq Ahmad duly elected in the vacancy so caused.
2. The petitioner Muhammad Amin was one of the contesting candidates for the special interest seat, which election was also contested by respondents Nos, 1 to 6. The polling took place on 12-12- 1979 and out of the 27 votes cast, respondent No, 2 obtained 14 votes, respondent No, 1 obtained 13 votes, whereas petitioner did not receive any vote. Respondent No, 1 was accordingly declared elected. On 7-1-1980 respondent No, I filed an election petition against respondent No, 2 before the Election Tribunal, Sheikhupura, respondent No,
7. It may be pointed out at this stage that respondent No, 1 only made respondent No, 2 as respondent in that petition and none of the other contestants viz, the petitioner and respondents Nos, 3 to 6 were joined as respondents.
3. An examination of the impugned order shows that during the course of the proceedings, a statement was made by respondent No, I that he was a practising Advocate and that he was going to join service as Additional Public Prosecutor. As a consequence thereof he absented from the proceedings thereafter, and by its ex parte order dated 26-3-1980 afore referred, the Election Tribunal relying on a decision of the Punjab Local Councils Election Authority dated 21-1-1980, held that respondent No, 2 being an Advocate was not qualified to be elected members of Zila Council, Sheikhupura, against the seat reserved for peasants. The said Tribunal, therefore, accepted the petition and declared the election of respondent No, 2 to be void and further declared respondent No, 1 to be duly elected to the vacancy so caused. The Tribunal did so on the ground that respondent No, 1 had polled the next highest votes and it was not shown that any other contesting candidate had produced his ballot box before the Presiding Officer in the Polling Station at the time of the poll. This petition was filed on 29-3-1980. Counsels of parties appearing have been heard.
4. Before me Mr. M. A. Saleem Barrister-at-Law stated that respondent No, 2 had joined service as Public Prosecutor. Therefore, respondent No, 2 obviously cannot be said to be interested in the result of these proceedings.
5. As has been already noted earlier, before the Election Tribunal only respondent No, 1 was joined as respondent. None of the other candidates who contested the election were made parties, neither did they appear before the Tribunal. In these circumstances, learned counsel for the petitioner argued that the election petition filed by respondent No, 1 did not comply with the law and referred to rule 4 of the Punjab Local Councils (Election Petition) Rules, 1979 (hereinafter called Petition Rules) which require the" petitioner before an Election Tribunal to join as respondents in the election petition, all the contesting candidates in the electoral unit concerned, and further drew attention to rule 9 of the Petition Rules to contend that an Election Tribunal was bound to dismiss an election petition if it was found that the provisions of rule 4 had not been complied with. He further argued that the Election Tribunal had without notice to the petitioner and without hearing him concluded that no other contesting candidate had produced his ballot box before the Presiding Officer, and as a consequence thereof had proceeded to declare respondent No, 1 as duly elected. It was argued that the Election Tribunal could not have, without notice to the petitioner determined an issue in which the petitioner's rights were so vitally involved. Learned counsel further argued that in any event the Election Tribunal could not have declared respondent No, 4 to be duly elected in the vacancy caused as a result of the unseating of respondent No, 2 for the votes cast for the latter could not be treated as thrown away votes. Learned counsel further pointed out that the question to whether an Advocate was disqualified to contest a special interest seat as reserved for peasants was admittedly not decided till 21st of January 1980, when the decision of the Punjab Local Council Election Authority on the basis of which the Election Tribunal proceeded to disqualify respondent No, 2 was announced and therefore the disqualification of respondent No, 2 was not of sufficient notoriety on 12-12-1979 to attract the doctrine of thrown away votes. In this context learned counsel relied on the judgment in Muhammad Ashraf's case (1). On the basis of these contentions learned counsel for the petitioner urged that the order of respondent No, 7 was without lawful authority and the
(1) PLD 1980 Lah 311 same be set aside and the declaration of respondent No, 2 as duly elected be declared contrary to the law.
6. Mr. Fazal Mahmood Fazli, learned counsel for respondent No, 1 in reply to the argument of learned counsel argued, firstly, that the conduct of the petitioner was not bona fide and he was not entitled to any equitable relief at the hands of this Court in the exercise of its constitutional jurisdiction. It was contended that the petitioner admittedly was a candidate, who obtained no votes, that he had a right to file an election petition himself against the election of respondent No, 2 which he did not do, and that in the circumstances he should be deemed to have waived his rights and acquiesced to the election of respondent No,
2. It is not incumbent on every defeated candidate to file an election petition. Every contesting candidate is of right under rule 4 of the petition Rules entitled to be joined as a respondent in the election petition and he may in accordance with A rule 14 of the Petition Rules claim in reply to the election petition that he be declared elected. In these circumstances, it cannot be conceded that any contesting candidate who does not file an election petition of his own cannot be allowed to assail the election of the person declared duly elected B either in proceedings before the Election Tribunal or in proceedings before this Court, subject of course to the well-known exceptions regulating the exercise of the constitutional jurisdiction of this Court. This contention, therefore, has no force.
7. It was secondly contended by learned counsel that factual issues not established before a subordinate forum cannot be asserted for the first time in a writ petition, and in this context it was submitted that it has been held by Election Tribunal that the petitioner did not produce ballot boxes before the Presiding Officer at the time of the poll and therefore, he' cannot assert to the contrary in these proceedings. In principle the contention of learned counsel is un-controvertable, but a finding of fact given without hearing the parties involved is not binding on a person who was not heard. In fact had the petitioner been made a party to the election petition he could have been in a position to establish that he had produced his ballot boxes at the time of the poll. The finding against the petitioner without notice to him and without hearing him on this score cannot have any binding force, and this Court is possessed of jurisdiction to disregard findings of fact arrived at without notice and without hearing the persons so affected. Learned counsel for the petitioner had further argued in this context that the Election Tribunal had rightly held that the petitioner had retired, that this finding is supportable by the fact that the petitioner admittedly got no vote at all and did not even file an election petition. Be it as it may, these are only corroborative circumstances. The order proceeds on the assumption that the petitioner did not produce his ballot boxes, which the petitioner could have rebutted had he been heard.
8, Learned counsel for respondent No, 1 fourthly contended that as the petitioner had not produced his ballot boxes before the Presiding Officer, by virtue of rule 30 of the Punjab Local Councils (Election) Rules, 1979, he is deemed to have retired from the contest. He, therefore, contended that it was not necessary to join him as a party to the election petition and consequently it was not required of the Tribunal to dismiss the election petition under rule 9 of the Petition Rules afore referred. I agree with learned counsel for respondent that a candidate who fails to produce his ballot boxes before the Presiding Officer is by virtue of rule 30 afore referred deemed to have retired from the contest and cannot be described as a contesting candidate in terms of rule 4 of the Election Rules, and that failure to implead a retired candidate will not attract the provisions of rule 9 of the Petition Rules. In any event, the Election Tribunal is possessed of the powers of a civil Court as held by the Supreme Court in the case of Muhammad Yaqoob v. Chairman Election Tribunal (1) and it would be permissible for the Election Tribunal to allow addition of parties under Order I, rule 10 of the C. P. C. Read with section 153 thereof, and an omission F to implead a respondent can be rectified by the Election Tribunal, subject of course to other law applicable.
However, it will be noticed that respondent No, 7 has not adverted to this aspect of the case at all.
In fact it has without notice to petitioner and without recording any evidence, proceeded to determine that he was not a contesting candidate. Admittedly not even the record was summoned. On the record admittedly before the Election Tribunal it cannot be determined whether the petitioner had retired or not. Therefore, there was no material on the basis of which the Tribunal could hold that it was not necessary to join the petitioner as a party in the proceedings before it.
Had the Election Tribunal given attention to this issue in exercise of the jurisdiction vested in it under rule 9 of the Petition Rules, it would have been otherwise.
9. It was fifthly argued by learned counsel that the petitioner was not an aggrieved person qua the order of the Election Tribunal, as no order had been passed against him. It was, therefore, argued that he had no right which could be asserted before this Court. I regret my inability to agree with the learned counsel. It has been repeatedly held by the superior Courts that whenever a public functionary has jurisdiction to pass an order that may affect the rights of a citizen or regarding a matter in which he is concerned, he can assert that such order be made according to law and this right may be asserted by resort to the constitutional jurisdiction of this Court. A reference in this behalf may be made to judgments in Montgomery Flour and General Mills v. Director Food (2) and Shamim Textile Mills v. Republic of Pakistan (3). In the circumstances and facts of this case, the petitioner cannot be said not to be an aggrieved person within the meaning of Article 199 of the Constitution.
10. Learned counsel sixthly contended that respondent No, 1 had been rightly declared elected to the vacancy caused by the unseating of respondent No, 2 as the petitioner did not approach the Election Tribunal to be made a party in the petition filed by respondent No, 1 nor did he file an election petition challenging the election of respondent No,
2. As already observed it is not incumbent on every contesting candidate to file an election petition of his own, for he is under the law entitled to be impleaded as a respondent in an election petition filed by any other contesting candidate when he can assert under rule 14 his right to be declared elected. The petitioner was admittedly not made a party to the election petition and as such cannot be made to suffer on account of a deliberate act on the part of respondent No, 1 himself nor can the said respondent be allowed to take advantage of this situation.
11. Learned counsel seventhly contended that the petitioner had chosen to sit on the fence, he did not file any election petition or apply to be made a party to the election petition filed by respondent No, 1 and as such cannot be allowed to challenge the order of Election Tribunal by means of these proceedings. There is no principle of law which debars a person from
(I) PLD 1976 SC 625 (2) P 1. 1) 1957 Lah. 914
(3) PLD 1972 Lah. 572 impugning an order to which he is not a party and in fact a reference to' section 96 of the Code of Civil Procedure will show that even where an ex parte decree has been passed it is permissible for the judgment-debtor to file an appeal against it. Further in election matters the public interest is also involved and the present proceedings before me besides being in the nature of certiorari are also in the nature of quo warranto. In the later proceedings such considerations are not of material relevance. In any event, respondent No, 1 himself as observed earlier, did not make the petitioner a party to the election petition though he ought to have done so under rule 4 of the Petition Rules and it would be permissible to infer that perhaps respondent No, 1 himself wanted to keep the petitioner unaware and uninformed so as to derive advantage from the absence of the petitioner.
12. Learned counsel for the respondent eightly contended that under section 24 of the Punjab Local Government Ordinance, 1979, an election can only be called in question by means of an election petition and the order of Election Tribunal thereon was final. He contended that the purpose of Article 199 of the Constitution was to ensure due observance of law and any interference at the behest of a candidate who did not approach the Election Authority under section 24 of the said Ordinance would lead to contrary results. Accordingly, he argued that the petitioner could not be permitted to approach the High Court, for he allowed the result to become final and did not challenge it earlier. The argument is attractive but overlooks the duty of this Court to ensure that subordinate Tribunals act in accordance with law and in any event the constitutional jurisdiction of this Court cannot be affected or regulated by sub-constitutional law. Where a petitioner establishes that the order of a subordinate forum suffers from infirmities attracting the constitutional jurisdiction of this Court, it would be failing in its duty if it refused to intervene merely on the ground that the petitioner before it had not availed of the sub-constitutional remedies available to him in law. In any event, failure to avail of such remedies ha never been an unsurmountable hurdle in quo warranto proceedings. As such merely because, the petitioner has not filed an Election Petition that would not by itself prevent him to approach this Court for relief were he otherwise entitled to do so.
13. Learned counsel contended ninthly that the petition suffers from laches that the petitioner should have approached this Court earlier. It has been noted that the election took place on 12-9- 1979 and that the Election Tribunal made its impugned order on 26-3-1980. This petition was filed on 29-3-1980 and I do not see how it can be urged that there is any delay in approaching this Court. In fact the petitioner approached this Court within three days of the order of the Tribunal and that he did not do so earlier was probably on account of the fact that the issue as to whether respondent No, 2 was qualified to be elected or to remain as a member of Zila Council was sub judice before the Election Tribunal and in all probability had the petitioner approached this Court, earlier, he could have been directed either to file an election petition or to await the determination of the Election Petition of respondent No, 1.
14. Learned counsel lastly contended that an adequate answer to proceedings in the nature of quo warranto as in the present case was the order of the Election Tribunal. This is begging the question for it would only be an adequate answer were it to be in accordance with law. Otherwise, it is obvious that a writ will have to issue.
15. During the course of hearing of the petition, the petitioner who was present in Court stated that he was an agriculturist, that he had no shop or rice mill but he was dealing in rice. Learned counsel for respondent, therefore, argued that the petitioner was not qualified to contest the special interest seat for peasants and on this score the petition ought to be dismissed. The contention is obviously misplaced. In the first place I have already held that the petitioner is an aggrieved party for the purpose of proceedings in the nature of certiorari and secondly for the purpose of proceedings in the nature of quo warranto it is not necessary that the petitioner be an aggrieved person. In the third place an objection on this score can validly be raised by respondent No, 1 against the petitioner were he to contest the election or to be declared elected to a Local Council.
16. After concluding arguments learned counsel for respondent No, 1 who had not quoted any precedents in his address, stated that he would submit a list of cases on which he relied. This was not done. No other point was raised by learned counsel.
17. As already observed earlier, the Election Tribunal proceeded to determine the case in the absence of the only respondent, on a preliminary point, without summoning the record or recording any evidence and came to the conclusion that the petitioner was not a contesting candidate. There is nothing on the record on the basis of which such a finding can be sustained. In the circumstances of this case it would have been permissible for the Election Tribunal after summoning the record or recording evidence to come to the conclusion that the petitioner having retired was not a contesting candidate in terms of rule 4 of the Petition Rules and as such was not required to be impleaded as a respondent before it, but it could not do so without either examining the record of the Polling Station or recording evidence to show that the petitioner had retired from the contest. In these circumstances as already observed the finding of the Election Authority that the petitioner had retired from the election is not sustainable on the record and accordingly is without lawful authority.
18. The next question which arises for determination is whether this Court should proceed to examine, whether respondent No, 1 was validly declared elected by the Tribunal in the vacancy caused by the unseating of respondent No,
2. The Election Tribunal gave no reasons for declaring respondent No, 1 to be elected. This it could only have done had it come to the conclusion that the votes cast in favour of respondent No, 2 had to be treated as thrown away votes and that no other contesting candidate was entitled to be declared elected in preference to respondent No,
1. Ref : Muhammad Ashraf's case. The Election Tribunal has not adverted at all to these aspects of the matter. Therefore, this declaration is not sustainable. However, I do not think it proper to determine this issue in these proceedings. It would be appropriate to allow the Election Tribunal to determine this issue in accordance with the law.
19. In the result the impugned order of the Election Tribunal, Sheikhupura, respondent No, 7 in so far as it unseats respondent No, 2 does not call for any interference for none of the parties to this petition has prayed for this relief. However, the impugned order in so far it declares that the petitioner is not a contesting candidate in terms of rule 4 of the Election Petition Rules, 1979 and further declaring respondent No, I to be elected in the vacancy caused as a consequence of the unseating of respondent No, 2 is without lawful authority and of no legal effect. Respondent No, 7 accordingly will proceed to determine these two issues and thereafter dispose of the election petition in accordance with law. The petition is accepted as above.
20. In the circumstances of the case, there will be no orders as to costs.