' KHIZAR HAYAT, J.-This Intra-Court Appeal has arisen out of the order of learned Single Judge in Chambers dated 6th February, 1980 dismissing the writ petition of the appellant challenging the election of respondents Nos. 5 and 6 as Chairman and. Vice-Chairman of Union Council Kacha Mianwali, Tehsil Rajanpur (now District Rajanpur). During the pendency of this appeal, Malik Umar, Vice-Chairman, respondent No, 6, died and, therefore, his name from amongst the respondents was allowed to be deleted by this Court's order dated 18th October, 1981.
2. The facts relevant for this appeal briefly are that Utma, appellant. a Hindu is a duly registered non-Muslim voter, in Kacha Mianwali Union Council. He wanted to contest election for the "minority seat" from this constituency and in the event of success he would have participated in the election of Chairman and Vice-Chairman of his Union Council.
3. The Punjab Local Councils Election Authority, in pursuance of the provisions of sub-rule (1) of rule 12 of the Punjab Local Councils (Election) Rules, 1979, issued Notification No, E A P-8/79, dated 1st September, 19 /9 calling neon Muslim as well as non-Muslim voters of various local councils in the Punjab to elect their representatives from each electoral unit. The Election Authority also gave the schedule specifying days for the various stages of the election and fixed 25th September, 1979 as the polling day for Muslim seats. It further directed that all the Returning Officers shall issue "public notice" on 4th September, 1979 in Form II inviting nomination papers as-prescribed under sub-rule
(3) of rule 12. It may be noted that no polling day for non-Muslim seats was specified in this notification. The result was that election for Muslim seats was held according to the schedule but no election for non-Muslim seats was held. Consequently, the Election Authority issued another notification on 16th September, 1979, for holding the election of non-Muslim members on 2nd October, 1979, but no schedule specifying dates for filing nomination paper and their scrutiny, etc. Were given therein as required by sub-rule (1) of rule 12. However, the Returning Officers were directed to issue 'public notice' (as required by sub-rules (3) and (4) of rule 12), but no such notice was issued by the Returning Officer of Union Council Kacha Mianwali. The result was that this time again nobody filed the nomination papers and no election was held, for the minority seat.
4. On the other hand, election to "special interest" seats, i. e. Seats reserved for peasants, workers and women, was held, on 5th December, 1979. Thereafter, election of Chairman and Vice- Chairman in this constituency was held on 14th January, 1980, persuant to Election Authority's Notification No, EAP/36/79, dated 9th January, 1980, of course, without filling in the non-Muslim" seat. It may be stated that the two contestants for the office of the Chairman polled three votes each and the tie was decided on toss in favour of respondent No, 5.
5. The appellant filed Writ Petition No, 733 of 1980 challenging the legality of election of the Chairman and Vice-Chairman of Union Council Kacha Mianwali on the grounds :
(i) that the notification dated 1st September, 1979 calling upon non-Muslim voters to elect a member of their community was not conveyed through public notice by the Returning Officer (respondent No, 2) for information of residents of locality, as enjoined by rule 12 (3) read with rule 48 of the Punjab Local Councils (Election) Rules, 1979, which is mandatory in nature and failure to comply with these provisions, resulted in deriving the minority community to elect their representative and further deprived the elected member of challenging his right of vote in the election of Chairman and Vice-Chairman of Kacha Mianwali Union Council.
(ii) that the election of Chairman and Vice-Chairman held on 14th January, 1980, in pursuance of Election Authority's notification dated 9th January, 1980, which is void ab initio because it was issued in violation of the provisions of sub-sections (2) and (3) of section 26 of Punjab Local Government Ordinance, 1979, read with rule 58 of Local Councils Election Rules, 1979, which clearly laid down that the election of Chairman and Vice-Chairman could be held only after the members belonging to "minority communities" and "special interests" have been elected and their names have been notified in the official Gazette as such.
6. It appears that only objection mentioned at (i) above was argued and the learned Single Judge while disposing it of held that issuance of notification No, E A P-8/79, dated 1st September, 1979, by the Punjab Local Councils Election Authority was duly published and according to law it was sufficient notice to the members of the minority community and that it was the appellant who did not avail the opportunity afforded for submitting his nomination papers in compliance with the notification, therefore, he was estopped by his conduct to complain of his non-participation in the elections. The learned Judge also held that the respondents (presumably the Returning Officer) could not be held to be at fault (obviously for not issuing a public notice) and dismissed the writ petition in limine. Hence this appeal.
7. Learned counsel for the appellant has reiterated before us the aforementioned two grounds which were taken up before the learned Single Judge.
8. Learned counsel appearing on behalf of respondent No, 5 (the elected Chairman) has raised a preliminary objection. According to him, the appellant had no locus standi to challenge the election of the Chairman and Vice-Chairman by invoking the writ jurisdiction of the High Court because at the time of filing the writ, the appellant was not an "elected member" of the union council, hence not an "aggrieved party" in the meaning of clause (a) of Article 9 of the Provisional Constitution Order, 1981. The contention is without force as we find that the appellant besides being a voter in the constituency had prayed for issuance of writ of "quo warranto" under clause (b) o Article 9 of the Provisional Constitution Order, 1981, which provides that a High Court on the application of "any person" can make an order requiring holder of the public office within its territorial jurisdiction to show under what authority of law he claims to hold that office. We are, therefore, quite sanguine that the appellant is not debarred from challenging the election of Chairman of his constituency by invoking the writ jurisdictions of this Court.##TE#
9. It appears that it was not brought to the notice of the learned Single Judge that as no election to minority seat was held in pursuance of notification dated 1st September, 1979, the Election Authority had issued another notification on 16th September, 1979 for holding election for this seat on 2nd October, 1979, but no election was held in Kacha Mianwali Union Council. It is not denied before us that public notice, as required by rule 12 was not issued by the Returning Officer about the holding of election to minority seat on 2nd October, 1979, either. In order to appreciate the implications of non-compliance of rule 12, its relevant portions are reproduced below :- "12. Notification for Election.- (1) For the purpose of holding election of a member to a local council, the Election Authority shall, by notification in the official Gazette, call upon the voters to elect a member or members as the case may be, from each electoral unit.
(2)
(3) A Returning Officer shall, as soon as may be, after the publication of the notification under sub- rule (1), give public notice in Form II, of the dates specified by the Election Authority in respect of the electoral units of which he is the Returning Officer and the public notice shall be affixed at some conspicuous place in his office at the office of local council concerned and at some prominent place, or places within the electoral unit to which it relates.
(4) A public notice issued under sub-rule (3) shall also invite nominations and specify the time and the place at which the nomination papers shall be received by the Returning Officer.
(5) .............
' These provisions show that for the purposes of holding election in a local council, the Election Authority is required under rule 12 to call upon the voters of an electoral unit by notification in the official Gazette to elect their representative. This notification shall contain the schedule specifying dates for filing of the nomination papers, for their scrutiny, for withdrawing the candidature and for taking of the polls. After the publication of this notification, sub-rule (3) of rule 12 requires the Returning Officer to give 'public notice' in Form II of the dates specified by the Election Authority and this notice should be affixed at conspicuous and prominent places within the electoral unit concerned. Sub-rule (4) says that through that public notice, nominations shall be invited specifying the time and place at which the nomination papers shall be received by the Returning Officer. The purpose behind issuing the public notice is that the "holding of election" and its schedule should be made widely known to the general public and specially the residents of the constituency. This is why the word "shall" has been repeatedly used in the said rule which is indicative of its mandatory nature.
10. We have examined the notification dated 16th September, 1979 issued by the Election Authority under rule 13 (1) for holding election to non-Muslim seats on 2nd October, 1979. It does not contain the schedule specifying the dates of various stages of election as required by sub-rule (2) of rule
12. It is admitted that the Returning Officer, Union Council Kacha Mianwali, did not issue a 'public notice' inviting nomination papers specifying the time, date and place at which the nomination papers were to be received. And the result was that nobody filed any nomination papers and no election was held. It happened because the Returning Officer failed to comply with the provisions of sub-rules (3) and (4) of rule 12. No doubt, the notification dated 16th September, 1979, issued by Election Authority was also defective as schedule of election in the meaning of sub-rule (2) of rule 12 was not incorporated therein, but we feel that this defect would have been cured if Returning Officer had diligently performed his part of duty cast upon him by succeeding sub-rules (3) and (4). We, therefore, hold that the learned Single Judge was not right in holding that because of the notification having been duly published by the respondents the members of the minority community of Kacha Mianwali Union Council had sufficient notice about the elections and that the , respondents were not at fault.
11. As for the second objection that the election of non-Muslim member was to precede the election for the office of Chairman and Vice-Chairman, we find that the learned Single Judge did not advert to it at all. In this regard a reference to sections 10 and 26 of the Punjab Local Government Ordinance, 1979, and rule 58 of Rules under Punjab Local Government Ordinance, 1979, can be made with advantage. Section 10 provides that there shall be at least one non-Muslim member in each local council. Section 26 besides prescribing the term of a local council, provides that first of all the election to Muslim and non-Muslim seats of a local council shall be held, and names of the elected members shall be notified in the official Gazette. After their names having been notified, they shall form the electoral college for electing members for the "special interest seats" (reserved for peasants, workers and women, as the case may be) and the names of the members so elected shall be notified. Last of all, the notified elected Muslim-members, Minority-members and Special interest-members of a local council shall form an electoral college for electing Chairman and Vice-Chairman, in a meeting of the local council convened for the purpose, on a date notified by the Election Authority.
12. In the instant case the election of Chairman/Vice-Chairman was admittedly held without first holding election to the minority seat in Kacha Mianwali Local Council in pursuance of Notification No, EAP/36/79, dated 9th January, 1980, issued by Election Authority which we hold for the above reasons as contrary to law. In result the appeal succeeds and the election of respondent No, 5 as Chairman of the said local council is set aside being illegal and without lawful authority and it is directed that fresh election to the seat should be held in accordance with law. There is however, no order as to costs.