' MAULVI ANWARUL HAQ, J.--- The petitioner and the private respondents Nos.2 to 5 contested elections to the, seats of Nazim and Naib-Nazim in Union Council No,57, Vehari. After the close of polls, the petitioners were declared returned with 3434 votes respondents Nos.2 and 3 followed with 3167 votes while respondents Nos.4 and 5 got 13 votes. Respondents Nos.2 and 3 challenged the said elections by filing an election petition on 9-12-2005. Their contention was that at Polling Station No,2 they had obtained 463 votes while the petitioners had obtained 119 votes but in the official result it was declared that they had 277 votes while the petitioners had 305 votes. They filed Writ Petition No,5181 of 2005 in this Court which was disposed of on 29-8-2005 directing them to approach the learned Chief Election Commissioner or Election Tribunal. They approached the Chief Election Commissioner and a recount was ordered on 31-8-2005. However, this order was withdrawn. They accordingly prayed for a recount of the votes at Polling Station No,2 and consequently for declaring the election to be void. The petitioners filed a written statement denying the said allegations. According to them the Returning Officer had consolidated the result on the basis of the result prepared by the Presiding Officer, there was no miscalculation or any illegality or irregularity. On the application of respondents Nos.2 and 3 the learned Tribunal ordered a recount at Polling Station No,2 vide order, dated 1-3-2006. Writ Petition No,969 of 2006 filed by the petitioners against the said order was dismissed as not maintainable on 7-3-2006 by this Court.
On 8-3-2006 the election records were available and the learned Tribunal proceeded to recount the votes. He found that the petitioner have obtained 115 votes while respondents Nos.2 and 3 had obtained 454 votes. The votes in favour of respondents Nos.4 and 5 were found to be one. As a result of recount 20 votes were rejected. Vide judgment dated 9-3-2006 the learned Tribunal held that the total votes of the petitioners are 3244 whereas the tolal votes of respondents Nos.2 and 3 are 3344. He accordingly allowed the election petition and declared respondents Nos.2 and 3 as returned.
2. Learned counsel for the petitioners contends that upon a plain reading of the election petition a case for recount without recording evidence and at least examining the Presiding Officer concerned was not made out and the learned Tribunal had acted without lawful authority while proceeding to decide the matter consequently passing the impugned judgment. He also refers to several applications filed by the petitioners during the course of recount pointing out the several defects including the allegation that the signatures of the Presiding Officer on the ballot-papers are not genuine. Learned counsel for contesting respondents Nos.2 and 3 on the other hand supports the impugned judgment with the contention that in view of specific allegations made in the election petition the procedure adopted by the learned Tribunal cannot be said in excess of jurisdiction vesting in him.
3. I have gone through the copies of the records appended with this writ petition. I have examined the election petition with the assistance of the learned counsel for contesting parties. After giving the necessary details of the contesting candidates, the election symbols, of the various polling stations and the fact that the polling was held on 18-8-2005 it was stated that in the newspaper of 19-3-2005 the names of the said respondents were published as successful candidates and the news was repeated the following day. It was on 20-8-2005 that the official result was announced and the petitioners were declared returned. In para 7 of the election petition it has been abruptly stated that the result of Polling Station No,2 was changed and the votes were mistakenly calculated by the Returning Officer. It was then stated that according to the unofficial result, respondents Nos.2 and 3 had taken 463 votes while the petitioners had taken 119 votes at Polling Station 2 but in the official result 186 votes of respondents Nos.2 and 3 were mistakenly or deliberately counted in the account of the petitioners and instead of 463 votes the number of votes polled in favour of the respondents Nos.2 and 3 were mentioned as 277 and similarly instead of 119 votes the number of votes of the petitioners were mentioned 305 votes. Now the entire election petition was absolutely silent as to who had provided the said unofficial result to respondents Nos.2 and 3. The categorical allegation is that the Returning Officer miscalculated the votes while consolidating the result. Now copy of the result prepared by the Presiding Officer of Polling Station No,2 is available in the file and according to the contents of Form XIII prepared by the Presiding Officer respondents Nos.4 and 5 got two votes, the petitioners got 305 votes while respondents Nos.2 and 3 got 277 votes. The number of excluded ballot-papers is stated to be 11 thus, 584 valid votes and 11 invalid votes were cast. Now the consolidated statement prepared by the Returning Officer in Form XV narrates the same figures against Polling Station No,2. I called upon the learned counsel of the petitioner as to whether he produced any other result prepared by the Presiding Officer or can he produce the same the answer is in the negative. In the entire election petition there is not even a single allegation against the Presiding Officer and of course no objection to the result prepared by him. I have already noted above that the result was consolidated by the Returning Officer with reference to the result prepared by the Presiding Officer as detailed above and there is no discrepancy between the two documents. The election petition is also silent as to who prepared the unofficial result mentioned therein and how respondents Nos.2 and 3 got the intimation regarding the same. Needless to state that the Punjab Local Government Ordinance, 2001 and the Elections Rules, 2005 framed thereunder do not cater for any unofficial result. The procedure is clearly defined. Upon close of the polls a count is to be made by the Presiding Officer who has to prepare the result in Form XIII which is to be sent to Returning Officer who then consolidate the result. I also find that several applications were filed by the petitioners during the course of recount which were rejected rather unceremoniously by the learned Tribunal, in particular the one stating that the signatures of the Presiding Officer on the ballot-papers are tampered with.
4. In the above noted circumstances apparent on the face of the record I find that it was necessary for an effective adjudication of the said election dispute that an inquiry had been instituted by the learned Tribunal and at least the statement of the Presiding Officer ought to have been recorded particularly when there is no allegation against the Presiding Officer and of course no objection to the result prepared by him in the election petition. Now going by the result prepared by the Presiding Officer and consolidated by the Returning Officer or also the unofficial result mentioned in the election petition the total number of votes (valid and invalid) comes to 595 whereas according to recount made by the learned Tribunal the total number of votes come to 590, however, the impugned proceedings, orders and judgment are silent as to what became of those five votes.
5. For the reasons stated above the writ petition is allowed. The impugned order of the Election Tribunal is declared to be without lawful authority and is set aside. The result would be that the election petition filed by respondents Nos.2 and 3 shall be deemed to the pending before the learned Tribunal. The election records including Forms XIII and XV shall be requisitioned. The learned Tribunal shall also summon the Presiding Officer of Polling Station No,2 of Union Council No,57, District Vehari. The Presiding Officer will be examined with reference to the proceedings at the said Polling Station No,2 and the records thereof. Both the parties shall also be given an opportunity to lead such evidence as is necessary confined to the said Polling Station No,2 and after considering the entire evidence and the said material the election petition shall be decided afresh. The, parties to appear before the learned Election Tribunal on 25-9-2006 and the proceedings be concluded by the learned Tribunal before the year 2006 is out. No order as to costs.
A copy of this judgment be immediately remitted to the Election Tribunal.