' Mrs. Ayesha A. Malik, J.--Through this Intra Court Appeal, the Appellant has impugned order dated 19.11.2015 passed in an application being C.M. No. 3 of 2015 filed by Respondents No. 5 and 6 under Section 12 (2) of the Code of Civil Procedure ("CPC") whereby the said application was dismissed and order dated 17.11.2015 by virtue of which W.P.No. 35350/2015 was accepted by learned Single Judge.
2. The facts of the case are that the Appellant and Respondents No. 5 and 6 contested Local Government Election for the -'seat of Chairman and Vice Chairman in U.0 No. 198 Shadman Lahore held on 31.10.2015. The Appellants were the winning candidates for the seat of Chairman and Vice Chairman. Respondents No. 5 and 6 moved an application for recount of the votes on 01.11.2015.
They filed W.P.No. 34053/2015 before this Court seeking a direction to Respondent No. 4, Returning Officer for U.0 198 to decide their pending application. This direction was issued by this Court on 06.11.2015. However, Respondents No. 5 and 6 concealed the fact that on 06.11.2015 notice for consolidation of result had been issued and that the result was consolidated on 07.11.2015. The Returning Officer of U.0 No. 198 on the direction of the Court heard the application and rejected it on the ground that notice for consolidation of result had already been issued, hence no recounting could take place. This order of the Returning Officer was challenged by Respondents No. 5 and 6 through filing of W.P.No. 35350/2015. In terms of the order dated 17.11.2015 passed by the learned Single Judge the Returning Officer was obligated to decide the application for recounting before the consolidation of result. Hence the consolidation order of 07.11.2015 was set-aside and a direction was given to the Returning Officer to decide the application for recount of vote before proceeding with the consolidation. Against this order of 07.11.2015, the Appellants moved application C.M. No. 3/2015 under Section 12(2) of the CPC primarily on the grounds that on 17.11.2015 the result was consolidated and Respondents No. 5 and 6 misrepresented the facts to the Court in W.P. No. 34053/2015 and obtained an order directing the Returning Officer to recount the votes. The application of the Appellants was heard but dismissed on the ground that no fraud or misrepresentation by Respondents No. 5 and 6 has been brought before the Court. Hence this appeal.
3. Learned counsel for the Appellants argued that Respondents No. 5 and 6 obtained a direction from the Court on 06.11.2015 for a decision on their application for recount of votes when the consolidation process was underway and finalized on 07.11.2015. Learned counsel stated that Respondents No. 5 and 6 concealed the issuance of consolidation notice from the Court which consolidation was fixed for 06.11.2015 and then postponed to 07.11.2015. Learned counsel stated that consolidation process was completed on 07.1 1.2015 at 10.00 AM in the presence of all the parties.
The Respondents No.
5. And 6 then challenged the decision of the Returning Officer rejecting their recount application on 07.11.2015 and the learned single Judge notwithstanding the consolidation order, directed the R.O.
To decide upon the recount application and then consolidate the result. Learned counsel argued that once the consolidation order is issued the Returning Officer cannot entertain any application for recounting of votes as per Rule 35(5) of the Punjab Local Government (Conduct of Elections)
Rules, 2013 ("Rules").
4. On the other hand, learned counsel for Respondents No. 5 and 6 argued that no case of fraud or misrepresentation has been made out. He stated that Respondents No. 5 and 6 moved application for recounting of votes well before beginning of the consolidation process and the Returning Officer failed to take notice of the application filed by Respondents No. 5 and 6. Hence they approached this Court in its constitutional jurisdiction for a simple direction on their application.
' Learned counsel argued that a direction was issued on 06.11.2015 in W.P.No. 34053/2015 whereafter the Returning Officer on 07.11.2015 rejected the application of Respondents No. 5 and 6. Learned counsel argued that the stated Respondents challenged the said order of rejection on the ground that at that time, the consolidation order had not been issued, hence the Returning Officer was obligated to decide their application.
5. Leaned DAG also supports the contention made by learned counsel for Respondents and supports the impugned order. Passed by learned Single Judge.
6. We have heard the learned counsel for the part s at length and gone through the available record. The order impugned dated 19.11.2015 before us has rejected the application of the Appellants filed under Section 12(2), CPC on the ground that no fraud or misrepresentation has been made out. The Appellants have also impugned the order of 17.11.2015 passed by learned Single Judge in WP No. 35350/2015 on the ground that the consolidation order could not have been set- aside simply on account of the fact that the application of Respondents No. 5 and 6 for recount of votes was pending. In this regard Rule 36(5) of the Rules provides that the Returning Officer may recount the valid ballot papers before consolidation of results if the Returning Officer is satisfied that the request or the challenge is reasonable. In terms of this Rule there is no obligation on the Returning Officer to decide every single application for recount that is placed before him. In the first instance, the Returning Officer must satisfy himself that the request for recount or the challenge is reasonable, whereafter he can order for recounting of the votes. As per Rule 36(5) of the Rules this entire exercise must be done before consolidation of results. Once the result is consolidated, the Returning Officer cannot entertain any application for recounting of votes.
7. In this case, WP No. 35350/2015 was filed on 16.11.2015 challenging the consolidation order of 07.11.2015 and an order was issued on 17.11.2015 requiring the Returning Officer to decide upon application for recount after the consolidation order had been issued on 07.11.2015. The record shows that it took Respondents No. 5 and 6 ten days to file the writ petition challenging the order of 07.11.2015. Given that the consolidation order had already been issued there was no justification to interfere as the Rules prohibit recount after consolidation of results. As we understand, the spirit of the law is that the entire election process should be concluded before the challenges to the election process begin. The pendency of an application for recount does not affect the consolidation of results and the consolidation order cannot be set aside on account of the pendency of the application. This is because Rule 36 (5) of the Rules is clear that the Returning Officer may entertain an application for recount. In this context, it was argued that if the Returning Officer does not entertain the application, then the applicant left without a remedy and will not be able to challenge the result. We have considered this argument as well and find that it is also without any merit. As per the Rules, after consolidation of the result, the election result is declared under Section 37 of the Punjab Local Government Act, 2013 ("Act") read with Rule 38 of the Rules and in terms thereof the Election Commission publishes the results in the Official Gazette. Once the name of the returned candidate is published in the Official Gazette, an election petition can be filed under Sections 38 of the Act read with Rule 62 of the Rules before the Election Tribunal. Section 38 and 39 of the Act provide that an election of a returned candidate can only be called into question through an election petition before an Election Tribunal. The grounds for declaring the election of a returned candidate as void are provided in Section 42 of the Act, which reads as follows:-- "42. Ground for declaring election or returned candidate void.--
(1) The Election Tribunal shall declare the election of the returned candidate to be void if it is satisfied that--
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, qualified for or was disqualified from, being elected as a member; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2) The election of a retuned candidate shall not be declared void if the Election Tribunal is satisfied that any corrupt or illegal practice was committed without the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission."
' Section 44 of the Act provides the ground on which the entire election can he declared void, which reads as under:--
44. Ground for declaring elections as a whole void.
' The Election Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of--
(a) the failure of any person to comply with the provisions of this Act or the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election.
' Therefore, the spirit of the Act is that the election process should be completed whereafter the declared result can be challenged on several grounds including the ground that the provisions of the Act or the Rules were not complied with.
8. We also noted that corrupt practice, bribery, undue influence, illegal practice, tampering and conduct of officials can also be tried under Section 60 of the Act meaning thereby that allegations of abuse of power can also be raised by way of a complaint under the Act. In the case cited at Muhammad Adam Baro v. Sardar Muhammad Muqeen Khosa and others (2013 SCM R 1676) it was held that the High Court can issue a direction for deciding applications because a direction does not disenfranchise the petitioner and the bar under Article 226 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") would not be applicable. In the case cited at Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49 Islamabad and other (PLD 2008 SC 487) it was held that in election matters the High Court can interfere if no remedy is available to the petitioner.
In the case before us remedy is available to the Appellants, however they seek interference before availing that remedy. Learned Single Judge set aside the consolidation order simply because the Returning Officer had not decided the application for recount of votes. The learned Single Judge issued a direction on 06.11.2015 to decide the application if the consolidation of result has already not taken place, When the matter came up again before him on 17.1 1.2015 he set aside the consolidation order because the recount order was not a speaking order, and the Appellants were not heard. We are of the opinion that irrespective of whether the Returning Officer's order was a speaking order or not, any decision on the application was subject to consolidated results. Once the consolidation of results was announced, the Appellants have to wait for the results to be published in the Official Gatelle. Thereafter they have remedy available to them to challenge the result or the process, as the case may be, before the Election Tribunal. All illegalities and irregularities committed by the Returning Officer, as alleged by the Respondents, can be decided after the declaration of results in an election petition. Therefore, to our minds interference in the election process only slows down or delays the declaration of results especially when the Act read with Rules enables the process as well as the results to be challenged by way of an election petition. It was also argued that the remedy of appeal is not available as the Election Tribunals have not been established. The learned DAG stated that as per practice and procedure once the results are declared the Election Tribunals will be notified. We note that the remedy of appeal is provided in the Act therefore, to require it to be available at this stage is premature since an election petition can only be filed once the result is declared in the Official Gazette.
7. Under the circumstances, the appeal is accepted and the orders dated 19.11.2015 and 17.11.2015 passed by learned Single Judge are set-aside and the order dated 07.11.2015 passed by Returning Officer U.0 198 Shadman, Lahore is maintained.