ZAFFAR HUSSAIN MIRZA, J.-Leave to appeal in this case was granted to examine the contention of the appellant whether the Election Tribunal could go into the question of the validity of the ballot- papers for the first time without the Presiding Officer having examined this question and decided it, after holding an inquiry in terms of rule 6(4) of the N.-W. F. P. Local Councils (Election of Chairman and Vice-Chairman) Rules, 1979 (hereinafter referred to as the Rules).
2. Briefly stated the facts forming the background of this appeal are that the election of the Chairman of the Union Council, Barwa, District Dir, was held under rule 5 of the Rules, on 27-10-1979, in which the only rival candidates were the appellant and the first respon--dent. In all 16 members of the Union Council cast their votes and on the close of the polls, the Presiding Officer on opening the ballot---boxes found that equal number of votes, namely, 8 each, was cast in favour of each candidate. In terms of rule 6 (5), therefore, the Presiding Officer proceeded to resolve the tie between the two candidates by draw--ing lots. In the drawal of lots, the appellant was successful and his name was consequently notified as the successful candidate for the office of the Chairman on 30-10-1979.
3. Being dissatisfied with the election, of the appellant, the first respondent challenged the election by means of Election Petition under rule 8 of the Rules before the Deputy Commissioner, Dir. The latter called for the report of the Presiding Officer and on perusal of the same alongwith other record and after hearing the arguments of the parties, reached the conclusion that the first respondent had secured 8 votes but the appellant had received only 6 votes, 2 votes being invalid.
In this view of the matter, he declared the first respondent as the successful candidate for Chairmanship of the Union Council, by his order, dated 15-12-1979.
4. The appellant sought to challenge the legality of the order of the Election Tribunal in a writ petition before the Peshawar High Court, Peshawar which was dismissed by a learned Single Judge of that Court by his order, dated 3-3-1980. This order is now before us in this appeal.
5. We have heard the learned counsel appearing for the contest--ing parties. In support of the petition, the only ground pressed before us is that the Election Petition was not maintainable, in view of the fact that no objection was raised by the first respondent at the time of count in respect of the validity of any votes cast in favour of the respon--dent and on the contrary agreed to the correctness of the number of votes secured equally by both candidates, permitting the Presiding Officerto decide the result of election by drawing lots. The argu--ment was that the disputes relating to the marking of the ballot-papers, were expressly placed within the jurisdiction of the Presiding Officer and consequently without raising such plea before the Presiding Officer, the respondent was not entitled to raise this question for the first time in an Election Petition before the Election Tribunal. Alternatively, the same plea was supported on grounds of estoppel and acquiescence.
6. After hearing the learned counsel, we have come to the conclu--sions that there is no substance in this contention, rule 6 (4) lays down as under :- "(4) When the ballots have been cast, the Presiding Officer shall open the ballot-boxes in the presence of the members and count the votes in favour of each candidate for the respective Offices. If there arises any doubt or dispute about the marking of a ballot-paper, the Presiding, Officer may decide the issue after holding such summary enquiry on the spot as may be necessary."
It is also pertinent to set out the material provisions of rule 8 relating to Election Petition, which read as under :- "8. Election petition.-(1) No election of Chairman or Vice-Chairman of a District or Municipal Corporation or Municipal Committee shall be called in question, except by an election petition resented to the Additional Commissioner of the Division or such other Officer as Government may appoint in this behalf, within 30 days of the dec--laration of result.
(2) No election of Chairman or Vice-Chairman of a Town Committee or a Union Council shall be called in question, except by an election peti--petition presented to the Deputy Commissioner of the District or such other Officer as Government may appoint to this behalf. Within 30 days of the declaration of result.
(3)
(a)
(b)
(C)
(4) The Additional Commissioner, or the Deputy Commissioner or the Officer appointed by the Government, as the case may be, may, after such enquiry as he considers necessary, uphold the election or award a declaration prayed under sub-rule (3), for any material irregularity or any other sufficient reasons to be recorded."
7. The plain reading of the provisions contained in rule 8 reproduced above, leave no manner of doubt that every election dispute can be resolved only by means of an Election Petition before the Election Tribunal constituted under this Rule, which is a Tribunal of exclusive jurisdic--petition. Sub- rule (4) of this Rule further makes it clear that the ambit of authority and jurisdiction of the Election Tribunal extends to the setting aside of the election of the returned candidate and declaring the petitioner before it to be duly elected, inter alia "for any material irregularity or any other sufficient reasons to be recorded". There was no dispute before us that the rejected two ballot-papers from the count of the present appellant are at page 49 of the printed record. According to rule b the manner of casting the vote is to mark of cross on the ballot-paper against the name of the candidate of the voter's choice. It is also admitted position that in the two disputed ballot-papers, the cross mark has been placed not in the column opposite to the name of the candidate, but in the column reserved at Serial No. 3 in both cases, which is blank as there were only two candidates.
Prima facie, therefore, a question did arise as to whether these votes were cast in favour of any contesting candi--date. No doubt if a dispute had been raised as to the validity of these ballots before the Presiding Officer, he could have decided the question for the purpose of declaring the result. But there is nothing in the provisions of Rule 6 (4) that such adjudication would be binding or con--clusive decision. Ultimately all such disputes are to be determined con--clusively by the Election Tribunal as already observed. We also find nothing in rule 6 (4) of rule 8, which in any way places any embargo on the jurisdiction of the Election Tribunal to entertain a dispute of this nature, without such objection first being raised before the Presiding Officer. The provisions under interpretation are not new and are found in the predecessors legislation on the subject. Learned counsel was unable to refer us to any authority in support of his contention.
8. In support of his plea based on estoppel and acquiescence, learned counsel placed strong reliance on a portion of the report of the Presiding Officer in which he had stated : "Keeping in view the correct--ness of the votes polled in favour of both the candidates, the candidates were agreed upon it that in case of their equal votes the result should be declared through lots, which was carried out accordingly in presence of the members". The officer had further stated that the first respondent had not raised any objection in regard to the votes included in the count of the appellant. The statement taken at its best can hardly make out a case for estoppel, apart from the well established rule that there can be no estoppel against statute. Besides the ingredients of estoppel are wholly lacking as the appellant had not, acted upon any re--presentation of the respondent to alter his position. Similarly waiver arises by intentional relinquishment of a known right, claim or or privilege and even if the respondent agreed, that lots be drawn, his agreement was redundant, as, the Presiding Officer, in observing this procedure, was merely discharging his statutory function, having found, according to his light, that both candidates had secured an equal number of votes.
9. We have carefully persued the order of the Election Tribunal and although it would have been more desirable for the Tribunal to have dealt with the question of invalidity of the two ballots in a more detailed manner, we find that in rejecting these he has not committed any illegality or violated the rule that, in determining questions relating to marking of the ballot-papers, the rule of decision is to ascertain the intention of the voter from such marking.
10. On hearing the learned counsel we are satisfied that the High Court rightly declined to interfere with the impugned order and .We may, with respect to the learned Judge, add that the question of the validity of ballot-papers raised by the appellant, lay within the ambit of the jurisdiction of the Election Tribunal exclusively and stands finally dis--posed of.
11: In the result, this appeal fails and is accordingly dismissed with no order as to costs.