' MUHAMMAD MUNIR KHAN, J.-This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby, Muhammad Jamshed Ali, petitioner, wants this Court to declare the judgment dated 15th December, 1980 of the Deputy Commissioner/District Election Tribunal, Vehari, respondent No, 2, to be without lawful authority and also to declare the election of Ghulam Mustafa, respondent No, 1, as Member of Karampur Local Council No, 161 of Electoral Unit Ahmadpur, Tehsil Mailsi, as void and to direct for holding fresh election for the said seat.
2. The facts leading up to this writ petition in brief are that on 25th September, 1979 the petitioner and respondent No, 1 contested the election for the seat in Local Council No, 161 Ahmadpur. Ghulam Mustafa respondent No, 1 was declared as elected. Consequently, the oath was administered to him and he took his office. Thereafter, on 25th October, 1979 Jamshed Ali, present petitioner, filed an election petition before respondent No, 2 challenging the election of respondent No, 1 on various grounds including the ground of his ineligibility i,e, being less than 25 years of age on the date of nomination. Respondent No, 1 contested the petition which was dismissed by respondent No,
2. On 15th December, 1980 on the ground of prematurity. The operative part of the decision is as follows :- "I have gone through the rules on the subject carefully. Under Rule 4 of Punjab Local Councils (Election Petitions) Rules, 1979, an election petition can be presented within thirty days after the publication of result in the official Gazette. In this case, the result was published on 13th November, 1979 while the petition was submitted on 25th October, 1979 when no cause of action had arisen.
Apparently, the petition is premature and is hereby dismissed."
3. Before us, the learned counsel has vehemently contended that the petition which was undoubtedly premature on 25th October, 1979 when presented, was very much mature long- before the date of the decision. As against this the learned counsel for the respondent has seriously defended the impugned judgment and submitted that respondent No, 2 had rightly dismissed the petition on the 'ground that the same was premature when presented and that respondent No, 2 was not bound to take notice of the events subsequent to the institution of the petition.
4. After hearing the learned counsel, we find that the election was held on 15th September, 1979. On the same day respondent No, 1 was found elected. The petitioner filed election petition on 25th October, 1979. The result was published on 13th November, 1979 i,e, after 18 days of the filing of the election petition. Under the rules, the election petition was to be filed within 30 days after the result was published and as such the petition was filed before time. We further find that this petition remained pending before respondent No, 2 for about more than one year and during the pendency, it attained maturity. In the case of Malik Abbas v. Malik Muhammad Mumtaz Khan and 2 others it has been laid down :- "Article 199 - Writ Petition - Prematurity - Oath having been administered to all elected persons- Petition for quo warranto, even if premature on the date of being filed matured later - Petitions could not thus be dismissed simply on the ground of prematurity."
In the instant case the oath had been administered and the election petition matured much before its decision. Respondent No, 2 did not care to dismiss or dispose it of for one year on the ground of prematurity. In these circumstances, we are of the view that there was no legal justification whatsoever for dismissing the petition on a technical ground of prematurity which, in fact, was not available at the time of the decision and as such it cannot be said that respondent No, 2 while dismissing the petition on that ground had acted within lawful authority.
5. The upshot of the above discussion is that we declare the impugned order dated 15th December, 1980 of respondent No, 2 to be without lawful authority and send back the election petition to him for proceeding according to law. The parties are, however, left to bear their own costs. PLD 1980 Lah. 718