' AYESHA A. MALIK, J.---Through this Writ Petition, the Petitioners have impugned order dated 13.12.2016 issued by Respondent No,!, Election Commission of Pakistan, Islamabad ("ECP") along with notification dated 17.3.2016 declaring Respondents Nos,5 and 6 to be the returned candidates as Chairman and Vice Chairman in Union Council No,74, Jhamra of District Council Faisalabad.
The facts:
2. The basic facts in this case are that the Petitioners contested the elections for the seat of Chairman and Vice Chairman of Union Council No,74, Jhamra of District Council Faisalabad in the local government elections held on 31.10.2015. On 2.11.2015 Respondents Nos,5 and 6 moved an application for recount of votes. The said application was not accepted and the result was consolidated and notified on 21.12.2015 declaring the Petitioners as returned candidates. The Petitioners took oath of their office on 14.1.2016. In the meanwhile, Respondents Nos,5 and 6 moved another application before the ECP for recalling the election results in Union Council No,74 which petition was accepted by the ECP on 4.1.2016 by calling for a report on the recount of votes and directing the Returning Officer to recount the votes. On receipt of the report, the ECP passed its short order dated 14.3.2016 declaring Respondents Nos,5 and 6 as the returned candidates without giving any reasons for this decision. The short order was challenged in W.P. No,9148/2016 and the impugned order of 14.3.2016 was set aside by this Court. The matter was sent back to the ECP to decide upon the issues raised afresh through a speaking order after hearing all necessary parties.
The case was heard by the ECP and order dated 13.12.2016 was passed by the ECP which has been impugned in the instant Petition. In terms of the impugned order, Respondents Nos,5 and 6 have been declared as the returned candidate against the seat of Chairman and Vice Chairman, Union Council No,74, Jhamra of District Council Faisalabad and the Petitioners were identified.
The arguments:
3. The question before the Court is whether the ECP could set aside the notified result of the election held on 31.10.2015 after calling for recount of votes, based on an application moved by the losing candidate. Learned counsel for the Petitioners argued that the ECP was not authorized to set aside the notified result of the election nor does the ECP have jurisdiction in the matter hence it could not recall the notified election results. Learned counsel further argued that the power to recount votes is under Rule 36(5) of the Punjab Local Government (Conduct of Election) Rules, 2013 ("Rules"). This power can be exercised before the consolidation of results and not after the consolidation of results. In this case, Respondents Nos,5 and 6 moved an application for recount of votes which could not be entertained as the result had already been consolidated and notified on 21.12.2015.
Learned counsel argued that in terms of Rule 62 of the Rules read with Sections 38 and 39 of the Punjab Local Government Act, 2013 ("Act") no election can be called into question except by way of an election petition made by a candidate for that election. He argued that the only remedy available to Respondents Nos,5 and 6 was in the form of an election petition before the Election Tribunal and as such there is no remedy available before the ECP. Learned counsel argued that the ECP is not the Election Tribunal and it has no jurisdiction or authority to denotify an elected candidate. In this regard, he has placed reliance on Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others (PLD 1986 SC 487), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), Jam Madad Ali v. Asghar Ali Junejo and others (2016 SCM R 251) and Muhammad Mamoon Tarar v. Election Commission of Pakistan and others (2016 CLC 1708).
4. Learned counsel for Respondents Nos,5 and 6 argued that the ECP has acted in accordance with law on the basis of the powers that have been specifically provided under the Rules. He has relied upon Rule 78(b) of the Rules wherein he argued that the power of review has been given to the ECP to pass any order including rejection of ballot papers. Learned counsel argued that on the basis of this power the ECP is fully authorized to review any order passed by an officer under the Act or under the Rules including an order rejecting a ballot paper. In such cases, the ECP can denotify a candidate and set aside the election results if it deems it appropriate. Learned counsel further argued that these powers have been given to the ECP to ensure that the elections are carried out justly, fairly and in accordance with law. In this case, the count of votes had not been carried out in accordance with law and on account of the illegalities carried out by the Petitioners a wrong notification was issued declaring them to be the winning candidates. It is their case that there was a thin margin between the votes of the Petitioners and that of Respondents Nos,5 and 6 which necessitated recount of the ballot papers to verify the result. Learned counsel argued that the Returning Officer while consolidating the election results did not comply with the mandatory provisions of Rule 36(2) of the Rules which required him to examine the ballot papers excluded from the count by the Presiding Officer. The grievance of Respondents Nos,5 and 6 was that the Returning Officer did not examine the ballot papers of the rejected votes in the presence of the contesting candidates or their agents at the time of consolidation of results, hence they challenged it. This act of the Returning Officer gave rise to the genuine apprehension that the rejected votes contained valid votes on the basis of which they would become the winning candidates. Learned counsel argued that this argument was accepted by the ECP which relied upon the reports submitted by the Returning Officer with respect to ballot papers of four polling stations. In terms of the report, out of 34 rejected votes only 27 votes were actually rejected votes in Polling Station No,72 of Ward No,2. In the same way in Ward No,5 of Polling Station No,74/7 one valid vote was rejected and in polling station No,74/8 of Ward No,5 three more votes were added in favour of Respondents Nos,5 and 6. In this way Respondents Nos,5 and 6 were declared the winning candidates on account of the wrong counting and rejection of valid votes by the Returning Officer.
In terms of the impugned order, the ECP has exercised its powers under Rule 78(c) of the Rules which authorizes it td order for a recount where certain illegalities have been committed. Learned counsel argued that similar question was raised before the august Supreme Court of Pakistan in Civil Appeal No,190 of 2016 titled Mubashir Khalil Ansari and another v. Election Commission of Pakistan, Islamabad and others vide order dated 15.2.2016 which was ultimately decided on 1.6.2016 where the august Supreme Court of Pakistan decided the issue in favour of the ECP with respect to the provisions of Rule 78 of the Rules and in W.P. No,429/2016 titled Syed Khurram Abbas Bukhari and another v. Election Commission of Pakistan and others with reference to the same Petitioners before this Court where this matter was also decided in favour of the ECP vide order dated 11.11.2016.
5. Learned counsel for Respondent ECP argued that the ECP is empowered under the Constitution of Islamic Republic of Pakistan, 1973 ("Conititution") to organize and conduct elections and make all arrangements that are necessary to ensure that the elections are held honestly, justly, fairly and in accordance with law. In this regard learned counsel argued that the ECP had extensive powers to regulate the process of elections which included the power to denotify a successful candidate if his success was consent to illegalities in the process of election. Learned counsel argued that the ECP was empowered to make all such orders as were necessary to ensure that the elections were carried out fairly and honestly and that these powers allowed the ECP to pass any order even after the notification of the election results. In this regard, he has relied upon the case titled Workers'
Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681). Learned counsel further argued that the bar of Article 225 of the Constitution does not oust the jurisdiction of the ECP which can take notice of any irregularities or illegalities committed during the process of election in appropriate cases. Learned counsel argued that even otherwise the elections to the Local Government are not covered under the bar of Article 225 of the Constitution. Learned counsel argued that Rule 78 of the Rules gives sufficient powers to the ECP to rectify an illegality or irregularity caused during the election process in order to ensure that proper and honest result is announced and that in order to ensure fair elections the ECP can interfere in matters before or after the issuance of a notification of the result of elections. In this regard, he has relied upon the case titled Aftab Shahban Mirani and others v.
Muhammad Ibrahim and others (PLD 2008 SC 779).
6. Heard and record perused. The law:
7. The ECP derives its power to carry out local government elections from Article 140-A of the Constitution which provides as follows:- 140A. (1) Each Province shall, by law establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government.
(2) Election to the local government shall be held by the Election Commission of Pakistan ' Article 218 of the Constitution is also relevant as it lays down the duty of the ECP as under:
218. (1) For the purposes of election to both houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.
(2) The Election Commission shall consist of,-
(a) the Commissioner who shall be the Chairman of the Commission; and
(b) four members, each of whom has been a Judge for a High Court from each Province, appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.
(3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.
' Therefore elections for the local government are organized and conducted by the ECP, having the primary responsibility to ensure that the elections are held honestly, justly and fairly as per law.
8. The local' government elections are regulated by Chapter V of the Act. Section 19 of the Act provides that the Election Commission shall conduct local government elections and shall by notification in the official gazette declare the election schedule under the Act. The ECP shall also make provisions for the conduct of local government elections and in terms of Section 21 it shall prepare the election rolls. Section 37 of the Act provides that every election or removal of an elected body shall be notified by the ECP. Section 38 of the Act provides that an election to the office of local government shall not be called in question except by way of an election petition.
Section 39 of the Act requires the ECP to appoint an Election Tribunal to hear all election disputes.
An appeal against the order of the Election Tribunal lies before the High Court under Section 46 of the Act. In terms of Section 41 of the Act the Election Tribunal is vested with the power to declare the election of a returned candidate to be void and to declare any other contesting candidate as the duly elected candidate. It can also declare the entire election as void and the grounds for declaring election as void are given in Sections 42 to 44 of the Act. Therefore the Act contemplates that all election disputes shall be decided by an Election Tribunal on the basis of the grounds provided for under the Act.
9. In exercise of powers under Section 144 of the Act, the Punjab Local Government (Conduct of Election) Rules, 2013 were made. Rule 3 of the Rules provides for the powers and functions of the ECP to conduct the elections. In terms of Rule 38 of the Rules, the Returning Officer shall consolidate the result and submit it to the District Returning Officer who shall send the result to the ECP. The ECP shall publish the result in the official gazette. In the instant case, the elections were held on 31.10.2015. The result was consolidated on 2.11.2015 and notified on 21.12.2015. After the notification of the result, Respondents Nos,5 and 6 moved an application before the ECP wherein they prayed for recalling of the election in Union Council No,74, Jhumra of District Council, Faisalabad and re- polling in Polling Station Jungle Sarkar (74/5) and Polling Station G.G.P.S Saiky (74/4). Essentially they required recount of votes on account of the fact that the victory of the Petitioners was on the basis of a very small margin of only three votes. In this regard Rule 38 specifically provides that there shall be no recounting of votes after the consolidation of the results, hence the Returning Officer can recount valid ballot papers before the consolidation of results but not after consolidation. In this case, the Returning Officer rejected the application before consolidation of the result. However, the Respondents moved another application after consolidation of the result before the ECP, who set aside the notification of the Petitioners essentially on the ground that the mandatory provisions of the Act and the Rules were not followed.
10. The question before us is whether the ECP had powers under Rule 78 of the Rules to direct for a recount of votes after the notification of the returned candidate, thereafter, denotify the winning candidate and notify the other candidate as the winning candidates. In this regard, Rule 78 of the Rules is reproduced below for facility of reference:-
78. Powers of Election Commission.- Save as otherwise provided, the Commission may:
(a) stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election:
(b) review an order passed by an officer under the Act or the rules, including rejection of a ballot paper; and
(c) issue such instructions and exercise such powers, and make such consequential orders, 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 Act and the rules.
' Learned counsel for the ECP argued that on the basis of the powers under Rule 78 of the Rules, the ECP has an overarching power to interfere with election results even after the notification is issued under Section 37 of the Act. It was also argued that this power of the ECP is over and above the power and remedy available before the Election Tribunal. We have heard the learned counsel and find that this argument is totally misconceived and against the statute. Rule 78 of the Rules prescribes the executive functions of the ECP to ensure that elections are carried out justly, fairly and in accordance with law as per the mandate of Article 140-A read with Article 218 of the Constitution. The exercise of power under Rule 78 of the Rules is to be exercised in relation to the conduct of the elections and not to adjudicate on election disputes. As per the Act once the election result is notified under Section 37 of the Act, any election dispute that arises thereafter must be referred to the Election Tribunal. This includes any dispute with respect to the recount of votes. This is the specific mandate of the Act creating a specialized tribunal to decide election disputes. There is no provision in the Act which gives the ECP the power to adjudicate on the election disputes. In this regard, Sections 38 and 39 of the Act specifically provide that an election dispute shall only be called into question by an election petition which is to be filed before an Election Tribunal. Hence the authority to settle election disputes vests with the Election Tribunal and not with the ECP. In this regard, it is clarified that an election dispute is one which requires resolution after the result is declared and the returned candidates are notified. In this way, the ECP completed its function of conducting the election and any dispute related to the manner in which the election was carried out or votes were counted will be referred to the Election Tribunal and not the ECP.
11. Furthermore we find that Section 41 of the Act specifically authorizes the Election Tribunal to declare the election of any returned candidate to be void and to declare any other contesting candidate as duly elected. In the same way the Election Tribunal can declare the election to be void on the grounds given in Sections 42 to 44 of the Act. Section 44 of the Act gives the Election Tribunal the power to declare the election as a whole void if it is satisfied that the provisions of the Act or the Rules have not been complied with. Therefore the power of declaring any election of any returned candidate to be void and the power of declaring any other contesting candidate to have been duly elected vests solely with the Election Tribunal and not with the ECP. We also find that the power relied upon by the Election Tribunal emanates from the Rules which Rules are delegated authority in terms of Section 144 of the Act. The power given to the ECP under the Rules are to ensure that the substantive powers under the Act are given effect meaning that the elections are carried out in the prescribed manner fairly justly and in accordance with law. The Act does not envision any overarching power with the ECP nor does it create a parallel adjudicatory body to adjudicate on election disputes. The spirit of the law is that the entire election process should be concluded before any challenge to the election process begins. This ensures that the election process is completed, before disputes arise contesting the result. The ECP is empowered under Rule 78 of the Rules to issue all necessary instructions and pass necessary orders so that the election is conducted honestly, justly and in accordance with law as per the provisions of the Act. If there is any issue during the process the ECP can look into the matter to ensure that the elections are carried out smoothly. However, once the result of the election is notified, any dispute arising thereafter must be placed before the Election Tribunal who is authorized under the Act to decide upon election disputes. Hence if the name of the returned candidate is published in the official gazette, an election petition has to be filed under Section 38 of the Act read with Rule 62 of the Rules before the Election Tribunal and the ECP cannot denotify any candidate on account of the fact that there is a dispute on the counting of the votes. The grounds for declaring the election of the returned candidate as void are provided for in Sections 41, 42, 43 and 44 of the Act which grounds must be invoked by the Election Tribunal and Section 44 of the Act specifically deals with the issues where the provisions of the Act or Rules have not been followed.
12. In this case the ECP interfered in the matter on account of the procedural flaws urged by Respondents Nos,5 and 6. Furthermore, Respondents Nos,5 and 6 were aggrieved due to the small margin of victory in favour of the Petitioners. The issue squarely falls within the domain of an election dispute which could be heard by the Election Tribunal. The ECP could not have interfered in the matter as the Petitioners were the declared winning candidate for Union Council No,74, Jhamra of District Council Faisalabad and any dispute in relation to his victory had to be raised before the Election Tribunal as that is the remedy prescribed under the law. Therefore this act of the ECP was totally without jurisdiction, hence illegal.
13. Under the circumstances, this petition is accepted and impugned order dated 13.12.2016 passed by Respondent No,1 as well as notification dated 17.03.2016 declaring Respondents Nos,5 and 6 to be the returned candidates as Chairman and Vice Chairman are set aside. Consequently the notification dated 21.12.2015 is revived along with the oath of office taken by the Petitioners on 14-1- 2016.