1. ' SARDAR MUHAMMAD ASHRAF KHAN, J.-This order shall cover all the writ petitions entitled above as they are being disposed of on a common question of law involved in them.
2. ' The facts relevant for the disposal of the above writ petitions may be briefly stated as follows: - ' The petitioners in each of the above writ petitions contested election for membership of Local Council in Azad Jammu and Kashmir held on 27-10-1983.
3. ' Raja Muhammad Nazir Khan, petitioner in Writ Petition No, 36 of 1983 contested the election for the membership of the District Council Muzaffarabad from Ward No, 6 of Union Council Hattian 'Dopatta and was declared elected by the Returning Officer vide return statement in Form XIX, made under rule 44 of the Azad Jammu and Kashmir Local Government Election Rules, 1983, a copy of which is Annexure 'B'. He was also shown as an elected member of the District Council Muzaffarabad from the Union Council concerned in a Notification dated 30-10-1983, issued under section 26 of the Azad Jammu and Kashmir Local Government Ordinance, 1983 (hereinafter referred to as Local Government Ordinance (Copy Annexure 'C'). After his having been declared as an elected member of the District Council, Muzaffarabad, the Election Commissioner vide his order dated 3-11-1983, copy of which is Annexure 'E', directed the holding of fresh poll at the Polling Station Awanpatti Sharqi of Ward No, 6, Union Council Hattian Dopatta, on the report of the Presiding Officer to the effect that the polling at the aforesaid polling station had to be stopped by the Presiding Officer for the reasons beyond his control as it was interrupted by some of the contesting candidates and their supporters. Munshi Said Akbar, petitioner in Writ Petition No, 37 of 1983 also contested election for the membership of the District Council, Muzaffarabad from Union Council Jhandgran and was declared as elected by the Returning Officer concerned under rule 44 of the Local Government Election Rules and his name was also notified as an elected member of the District Council, Muzaffarabad in a Notification issued by the Collector, Muzaffarabad, copy of which is Annexure 'A'. The Election Commissioner acting on the report of the Presiding Officer and Returning Officer, also ordered fresh polling at the Polling Station, sthandgran, Ward No, 3 on the ground that due to the quarrel ensuing between the party men of contesting candidates, the polling at the said polling station was stopped by the Presiding Officer vide his order dated 3-11- 1983 (copy Annexure 13'). Muhammad Ilyas Khan, petitioner in Writ Petition No, 38 of 1983 was also declared as an elected member of the District Council from Union Council. Langerpurra, in Local Council Election held on 27-10-1983 by the Returning Officer in terms of rule 44 of the Local Government Election Rules and his name was also included among the elected Members of the District Council in a Notification issued by the Collector Muzaffarabad, copy of which is Annexure 'A'.
4. But again the Election Commissioner made an order on 3-11-1983, copy of which is appended as Annexure 'B' with the writ petition, for holding fresh election at Polling Station Gori, Ward No, 11 of Union Council Langerpurra, as he came to the conclusion from the report of the Returning Officer to due the continuous disturbance at the said polling station, only 12 votes out of 470 votes could be cast at it.
5. ' Syed Tassadaq Hussain Shah, petitioner in Writ Petition No, 39 was also a contesting candidate for the membership of the District Council Muzaffarabad from Union Council Panjkote in a Local Bodies Election held on 27-10-1983 and was declared as elected by the Returning Officer and also later on shown as such in a Notification issued by the Collector Muzaffarabad on 30-10-1983, copy of which is Annexure 'A' with the writ petition. In his case, the Election Commissioner also made an order on 3-11-1983, copy of which is Annexure 'B' with the writ petition, by which he directed fresh polling at the Polling Station Chohan Ban of Union Council Panjkote on the ground that due to the disturbance created by some of the contesting candidates, the polling at the said polling station had to be stopped with the result that only 166 votes out of 655 votes were cast at it.
6. ' Muhammad Nazir Khan, petitioner in Writ Petition No, 41 of 1983, after having contested election for the membership of Union. Council. Langerpurra from its Ward No, 11 was declared as elected by the Returning Officer concerned and his name was also notified as such in the Notification dated 30- 10-1983 issued by the Collector, Muzaffarabad, copy of which is Annexure 'A' with the writ petition.
7. Here also the Election Commissioner, on the report of the Returning Officer to the effect that due to the obstructions and interruptions during the polling, only 12' voters could cast their votes out of 470 votes at Polling Station Gori, Ward No, 11 of Union Council Langerpurra, directed fresh polling at the aforesaid Ward vide his order dated 3-11-1983, copy of which is attached as Annexure 'C' with the writ petition.
8. ' Abdul Ghani, petitioner in Writ Petition No, 42 of 1983 was declared elected as a member of the District Council, Poonch from Kala Moola Union Council by the Returning Officer vide return statement in Form XIX dated 29-10-1983, copy of which is Annexure 'A' with the writ petition. But on the report of the Returning Officer that the polling at the Polling Station Kala Moola Shamali Ward No, 2 had to be stopped by the Presiding Officer concerned because ,1 the disturbance created by the public there and snatching away the ballot-box from the staff deputed at the polling station, the Election Commissioner directed fresh polling at the said polling station vide his order dated 5- 11-1983, copy of which is appended as Annexure 'B' with the writ petition.
9. ' The validity of the orders of the Election Commissioner referred to above by which he had directed fresh polling at the polling stations mentioned therein, have been challenged by the petitioners in the above ,writ petitions mainly on the ground that the same have been passed incompetently and without lawful authority. Each of the above writ petition has been contested by the respective respondents therein by filing written statements in which it is contended that the Election Commissioner enjoyed the power to direct fresh ;poll at all or any one of the polling stations of a local council on the report of the Returning Officer concerned that the polling on any such polling station was stopped by the Presiding Officer due to the reasons beyond his control and enumerated in rule 29 of the Local Government Election Rules and thus by passing the order impugned in the writ petition he has committed no- illegality.
10. ' We have heard the learned counsel for the parties in all the above writ petitions and have also gone through the relevant record, law and rules applicable in the cases. The learned counsel for the petitioners in all the above writ petitions have adopted common arguments to assail the impugned orders of the Election Commissioner which are to the following effect :-
(1) That the Election Commissioner has no authority to direct fresh poll at any polling station of the Local Council after the completion of the election process and the declaration of a contesting candidate as elected as Member of such Local Council and since the petitioner in each of the above writ petitions was declared as elected as a Member of the Local Council concerned by the Returning Officer in terms of rule 44 of the Local Government Election Rules and was also shown as such in the Notification issued by the Collector containing the names of the elected Members of the concerned local council, the impugned order of the Election Commissioner directing fresh poll at one of the polling station of such local council was unlawful and void.
(2) That the valuable right had accrued to each of the petitioner in the above writ petitions after his having been declared as elected as Member of the Local Council by the Returning Officer concerned trod thus the Election Commissioner could not deprived him of the same by directing fresh poll at one of, the polling stations of such Local Council as such an order amounted to undoing of his membership of the Local Council.
(3) That the impugned orders offends against the principle of natural justice embodied in the maxim "audi alteram partem" as the same had been passed without affording opportunities of showing cause against them to the petitioners.
11. ' The learned counsel for the respondents have defended the orders impugned in the above writ petitions on the ground that the Election Commissioner is fully competent to direct fresh poll at any of the polling stations of the Local Council by virtue of the powers conferred on him by rule 30 (2) of the Local Government election Rules on the report of the Returning Officer that the polling at any such polling station had to be stopped by its Presiding Officer under rule 29 of the said Rules due to the interruptions made and illegal acts committed by the Public at it during the course of polling and as the report was made by the Returning Officer concerned to the Election Commissioner that the. Polling at one of the polling stations of Local Council for the membership of which the petitioners concerned had sought election was stopped by its Presiding Officer for the lawful causes. The Election Commissioner acted perfectly in accordance with the law by directing fresh polling at the polling station on which the polling had to be stopped by: the Presiding Officer. It was further contended that the petitioners in the above writ petitions had got themselves elected in the Local Council's Election by foul and unfair means by causing obstructions and committing unlawful acts during the polling at certain polling stations of the *Local Councils for which reason the Presiding Officers of such polling stations were compelled to stop the polling and therefore, the discretionary powers in the writ jurisdiction should not be exercised to give them the relief sought for in the above writ petitions as it is well-settled law that the writ jurisdiction should not be invoked to enable the petitioner to retain the ill-gotten gains or in aid of injustice.
12. ' After giving our due consideration to the arguments addressed at the bar, we find that the contention of the learned counsel for the petitioners in the above writ petitions that the Election Commissioner was not empowered to make the impugned orders, after the petitioner had been declared as elected Members of the Local Council by the Returning Officers, has much substance in it. There is no doubt that the Election Commissioner has been given powers to direct fresh polls at any polling station of the Ward of a Local Council under rule 30 (2) of the Local Government Election Rules, 1983 but the question that falls for determination in these writ petitions is as to at which stage of the election process the same can be exercised by him. Before proceeding to answer the above question, it appears necessary, for the sake of reference, to reproduce the relevant provision of the aforesaid Rule which confer powers upon the Election Commissioner to direct fresh polls at any of the polling stations of the Ward of Local Council and which reads as follows "30 (2) Where a poll has been stopped under sub-rule (1), the Returning Officer shall immediately report the circumstances to the Election Commissioner/Authority and the Election Commissioner/ Authority shall direct a fresh poll at that polling station, unless it is satisfied that the result of the Election has been determined by the polling that has already taken place at that polling station, taken with the result of the polling at other polling stations in the same ward."
13. From the bare reading of the provisions of the Rule reproduced above, it become quite clear that the Election Commissioner is only empowered to direct fresh polling at the polling station of. a Ward of the Local Council where the polling was stopped by the concerned Presiding Officer under rule 30 (1) of the Local Government Election Rules when he is satisfied that the result of such Ward has not been declared on the basis of the counting of votes cast at all the polling stations provided in it ,including the one at which the polling was stopped. In other words, the "A Election Commissioner can only exercise his powers of directing fresh' polls at any polling station of the Ward of Local Council at which the polling Was stopped by its Presiding Officer before, the results of the election of such Ward are declared by the Returning Officer of that Ward under rule 44 of the Local Government Election Rules and that he ceases to enjoy such powers once the results of polling are declared by the authority competent to do so.
14. ' Our above view also receives full support from certain other provisions contained in both the Local Government Ordinance as well as the Local Government Election Rules. Section 3 of the Local Government Ordinance, 1983 under which the office of the Election Commissioner has been created reads as under :- "3 (1) The Government may appoint an Election Commissioner, who shall be responsible for the organization, conduct and supervision of election to the Local Government institutions and matters connected therewith."
15. ' Similarly rule 4 of the Local Government Election Rules which contemplate the creation of Organization for the conduct of elections to the Local Government Institution is to the following effect :- "4 (1) Government may appoint an Election Commissioner/Authority who shall be responsible for the. Organization, conduct and supervision of elections to Local Council in the Azad Jammu & Kashmir Territory. In the performance of his functions under these rules the Election Commissioner/Authority may be assisted by such number of officers as may be appointed by the Government from time to time."
16. The reading of the above provisions of Law and Rules would show that the functions of the Election Commissioner are confined to organizing, conducting and supervising the Elections of Local Council in the Azad Jammu & Kashmir and nothing more which come to an end as soon as the elections are held and their results are declared. Thus the Election Commissioner only remains in picture and enjoys the powers conferred on him so long B as the results of the elicekih of Local Council are not declared by the authority competent to do so under the Local Government Election Rules and on the declaration of the same he stands removed from the scene and goes into the background and cannot make any order effecting the results of any such Local Council. Similarly rule 6 of the Local Government Election Rules also throws much light on the point at issue in these cases i. e. The stage in the election proceeding up to which the Election Commissioner can press into service powers given to him uncle' the said Rules. Under sub-rule (I) of the above Rule, the Election Commissioner shall frame a general programme for election to the Local Council in the Azad Jammu and Kashmir territory while under its sub-rule (2) subject to the general programme framed under sub-rule (1), the Collector shall with the approval of the Election Commissioner frame a programme for election of every Local Council. Under sub-rule (3) of the above Rule the election programme made under sub-rule (2) concludes with the declaration of results of the election of Local Council. The above provisions, in other words, mean that the election process is completed and nothing further remains to be done after the declaration of the results of the election of Local C Council by the Returning Officer concerned as such the Election Commissioner is not authorised to make any order affecting the results of such election after the decimation of the results.
17. There are yet other provisions contained in rule 56 =of the Local Government Election Rules which go a long way to support the legal position that the Election Commissioner's power to direct fresh polls at a polling station under rule 30 (2) comes to an end, the movement the results of election of the Wards of a Local Council in which such polling station is included are declared by the authority empowered to do so. The relevant provisions of the above Rules are reproduced below :- "56 (1) No election shall be called in question except by an election petition presented in accordance with these rules.
(2) An election petition shall be presented within thirty days next after the declaration of result under rule 44."
18. The combined effect of the provisions of the Rules reproduced above is that after the declaration of result of election of membership to a Local Council by the Returning Officer under rule 44 of the Local Government Election Rules, the only remedy available to the persons aggrieved by such result is that he can challenge the same by way of presenting election petition against it before the Election Tribunal appointed by the Government under rule 59 (9) of the said Rules within thirty days from the date of its declaration. In other word, a candidate declared to have been elected as Member of the Local Council by the Returning Officer of the Ward concerned cannot be unseated by the order of any Court or Authority except that of the Election Tribunal made in the election petition filed by a contesting candidate or electoral aggrieved by his such election as Member of the Local Council. Thus, we fail to see how the Election Commissioner can pass any order directing fresh poll at one or more polling stations provided for any Ward of Local Council whose results have already been declared by the Returning Officer concerned because any such order shall have the effect of disturbing and upsetting the result of election which power fails exclusively within the province of the authority of the Election Tribunal as indicated above. Moreover, the fact that the period of limitation for presenting election petition to the Election Tribunal starts from the date of the declaration of the result of the election by the Returning Officer is clearly indicative of the legal position that on the declaration of the result by the Returning Officer of the concerned ward of the Local Council, the Election Commissioner ceases to enjoy any power of making order under rule 30(2) of the Local Government Election Rules.
19. The net result of the above discussion is that the Election Commissioner has the authority to order fresh polling at any one or more polling stations of a Ward of the Local Council under rule 30 (2) of the Local Government Election Rules, if the results of election of such Ward have not been declared by the concerned Returning Officer under rule 44 of the said Rules and does not possess such power after the declaration of such results. When the cases of the present petitioners in the above writ petitions are viewed in the light of the above legal position then there remains no alternative but to hold that the orders of the Election Commissioner impugned in these writ petitions, have been the without jurisdiction and lawful authority. It is undisputed that the petitioners in each of the above writ petitions had been declared as a Member from the concerned Wards of the Local Council by the Returning Officer at the time to passing the impugned order therein by the Election Commissioner and therefore, by passing the same, the Election Commissioner has travelled beyond his jurisdiction and exceeded his powers conferred upon him under rule 30(2) of the Local Government Election Rules.
20. For the reasons stated above, we declare the orders of the Election Commissioner impugned in the above writ petitions to have been passed without lawful authority and to be of no legal effect and consequently the same are hereby quashed. The petitioners shall be deemed to have been duly elected as Members of the Local Council from their respective Wards.