' KAMAL MUSTAFA BOKHARI, J.--This is a constitutional petition challenging proceedings under section 17 of the Punjab Local Government Ordinance, 1979 before respondent No, 1 and its order, dated 2nd October, 1983, staying publication of petitioner's name as a returned candidate.
2. The election of a member from the electoral unit No, 5 of Municipal Corporation, Multan, was held on 28th September, 1983. Eight persons in all contested it. Petitioner and respondent No, 2 secured 639 votes ach. The Returning Officer after serving them with notice drew lot on 29th September, 1983 at 4 p. m. In their presence which fell on petitioner who was declared as a returned candidate.
Respondent No, 2 filed an application under section 17 (1) of the Punjab Local Government Ordinance, 1979 before respondent No, 1 for the relief that petitioner be declared a defeated candidate in the election and respondent No, 2 be declared successful. In the alternative it was prayed that the Returning Officer be directed to recount the ballot-papers before forwarding results to the Deputy Commissioner for publication of notification of petitioner as a returned candidate. It was accompanied by an application for interim order to restrain respondents Nos. 3 and 4 from notifying the result of election. This petition moved on 1st October, 1983 was heard by the Election Authority, respondent No, 1, on 2nd October, 1983, when it was argued that one ballot- paper of respondent No, 2 was not counted on the ground that it was found lying outside the ballot-box, that ballot-boxes of petitioner and other contesting candidates were allowed to be placed in the polling booths after 9.15 a. m. And that voters were allowed to cast their votes without production of identity cards. For obtaining interim order it was contended that since respondent No, 2 and petitioner had secured equal number of votes the result of election be not notified in the interest of justice. In its order passed on 2nd October, 1983, respondent No, 1 called for a report and parawise comments from the Returning Officer and Presiding Officers of two polling stations (out of three) and directed the case to be relisted on 12th October, 1983. It was directed that result of election shall not be notified subject to notice to the petitioner. After receipt of the aforementioned reports respondent No, 1 came to the conclusion that in view of contradictory reports the matter called for an inquiry. Notice was, therefore, issued to the petitioner who was directed to file written statement by 19th October, 1983 and respondent No, 2 was ordered to file replication by 25th October, 1983. On 27th October, 1983, respondent No, 2 urged before respondent No, 1 that two votes were manipulated for petitioner upon which respondent No, 1 arrived at the conclusion that the matter required consideration and inquiry and requisitioned complete record of the election from the Returning Officer. The prayer of petitioner's counsel to vacate the interim order staying publication of notification to enable petitioner to participate in the election to special interest seats provisionally was refused for the reason that lead of petitioner was by draw of lot only. The case was adjourned to 2nd November, 1983 with direction to the parties to file documents by 1st November, 1983 and to procure attendance of witnesses on their own responsibility. On 2nd November, 1983, the case was adjourned because the Chairman of respondent No, 1 was on leave.
As petitioner intended to contest election of Chairman of the Municipal Corporation which was scheduled to be held on 8th November, 1983 he filed this writ petition inter alia on the ground that under section 17 (2) of Punjab Local Government Ordinance, 1979 the Election Authority had no jurisdiction to entertain and enquire into a petition in which Election Tribunal had the power to decide and that the proceedings before respondent No, 1 were discriminatory because in no other case respondent No, 1 had interfered in a matter requiring detailed inquiry which was the primary function of an Election Tribunal after the election was over.
3. On behalf of the petitioner and respondents Nos. 1 and 2 lengthy arguments have been addressed on the question of jurisdiction of respondent No, 1 to entertain and enquire into the matters relating to election falling within powers of Election Tribunal and to pass an order of restraint depriving an elected member to function pending decision of that application. In substance the contention of petitioner is that after the election is over and before the notification of returned candidate is published the Election Authority has no jurisdiction to enquire into a matter where controversial questions of fact are involved and finding is necessary to resolve it which falls within the jurisdiction of an Election Tribunal. It has also been contended that respondent No, 1 has assumed jurisdiction in discrimination of other cases because record shows that more than 200 petitions were filed before it but all were not kept for inquiry and only few were entertained and those also were such which related to cases where election had not concluded and results were declared in violation of Rule 28 of Election Rules or which did not require inquiry because facts therein were established. It was also contended that assuming jurisdiction is available upto notification respondent No, 1 was then bound to enquire into all applications and could not make selection also because statute does not contemplate two forums in election petition. On behalf of respondent No, 2 it was inter alia contended that process of election includes all proceedings from the stage constituency is called upon until it ends and notification is published and that the Election Authority is to see that elections are held honestly, justly and fairly as provided under section 17 (1) of the Punjab Local Government Ordinance, 1979. Learned Assistant Advocate-General representing respondent No, 1 contended that the application of respondent No, 2 before the Election Authority was maintainable and question of jurisdiction of respondent No, 1 having been raised before it this writ petition is premature. The objection of petitioner inter alia about the competency of application of respondent No, 2 on the grounds falling within jurisdiction of Election Tribunal and scope of inquiry under section 17 of the Punjab Local Government Ordinance, 1979 after the election is over are sub judice before the Election Authority. In the circumstances of the case we do not consider it proper to express our views at this stage. The prayer of petitioner to declare proceedings before the Election Authority to be without lawful authority is rejected.
4. Against the order staying publication of notification learned counsel for petitioner contended that even if respondent No, 1 is found competent to hold inquiry upto the issue of notification the stay order could not be issued because people cannot be disfranchised. It was further contended that Article 4 of the Constitution being still in force all citizens are to be treated alike but the respondent No, 1 had although interfered in nine cases only in which facts were established yet it made an exception in the case of petitioner alone to do so for resolving disputed questions of facts.
It was also urged that petitioner had a prima facie case and no irreparable loss will occur to respondent No, 2 till such time as he is declared as successful candidate and balance of convenience leans in favour of petitioner. It was submitted that irreparable loss to be taken into consideration should be of the council and not of the defeated candidate. Learned counsel also contended that the Election Authority being a judicial Tribunal could not act arbitrarily without giving reasons and the operative part of the impugned order of stay does not show that it was issued on consideration of principles for grant of temporary injunction and that the same was issued in colourable exercise of discretion. Reliance was placed on Rameshwar Das v. Yakin-ud-Din Khan and another (1), Shamsuddin Ahmed v. Charu Chandra Biswas and others (2) and Abdul Waheed and another v. Din Muhammad and others (3) in which it was held that pending final decision of the controversy an elected member be not restrained from functioning. The learned counsel for respondent No, 2 submitted that principles for grant of stay in election matters were enunciated in MOW Muhammad Yaqoob v. Chairman, Election Tribunal, N.-W. F. P. And others (4) and that the power to grant temporary injunction being discretionary it should not be interfered with. Learned Assistant Advocate-General additionally contended on behalf of respondent No, 1 that the tenor of impugned order shows that stay order was issued on consideration that respondent No, 2 had a prima facie case.
5. On the arguments addressed by the learned counsel for respondent No, 2 in the preliminary hearing on 2nd October,1983 the Election Authority got the impression that respondent No, 2 had a prima facie case. The general principles for grant of interim injunction were not adverted to.
Respondent No, 2 was a defeated candidate and had sought the interim order for restraining petitioner to function as an elected member. Mere fact that application of respondent No, 2 was likely to succeed was not enough to pass the impugned interim order. Respondent No, 1 is a judicial Tribunal. It was required to take into consideration irreparable loss of the council and balance of convenience. The application before the respondent No, I was not a public matter but only a private personal affairs of respondent No,
2. After the election had been conducted petitioner was declared as a successful candidate who had the right to function as such. The impugned order deprived the constituency of petitioner to be represented. Nobody from the constituency represented in the election of special interest seats. This caused irreparable loss to the council and served the private interest of respondent No,
2. The petitioner having been declared as returned candidate balance of convenience was in his favour. The elected office holders are not to be restrained from performing their functions before final judgment and no case was made out for an exception to this general rule. The facts before the respondent No, 1 were disputed and respondent No, 1 was holding elaborate inquiry into it. Therefore, we hold that respondent No, 1 passed the impugned order, dated 2nd October, 1983, without lawful authority. The petition is accepted to this extent. The parties are left to bear their own costs.
(1) AIR 1924 Lah. 633 (2) AIR 1934 Cal. 621
(3) PLD 1982 Lab. 168 (4)P1.JD 1976 SC 625