' The Appellant, Muhammad Ashraf has impugned order dated 24.02.2016 passed in W.P.
No,2423/2016 whereby corrigendum dated 11.01.2016 issued by Respondent No,2 was set aside to the extent of Respondent No,3, thereby changing the election result.
2. The facts as per the Appellant are that the Appellant and Respondents Nos,3 and 4 contested the local government election against the seat of General Councilor from Ward No,5, Union Council No,36 ("UC"), Bola Bajwa, District Narowal on 05.12.2015. After consolidation of result, the name of the Appellant was forwarded as returned candidate for Ward No,5, Union Council No,36. However, the name of Respondent No,3 was published in the Official Gazette on 21.12.2015 as the returned candidate for Ward No,5 UC No,36. The Appellant submitted an application before the Election Commission for rectification of the mistake made in the notification issued on 21.12.2015. The application was accepted and a corrigendum was issued on 11.01.2016 whereafter the Appellant took oath of office as General Councilor. Respondent No,3 filed an election petition before the Election Tribunal on 13.01.2016, which is still pending before the Election Tribunal. In the meanwhile.
Respondent No,3 also filed WP No,2423/2016 against application filed by the Appellant apprehending action by the Election Commission.
3. Learned counsel for the Appellant argued that the impugned order dated 24.02.2016 be set aside the corrigendum issued by Respondent No,1 declaring the Appellant to be the returned candidate without due consideration of the fact that the Appellant was the winning candidate and it was on account of some clerical mistake that the name of Respondent No,3 was notified as the returned candidate. Learned counsel further argued that since an election petition had been filed by Respondent No,3, which is still pending before the Election Tribunal, the impugned order could not have interfered in the matter nor could the corrigendum have been set aside. Essentially, the corrigendum was issued to correct a clerical mistake and therefore, it did not merit any interference through a constitutional petition.
4. On behalf of Respondents Nos,3 and 4 it is argued that Respondent No,3 was declared the returned candidate for Ward No,5 UC No,36 after the issuance of notification on 21.12.2015.
Subsequent thereto neither the returning officer nor the Election Commission could interfere in the matter, hence the corrigendum dated 11.01.2016 issued was totally illegal and against the statutory requirement of the Punjab Local. Government Act, 2013 ("Act") and the Punjab Local Government (Conduct of Elections) Rules, 2013 ("Rules"). Learned counsel argued that against the proceedings of the returning officer no appeal lies before the Election Commission, hence Respondent No,3 filed Wit No,2423/2016 alleging that Respondents Nos,1 and 2 acted totally without jurisdiction. The impugned order while considering the matter held that the returning officer had become functus officio after 21.12.2015 and the notification in favour of Respondent No,3 was issued. Any dispute subsequent thereof could only be raised by way of election petition before the Election Tribunal and the returning officer could not have issued the corrigendum. Therefore, the corrigendum was set-aside with the observations that the present Appellant can avail his remedy before the Election Tribunal by filing an election petition.
5. We have heard learned counsel for the parties at length. The record shows that the writ petition was filed by Respondent No,3 in January, 2016 praying for a restraining order against the returning officer from proceeding on the application filed by the Appellant to rectify the error made in notifying Respondent No,3. The case was heard on 27.01.2016 by which time, the corrigendum had already been issued on 11.01.2016. In fact the order impugned before the Court in the writ petition showed that the returning officer had dismissed the application of the Appellant on the ground that his recommendations have already been forwarded to the Election Commission on this issue.
The returning officer in its report before the Court submitted that the name of Respondent No,3 was erroneously notified instead of the Appellant, hence he sought correction of the notified result from the Election Commission. Section 37 of the Act provides that every election result shall be notified and Sections 38 and 39 of the Act provide that an election to office can only be called into question through an election petition before the Election Tribunal. In this case, the notified election result was sought to be corrected by the Election Commission by way of a corrigendum in complete disregard of the law. Once the election result was notified in terms of Rule 38 (4) read with Section 38 of the Act, the only recourse that an aggrieved candidate has is before the Election Tribunal. The Appellant moved an application before the returning officer after the notification of Respondent No,3 in the official gazette as the returned candidate. The Election Commission issued a corrigendum and notified a new result which was against the provisions of the law. In this regard, we agree with the learned Single Judge that the returning officer had become functus officio and could not have entertained the application or recommendation to the Election Commission. In the same way, the Election Commission could not have issued a corrigendum to change the notified election result.
6. We are of the opinion that the Election Commission could not have issued the corrigendum and should have directed the parties to take their dispute before the Election Tribunal where a petition between the same parties was already pending. Furthermore, we note that Respondent No,3 filed writ petition after the corrigendum was issued by impugning the order of the returning officer and not the corrigendum. The learned single Judge set aside the corrigendum which declared the Appellant as the winning candidate by setting aside the declared and notified election result. In this way the Election Commission acted without jurisdiction as it has no power or authority under the law to set aside a notified election result and declare a fresh result. After the issuance of a notification in the Official Gazette under Section 37 of the Act an election dispute can only be resolved by way of an election petition before the Election Tribunal. In this case, Respondent No,3 was declared the winner and notified as the winning candidate on 21.12.2015. Subsequently, by way of the corrigendum the Appellant was declared as the winning candidate. Thereafter, the impugned order set aside the corrigendum and once again put Respondent No,3 in office as the winning candidate. Under the circumstances, since the situation is the same as it was when the result was declared on 21.12.2015, we are not inclined to interfere in the matter as it will not be in the interest of justice. The dispute arose when Respondent No,3 was declared the winning candidate.
Therefore, if the Appellant is aggrieved by the declared result of Respondent No,3, his remedy lies before the Election Tribunal.
7. In view of the aforesaid, appeal is dismissed.