' Seven persons including Abdul Rashid Khan (petitioner), Sh. Sajjad Sarwar, Advocate (respondent No, 2) and Muhammad Yousaf (respondent No, 3) were candidates for election to Municipal Committee, Sahiwal, from the same electoral unit. Respondent No, 3 was declared as elected.
Respondent No, 2, who had secured the second highest number of votes, filed an election petition before the Election Tribunal, challenging the election of respondent No, 3 on the ground that he being a depot-holder was disqualified to be .a candidate. The Tribunal by its order, dated 1st March, 1980 accepted the election petition, and after declaring the election of respondent No, 3 to be void, further declared Sh. Sajjad Sarwar, respondent No, 2, who had secured second highest number of votes, to have been duly elected.
2. While the aforesaid election petition was pending, respondent No, 3 submitted his resignation to the Chairman of the Municipal Committee. The Chairman forwarded this resignation to the Deputy Commissioner, Sahiwal, along with his letter, dated 28th February, 1980, (Annexure A to the Writ Petition). The resignation was notified on 31st March, 1980.
3. The petitioner had challenged the impugned order of the Tribunal on the ground that respondent No, 3 having resigned from his membership, the Tribunal had become functus officio in so far as the petition pending before it was concerned. It is prayed in the writ petition that the order passed by the Election Tribunal, dated 1st March, 1980, declaring respondent No, 2 as elected, may be declared as being without lawful authority. It is urged on behalf of the petitioner that even otherwise, under the facts and circumstances of this case, the Election Tribunal, could only declare the election to be void as a whole. Reliance is placed on Muhammad Ashraf v. Muhammad Ajaib and others (1), Saeed Hassan v. Payar Ali and 7 others (2) and Sanaullah v. Election Tribunal, Gujrat and others (3). It is urged that respondent No, 2 could not be declared as elected because he had secured only a minority of the total votes which had been cast in the election, and declaring him elected would tantamount to disfranchising a majority of voters.
4. Annexure A is a letter, dated 28th February, 1980, signed by the Chairman of Municipal Committee, Sahiwal and addressed to the Deputy Commissioner, Sahiwal, informing him that Muhammad Yousaf (respondent No, 3) had tendered his resignation from membership of the Municipal Committee. This resignation was notified under section 34 of the Punjab Local Government Ordinance, 1979, on 31st March, 1980 and it was B mentioned in the notification that Muhammad Yousaf had resigned with effect from 28th February, 1980. A copy of the notification was filed by the learned counsel for respondent No, 2 during arguments, which copy has been placed on the file.
5. A plain reading of section 30 of the Punjab Local Government Ordinance makes it clear that a member may resign his. Office "by tendering resignation in writing" to the local council of which he was a member. The fact that section 34 prescribes that the resignation of a member shall be notified, is no warrant for the view that resignation takes effect fro the date of issue of notification, as is contended on behalf of respondent No,
2. The respondent could resign by merely tendering the resignation in writing, and he having done so while the election petition was yet pending, had resigned before the same was decided. It may also pointed out that notification also states that respondent No, 3 had resigned on 28th February, 1980. 1 also do not find any force in the contention raised on behalf of respondent No, 2 that the resignation tendered to the Chairman of the Municipal Committee was not valid, because it had to be tendered to the Municipal Committee.
Section 36 of the Punjab Local Government Ordinance is a complete answer to this objection. The section precribes that the executive authority of a local council shall extend to the doing of all acts necessary for the due discharge of its functions under the Ordinance and save as otherwise provided, the executive {{FOOT NOTE}}
(1) PLD 1980 Lab. 311 (2) PLD 1976 SC 6 (3) PLD 1966 Lab. 97 {{FOOT NOTE}} authority of a local council shall vest in and be exercised by its Chairman. No other provision had been referred to on behalf of respondent No, 2 in that behalf. The seat of respondent No, 3 having fallen vacant on his resignation, a new election had to be held under section 28 of the aforesaid Ordinance, and in this view of the matter, the election petition had become infructuous. In these circumstances, the Election Tribunal on receiving the information of the elected member's resignation, should have disposed of the election petition as having become infructuous.
6. The second question which arises in this case is that even if the Election Tribunal had to decide the case on merits, could it under the circumstances of this case, declare respondent No, 2, who had secured a minority of votes, to have been duly elected? In the judgments cited on behalf of the petitioner, it has been held to the effect that in the case of a single member constituency, if a returncd candidate is found by the Election Tribunal, to- have not been validly elected, then the candidate having polled the next highest number of votes is not automatically to be declared as elected. It has been held in Raja Muhammad Afzal Khan v. Ch. Manzoor Elahi and others (1) as follows "Voters casting their, for a candidate who is disqualified under the law, the disqualification being founded on some positive and definite fact existing and established at the time of the poll the same being sufficiently notorious as to saddle the electors with knowledge thereof, are deemed to throw away their votes and to 'mean not to vote for any one for that office as well as to assent to the election of the opposing and qualified candidate. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences, then even though the candidate may be unseated the seat cannot be given to the candidate with the next highest number of votes and the election has to be declared void as a whole."
7. It is not disputed in the present case that respondent No, 3 being a depot-bolder was disqualified to be a candidate for the election. What is contended on behalf of respondent No, 2, is that the fact that respondent No, 3 was a depot-holder was notoriously known to the voters, because he was also mentioned in the voters list itself as being a depot-holder. However, keeping in view the level of legal knowledge and awareness of the average voters of this country, it could hardly be assumed that the disqualification was so apparent and notorious to them as to justify the inference that the electors who had voted for respondent No, 3 meant to throw away their votes. It is also to be noted that respondent No, 3 could not have contested the election, unless his name was included in the list of contesting candidates which is prepared in Form VII as prescribed under rule 18 (4) of the Punjab Local Councils (Election) Rules. In my view the inclusion of his name-in the list was sufficient warrant for the voters to believe that he was not disqualified. In fact the voters had no option but to regard the candidates mentioned in the list as being eligible.
7-A. It is also urged on behalf of respondent No, 2 that the petitioner has no locus standi to file this petition, because he did not urge before the Election Tribunal, that respondent No, 2 was not entitled to the relief of being declared as elected. I find that this contention is factually incorrect, {{FOOT NOTE}}
(I) PLD 1975 Lah. 1276 {{FOOT NOTE}} because it is observed by the Election Tribunal in its order that "Abdur Rashid Khan respondent No, 4 has, however, prayed that the election be declared void as a whole". The contention that the petitioner is estopped from filing this writ petition, because he had supported respondent No, 3 before the Election Tribunal as having been validly elected, is without substance. The question whether respondent No, 3 is disqualified, is not in dispute in the present case. What has been challenged is the competency of the Election Tribunal to declare respondent No, 2 as elected, in consequence of respondent No, 3 having been found to be disqualified to be a candidate. No question of estoppel, therefore, arises.
8. I find that the Tribunal failed to take into consideration the fact that only a minority of voters had voted for respondent No, 2, and that he could not be regarded as having been elected. The Tribunal has not kept in view that under the circumstances of the case, the provisions of G rule 15 of the Punjab Local Councils (Election) Rules were attracted and the participation of respondent No, 3 in the election had "materially affected" its result. Undar these circumstances, the declaration given in favour of respondent No, 2 by the Tribunal suffers from arbitrariness.
9. In view of the above considerations, it is declared that the order passed by the Election Tribunal, dated 1st March, 1980, declaring respondent No, 2 as elected is without lawful authority and is of no legal effect. Respondent No, 3 having resigned from his office as a member, or, in any case, he having been found to be disqualified to be a member, the seat vacated by him could only be field in by a fresh election. This writ petition is accepted but the parties are left to bear their own costs.