' JAVID IQBAL, I.-This writ petition is about election contest for one non-Muslim seat in Zila Council, Jhelum. According to the Schedule prescribed in the notification dated the 28th of November 1979, issued by the Election Authority, respondent No. 1 (Annex. 'An. Nomination papers were filed for the election contest by the petitioner, respondent No, 3 and one Manzoor Maseeh (who later withdrew) on 3-12-1979. On 4-12-1979 the Returning Officer, respondent No, 2, scrutinized the nomination papers and he rejected the nomination papers of respondent No, 3 passing the following order thereon :- "Candidate, proposer and seconder not present. Rejected."
' Against this order of the Returning Officer, respondent No, 3 preferred an appeal under rule 16(1) of the Punjab Local Councils (Election) Rules, 1979 to the Deputy Commissioner, Jhelum, which was accepted by him on 6-12-1979. Respondent No, 3 then approached the Returning Officer that his name be included in the list of candidates. But this request was not acceded to by the Returning Officer. Thereupon on 11-12-1979 respondent No, 3 filed a petition before the Election Authority, respondent No. 1, under section 17(1) of the. Punjab Local Government Ordinance, 1979 (VI of 1979) on which an order was passed to the following effect :- "Through this petition it has been prayed that a direction be issued to the Returning Officer to include the name of the petitioner in the list of validly nominated candidates as his nomination papers were accepted in appeal by the Appellate Authority. The Returning Officer is directed to do so forthwith and allot him Symbol."
' However, when respondent No, 3 went to the Returning Officer again, alongwith the above order of the Election Authority, he was informed by the Returning Officer that the present petitioner had already been declared elected unopposed to the aforementioned seat by him on 10-12.1979 under rule 22 of the Rules. Feeling aggrieved, respondent No, 3 again filed a petition under section 17(1) before the Election Authority. While his petition was pending, the Election Authority vide its order dated 19-12-1979, stayed the operation of the notification and the result of the election if it had been issued. Consequently, no notification was issued in the Gazette and only declaration of result was made by the Returning Officer in form VIII on 10-12-1979, The Returning Officer was summoned by the Election Authority and on 13-1-1980 he admitted that before making the declaration under rule 22 he had not ascertained from the Appellate Authority in writing as to whether an appeal had been filed against the rejection of nomination papers of respondent No, 3 or if filed *no nomination papers rejected by the Returning Officer had been accepted on such appeal. He only stated that he had inquired on the telephone from the office Superintendent of the Superintending Engineer in the above; regard. The Election Authority heard the parties and in a detailed order dated 21-1-1980 (Annex 'H') accepted the petition of respondent No, 3, set aside the declaration of results made by the Returning Officer on 10-12-1979 declaring the petitioner as elected unopposed as well as order of rejection of nomination papers of respondent No, 3 on 4-12-1979 and directed that fresh election to the minority seat of Zila Council, Jhelum be held in accordance with the programme to be notified by the Election Authority. It is against this order that the present writ petition is directed.
2. It was submitted on behalf of the petitioner that initially the petitioner had not been made a party before the Election Authority by respondent No,
3. However, the Election Authority summoned the Returning Officer with the record on 13-1-1980 and had apparently examined him, although his statement was not recorded. Subsequently, the petitioner was made a party and notice was served on him. The petitioner appeared and filed his written statement on 17-1-1980. Respondent No, 3 filed rejoinder on 20-1-1980 and on the following day after hearing the parties the impugned order was passed. It is contended that on 134-1980 when the Returning Officer had been summoned alongwith the record, the petitioner had not yet been made a party and, therefore, did not get the opportunity of cross-examining the Returning Officer. In other words, the Returning Officer was examined by the Election Authority in the absence of the petitioner and since the impugned order was partly based on the statement of the Returning Officer, who could not be cross-examined by the petitioner, there was violation of the principles of natural justice and the petitioner had not been afforded a proper opportunity to defend his case. In this connection reliance was placed on Raheem Shah v. The Chief Election Commissioner of Pakistan (1). In or considered opinion, there is no substance in this argument of learned counsel. When the petitioner became a party and had submitted his written statement, he could also file an application for resummoning the Returning Officer and for cross-examining him if he had been so advised. But this was admittedly not done. On the other hand, it was initially stated in para. 3 of the written statement of the petitioner that the nomination papers of respondent No, 3 were rejected by the Returning Officer because the Returning Officer was satisfied that the signatures of the proposer and seconder of respondent No, 3 were not genuine. But then the first portion of the sentence was deleted and the averment was made to read as under :- "Respondent No, 2 raised the objection before respondent No. 1 that the signatures of the petitioner's proposer and seconder were not genuine."
' However, the Election Authority had called for the original file of the Returning Officer and found out that on the nomination papers of respondent No, 3 except for the order of rejection which has been reproduced above, there was no indication of any objection having been raised by the petitioner at that time about the nomination papers of respondent No,
3. Even learned counsel for the petitioner was asked as to whether the proposer and seconder of respondent No, 3 had denied their signatures and to this question.: the reply was in the negative. In or view, therefore, it cannot be said that there had been any violation of the principles of natural justice or that the petitioner had been condemned unheard.
3. It was next submitted that the Election Authority vide notification dated 10-9-1979 (Annex `13') had appointed the Superintending Engineer Irrigation Circle, Jhelum, as appellate authority for all electoral units of Zila Council, Jhelum. Thus, the Election Authority had prescribed under rule 16(1) the Superintending Engineer; Irrigation Circle, Jhelum, as the competent authority before which respondent No, 3 should have filed an appeal within the prescribed period of two days against the rejection of his nomination papers. However, respondent No, 3 did not file the appeal before the competent authority within the prescribed period. He instead filed the appeal before the Deputy Commissioner, Jhelum, respondent No, 4 who was not competent to pass the order dated 6-12- 1979. Consequently, according to learned counsel the Returning Officer declined to comply with the said order and ignored the same on the ground that the Deputy Commissioner was not competent to issue him any such direction as the acceptance of the nomination papers of respondent No, 3 in his capacity as the appellate authority. According to, learned counsel, the notification in question was still in force and in this background the Election Authority' could not assume jurisdiction under section 17(1) of Ordinance VI of 1979 and to interfere in the matter. It was submitted by learned counsel for {{FOOT NOTE}}
(1) PLD 1973 SC 24 {{FOOT NOTE}} ' respondent No, 3 that although the said notification had been issued, it had not been received by the Superintending Engineer, Irrigation Circle, Jhelum, and therefore, when respondent No, 3 had approached him for hearing the appeal, he was informed that the Superintending Engineer, Irrigation Circle Jhelum had not received any direction to this effect. In support of this contention learned counsel for respondent No, 3 placed on record the grounds of appeal which was originally addressed to the Superintending Engineer, Irrigation Circle, Jhelum, and also an affidavit of his counsel to the same effect. His contention is that under rule 16(1) a candidate whose nomination papers have been rejected can file an appeal within two days next following the day of rejection before the Deputy Commissioner of the District or any other officer authorized by the Election Authority in this behalf and order passed on such appeal shall be final. It is contended that if the Superintending Engineer, Irrigation Circle, Jhelum, was to be considered as the designated authority under the aforesaid notification, the Deputy Commissioner of the District also had concurrent jurisdiction to hear such appeals as he was the appellate authority under rule 16(1) of the Rules. Rule 16(1) reads as follows :- "A candidate whose nomination paper or papers have been rejected may file an appeal within two days next following the date of rejection before the Deputy Commissioner of the District or any other officer authorised by the Election Authority in this behalf, and order passed on such appeal shall be final."
' Thus, it is evident from the plain reading of the words given in the rule that the Deputy Commissioner of the District was competent to hear such appeals or any other officer authorized by the Election Authority in this behalf. Consequently, the acceptance of appeal of respondent No, 3, in the circumstances, was quite in order and the Returning Officer should have complied with the direction given therein.
4. It was next argued that the election, in the instant case, had come to an end on the declaration of the result by the Returning Officer under rule 22(1) and not on the issuance of the notification .To that effect in the Gazette. Reliance in support of this contention was placed on Muhammad Nazir v.
Said Muhammad (1) and Ahad Yusuf and others (2). Thus, according to learned counsel, since the Returning Officer had announced the result of elections under rule 22(1) on 10-12-1979, thereafter the Election Authority had no jurisdiction to entertain the petition of respondent No, 3 under section 17(1) of Ordinance VI of 1979. From that date onwards if respondent No, 3 had any grievance, he should have moved an election petition under 'section 24 of the Ordinance read with rules 3, 13 and 15 of the Punjab Local Councils (Election Petitions) Rules, 1979 before the Election Tribunal and not before the Election Authority, because under section 17(2) the Election Authority had no jurisdiction to enquire into any matter or pass any order in respect of anything relating to an election which can be called in question before an Election Tribunal by way of an election' petition under Ordinance VI of 1979. In this .Connection reliance was placed on Muhammad Afzal v. Miraj Din (3), and Muhammad Aslam v. Punjab Local Council Election Authority (4). In the latter citation it was held that the Election Authority cannot deal with any matter falling within the competence of Election Tribunal under rule 13 of the Election Petitions Rules, for, under section 24 of the Ordinance, no election shall be called in question except by election {{FOOT NOTE}}
(1) PLD 1962 Lah. 421 (2) PLD 1974 Notes 126 at p. 182
(3) PLD 1967 Lah. 689 (4) 1980 CLC 2036 {{FOOT NOTE}} ' petition. It was further held that section 24 of the Ordinance should be read in conjunction with section 17(1) and (2) of the Ordinance. This argument was also raised before the Election Authority by learned counsel for the petitioner. But under rule 13(1) of the Election Petitions Rules an election- petition could be presented before the Election Tribunal within 30 days next after the publication of the reknit in the official Gazette. In the instant case, the result of the election was merely an announcement on the part of the Returning Officer on 10-12-1979, but admittedly the notification or publication of the same in the official Gazette had not taken place. Thus, respondent No, 3 could not file an election petition before the Election Tribunal as his election petition would have been considered pre-mature and, therefore, incompetent. Furthermore, respondent No, 3 was not challenging the election of the petitioner in any sense of the term but he had challenged the illegal rejection of his own nomination papers. Consequently, his election petition before the Election Tribunal would have been incompetent even under rule 13(1) (a) of the Election Petitions Rules where under the Election Tribunal could declare the election of the returned candidate to be void if it was satisfied that the nomination of the returned candidate was invalid. The case of respondent No, 3 was that the rejection of his nomination papers being illegal and the declaration of result of the election wherein the petitioner had been declared elected unopposed also being in violation of rule 22, it could not be said that any election as envisaged by the Ordinance had been held.
Admittedly, no notification pertaining to the result of the election was issued in the instant case.
Rule 3 of the Election Petitions Rules lays down that an election petition shall be presented within 30 days next after the publication of the result in the official Gazette. Since no election petition could be preferred by respondent No, 3 at that stage before the Election Tribunal, the provisions of section 17(2) of the Ordinance were not attracted to the case. The only course left open, in the circumstances, for respondent No, 3 was to prefer a petition under section 17(1) of the Ordinance before the Election Authority. This was done by him on two occasions. On the first occasion when he had challenged the illegal rejection of his nomination papers by the Returning Officer before the appellate authority, namely, the Deputy Commissioner of the District, and his appeal was accepted, the Returning Officer had refused to comply with the direction. Consequently, respondent No, 3 moved the Election Authority under section 17(1) of the Ordinance. However, the direction made to the Returning Officer by the Election Authority was also not complied with by the Returning Officer for the reason that according to him he had already announced the result of the election. Nevertheless, since the result of the election had not been notified in the Gazette so far as required by the rules, respondent No, 3 again moved the Election Authority under section 17(1) of the Ordinance as he at that stage could have not filed an election petition before the Election Tribunal.
In any case, the finding of fact of the Election Authority is to the effect that the Returning Officer while declaring the result of the election had not complied with the mandatory provisions of rule 22 before declaring the result. Consequently, the mere declaration was of no consequence and it could not be said that any election, as envisaged by the Ordinance, had been held. Under section 17(1) a duty is cast on the Election Authority to issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the rules and to make such consequential 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. Thus, under section 17(1) only the Election Authority was competent to entertain the petition of respondent No, 3 at that stage and he could have not moved the Election Tribunal under section 24 of the Ordinance as his election petition could not be filed under rule 3(1) o the Election Petitions Rules. So far as rule 15 is concerned, it does not lay down anywhere that a candidate, proposer or seconder must be present at the time of the scrutiny. The rule is merely permissive and affords an opportunity to these persons to attend the scrutiny proceedings. Consequently, the mere absence of respondent No, 3 or his proposer and seconder was not a valid ground for rejection of his nomination papers, particularly when there was nothing placed on the record to show that there was any objection raised to the candidature of respondent No, 3 or for that matter his nomination papers had suffered from any legal infirmity. Apart from this, the Returning Officer had no authority to have held the election without including the name of respondent No, 3 in the list of the candidates when he had been given a specific direction by the appellate authority. Even afterwards the Election Authority had asked the Returning Officer to do so by order dated 12-12- 1979 but he did not comply with the order and proceeded not only to hold the election but illegally declared the result on 10-12-1979. Learned counsel for respondent No, 3, in the course of his arguments, in reply has also relied on Muhammad Aslam v. Punjab Local Council Election Authority (1).
5. We have heard learned counsel for the parties extensively, but there is no doubt in or mind that in the instant case section 17(2) of the Ordinance was no bar in the course which had been adopted by respondent No,
3. Respondent No, 3 bad challenged the illegal rejection of his nomination papers by the Returning Officer before the notification or publication of the result of election. He had not challenged the validity or other wise of the nomination papers of a returned candidate like the petitioner under rule 13(1) (a) of the Election Petitions Rules. He was incompetent to file an election petition under rule 3(1) of the Election Petitions Rules and, therefore, had rightly and correctly preferred a petition under section 17 (1) of the Ordinance before the Election Authority, for, in such circumstances, it was only the Election Authority which could have interfered under section 17 (1) of the Ordinance. We have carefully gone through the impugned order and in or considered opinion it does not suffer from any legal infirmity. In the peculiar circumstances of the case, it was quite proper to set aside the declaration of the result made by the Returning Officer on 10-12-1979 declaring the petitioner as elected unopposed as well as the order of rejection of nomination papers of respondent No, 3 dated 4-12-1979 and was appropriate to direct that fresh election be held to the minority seat of Zila Council Jhelum in accordance with the programme to be notified by the Election Authority. In that view of the matter, we dismiss the writ petition with costs. {{FOOT NOTE}}
(1) 1980 CLC 2036 {{FOOT NOTE}}