1. JUDGMENT.
2. SALAHUDDIN AHMED, J.-In this appeal by special leave the appellant has challenged the legality of the election of respondent No. 3, Sh. Mohammad Aslam, as Chairman of a Union Committee.
3. It appears that the appellant and the said respondent were contestants for the office of the aforesaid Chairman. In the connected election proceedings the respondent was seconded by one Mohammad Hanif whose election as a Member of the said Union had been declared to be without lawful authority by the High Court on a writ petition moved by one Sheikh Qamarud Din. The High Court had also directed to hold a fresh election for electing a Member of the Union in the resultant vacancy. This order of the High Court was passed on the 17th of January 1966, and the impugned election of the Chairman took place on the next day, i.e., the 18th January 1966.
4. It has been stated that although the learned Advocate appear--ing on behalf of Sheikh Qamarud Din had sent a telegraphic communication to respondent No. 1 the Controlling Authority, intimating the aforesaid High Court's order and in spite of the fact that the said order of the High Court was brought to the notice of the Presiding Officer of the Election Proceedings through affidavits filed by the appellant and two other members of the Union Committee concerned as well as by the production of a copy of a local newspaper, the impugned election was held and respondent No. 3 was elected Chairman by a majority of one vote only. It is, therefore, contended that the election of respondent No. 3 as Chairman has been vitiated by the participation in it of the said Mohammad Hanif who had ceased to be a Member of the Union with immediate effect as a result of the High Court's order dated 17-1-1967. It has been further contended that Article 39(4) of the Basic Democracies Order, 1959, is not applicable to save the aforesaid election proceeding from the effect of the illegal participation by Muhammad Hanif.
5. On a reference to the records it is evident that the aforesaid telegram was received by the Superintendent of the Office of the Deputy Commissioner concerned at 7-45 p.m. On the 17th of January 1966. There is, however, nothing to show when the telegram was placed before respondent No. 1 or that the contents of the telegram had been communicated to the aforesaid Presiding Officer before the impugned election of the Chairman was held. In fact, there was no authoritative information about the aforesaid High Court order to enable a responsible officer like the Presiding Officer to stop the election proceedings. It is true that the appellant had informed the Presiding Officer about the said order but the said Muhammad Hanif, who was expected to know about the High Court's order, stated before the Presiding Officer that he had no knowledge of such an order.
6. In these circumstances we think the only course open to the Presiding Officer was to continue with the proceedings of the day including the election proceedings. - So far as the application of Article 39(4) of the Basic Democracies Order, 1959 is concerned, we are of opinion that it is fully applicable to the facts of the present case. Article 39(4) is as follows: "No proceedings of a local council shall be invalid by reason only of the existence of any vacancy in or any defect in the constitution of the council, or by reason only that some person, who was not entitled to do so, sat or voted or otherwise took part in its proceedings."
7. In the case of Muhammad Nawaz Khan v. Ghulam Farid and another (PLD 1963 SC 623) it has been held that the aforesaid provisions of Article 39(4) do apply to proceedings for holding election to the office of Chairman. In similar circumstances it was held that the said Article 39(4) applied and the election proceeding was not vitiated. In the case under report, the legality of an election proceeding was questioned on the ground that a person who was not qualified to be a member, participated in the proceeding.
8. It is thus evident that in the facts and circumstances of the, case, the participation of Muhammad Hanif in the election proceeding has not vitiated the election of resident No. 3. It is pertinent to note that the Provincial Election Authority, West Pakistan gave effect to the aforesaid High Court order by a Notification published in the Gazette of West Pakistan dated 27-5-1966, under Article `6 of the Basic Democracies Order, 1959.
9. The appeal is accordingly, dismissed but having regard to the facts and circumstances of the case, we make no order as to costs.