' KHIZAR HAYAT, J.--Through this writ petition, Allah Dad has challenged the order of the Punjab Local Councils Elections Authority dated 21-11-1981 whereby his election as Chairman of Union Council Ihsanpur, Tehsil Kot Adu, District Muzaffargarh, held on 23-8-1980 was declared null and void and it was further directed that election to the office of the Chairman and Vice-Chairman be held afresh.
2. The facts giving rise to this writ petition are that elections to the Muslim seats of Union Council Ihsanpur were held on 25-9-1979. The election of Chairman in pursuance of the schedule notified on 16-8-1980 by the Election Authority was held on 23-8-1980 and Allah Dad, petitioner, was declared elected as having secured 7 votes as against 6 votes polled by his rival candidate, namely, Abdul Rahim. The Deputy Commissioner, Muzaffargarh, also notified his name as Chairman of Ihsanpur Union Council.
3. About two weeks later, as per instructions of the Election Authority, "special interest" seat's election was held on 7-9-1980. Mazhar Hussain, respondent No.4, contested for present seat and was declared successful. Mazhar Hussain respondent No.2 the elected peasant member and Abdur Rahim (respondent No.3) the defeated candidate for 'Chairmanship' challenged the election of Allah Dad (petitioner) as Chairman, before the Punjab Local Councils Election Authority through separate petitions on the common ground that the election of the petitioner as 'Chairman' was illegal because it had been held without first holding the election to the special interest seat as required by section 26 of the Punjab Local Government Ordinance, 1979, and rule 58 of the Punjab Local Councils (Election) Rules, 1979. Abdur Rahim aforementioned withdrew his petition but Mazhar Hussain pursued his cause. His petition was admitted for hearing on 30-8-1980 by the Election Authority, and simultaneously a. direction was issued to the effect that election of Chairman and Vice-Chairman held on 23-8-1980 "shall not be notified meanwhile". Despite this direction, the name of the petitioner was published in the Gazette Notifiation dated 21-10-1981. The petitioner, however, appeared before the Election Authority and resisted the petition. The Election Authority ultimately accepted the petition of Mazhar Hussain and passed the impugned order declaring the election of the petitioner as null and void and directed to hold fresh election.
4. Learned counsel for the petitioner has assailed the judgment of the Election Authority before us on numerous grounds, which shall be dealt with seriatim hereunder.
5. He argued first, that since Mazhar Hussain (respondent No.2) was not a candidate or a contestant for the office of the Chairman on 23-8-1980, therefore, he was not an aggrieved person and as such he had no locus standi to challenge the election in view of section 24 of the Ordinance; and in case, it was held that he (Mazhar Hussain) had a locus standi then the only course open for the respondent was to file an election petition before the Election Tribunal because his grievance related to an "election matter" and the Election Authority had no jurisdiction to inquire into and pass any order relating thereto, as has been laid down in section 17 (2) of the Ordiance, which reads as under:-- "17(2). Nothing contained in subsection (1) shall be construed to mean that the Election Authority has power to enquire into any matter or pass any order in respect of anything relating to an election which can be called in question before an Election Tribunal by an election petition under this Ordinance."
' The argument is misconceived. There is no doubt that a person who can under the law file an election petition is debarred from approaching the Election Authority to seek his remedy pertaining to election matters but a person who cannot under the law challenge the "election" through an election petition can by all means approach the Election Authority to get the wrong committed in the elections rectified. Section 17(1) of the Ordinance is a complete answer to the proposition which is reproduced below:-- "17(1). The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the rules, and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules."
' This section gives unlimited and unfettered powers to the Election Authority to pass a remedial order where in its opinion the elections were not conducted "in accordance with the provisions of the Ordinance and Rules".
6. A similar question had arisen for determination earlier in a case reported as James Ilyas Masih v.
Punjab Local Councils Election Authority etc. 1984 CLC 237. The view taken in the aforesaid case was not disapproved when James Ilyas Masih had approached the Supreme Court with a petition praying for special leave to appeal against the order passed by the High Court and their Lordships in the Supreme Court were pleased to dismiss the petition.
7. The facts of the case were that one Rafiq Paul was the rival candidate of James Ilyas Masih in election for a non-Muslim seat in Zila Council. His nomination papers were rejected. He succeeded in appeal before the Deputy Commissioner, but the Returning Officer again did not include his name in the list of candidates. Rafiq Paul then preferred a petition under section 17 (1) of the Ordinance on which the Election Authority directed the Returning Officer to consider Rafiq Paul as validly nominated candidate and allot him a symbol for election. The Returning Officer again refused to comply with the order, saying that James Ilyas Masih had already been elected as unopposed. Being aggrieved, Rafiq Paul repeated the petition under section 17(1) of the Ordinance before the Election Authority which was allowed and the election of James Ilyas Masih was set aside and also a direction was issued to hold fresh election. Against this order of the Election Authority, a writ petition was filed in the High Court. During the arguments it was urged that since Rafiq Paul's grievance pertained to election, he could move an election petition under section 24 of the Ordinance before the Election Tribunal rather than to approach the Election Authority because section 17 (2) has ousted the jurisdiction of the Election Authority to inquire into or pass any order relating to an election which can be called in question by way of an election petition under Ordinance VI of 1979. Their Lordships in that case held that had Rafiq Paul preferred an election petition before the election Tribunal that would have been considered premature and, therefore, his petition under section 17(1) before the Election Authority was held to be competent.
8. Respectfully following the aforesaid view, we are of the opinion that since Mazhar Hussain could not under the law file an election petition before the Election Tribunal, his petition under section 17(1) of the Ordinance before the Election Authority was competent and prefectly in order.
9. The main question for determination in this petition is whether the election of the petitioner as Chairman of Ihsanpur Union Council, held, on 23-8-1980, was held in accordace with the provision of the Ordinance. To find an answer to this question a reference to subsection (3) of section 26 of Ordinance VI of 1979 and sub-rule (1) of rule 58 of the Punjab Local Councils (Election) Rules, 1979, is essential, which are reproduced below:-- "26(3). After the elections of members to fill seats reserved in a local council for peasants, workers and women, as the case may be, has been held and the names of the elected members notified, there shall be held an election of the Chairman and Vice-Chairman of the local council."
"Rule 58. Notice for the election of Chairman and Vice-Chairman of local council except Tehsil Councils. (1) As soon as may be, after the issue of notification of names of members of local councils including members belonging to minority communities and special interests, the Election Authority shall by notification appoint a date for a meeting of the members of each local council to elect the chairman and vice-chairman."
' A plain reading of the aforesaid provisions would show that first the election of members of the union council including members for the special interest seats would be held; their names would be notified and subsequent thereto the Election Authority would fix a date for a meeting of the members of the local council to elect a Chairman and Vice-Chairman.
10. In the present case, admittedly the elections to the office of the Chairman and Vice-Chairman were held before the special interest seats were filled in through election. Therefore, the election of the petitioner, as Chairman held on 23-8-1980, under no circumstance can be considered to have been held "in accordance with the provisions of the Ordinance and the Rules".
11. In this view of the matter, the Election Authority exercising powers under the provisions of section 17 (1) of the Ordinance had rightly declared the election of Chairman of the Union Council Ihsanpur, Tahsil Kot Adu, District Muzaffargarh, as null and void and directed to hold fresh election.
12. Learned counsel also contended that the name of the petitioner was notified as Chairmn of Ihsanpur Union Council by the Deputy Commissioner on 24-8-1980 which was further notified in the Gazette published on 21-10-1981 and, therefore, the Election Authority could not under the law have deseated the petitioner. We find that the Gazette, notification was published on 21-10-1981 in disregard to the direction given by the Election Authority on 30-8-1980 prohibiting the publication of the result of election held on 23-8-1980 in the notification till decision of the petition filed by Mazhar Hussain (respondent No.2). During the subsistence of the aforementioned stay order any subsequent notification would be a nullity in the eye of law and as such had no legal force.
Therefore, it could not stand in the way of the Authority to pass an appropriate and legal order as had been done in the case in hand.
13. It was next argued that subsection (3-A) of section 26 of the Ordinance provided a cover to the election of the Chairman held on 23-8-1980 because it lays down that the election of the Chairman and Vice-Chairman of a local council, during the period certain seats of th local council were lying vacant, shall be valid. We think the learned counsel has not drawn correct inference from the language used in subsection (3-A) of section 26 of the Ordinance. The same is reproduced below for its better appreciation:-- "26(3-A). Nothing contained in subsections (2) and (3) shall be deemed to prevent the holding of the election of the Chairman and Vice-Chairman of a local council if, as a result of an order of a Court of competent jurisdiction, any of the seats of the local council remains vacant or an elected member of the local council is restrained from participating in the proceedings for the election of the Chairman and Vice-Chairman".
'The import of this section is that election of Chairman held during some of the seats of local council lying vacant, could only be saved if such seats had remained vacant on account of an order restraining toG hold the election for those seats had been passed by a Court. This is not the position in the instant case as no such stay order by a Court as contemplated by the aforementioned provision of law existed on 23-8-1980 when the election to the office of the Chairman of Union Council Ihsanpur were held.
14. Lastly, it was argued that the order of the Election Authority was mala fide inasmuch as the application submitted by the petitioner on 4-11-1981 to respondent No. 1 for placing copy of Punjab Gazette Notification dated 21-10-1981, wherein notification dated 24-8-1980 issued by the Deputy Commissioner, Muzaffargarh, declaring the petitioner as elected Chairman of Union Council Ihsanpur was published, was not considered and although the aforementioned application was fixed for hearing on 22-11-1981, notices were issued to the parties on 14-11-1981 indicating them 21st November as the date fixed for announcing the judgment. The petitioner has neither placed a copy of the aforementioned application on the record nor he has filed copy of the order passed by respondent No.1 on the said application. It is, therefore, difficult to say whether respondent No.1 had taken notice of the petitioner's application and had set it down for hearing as contended by the petitioner. We are unable to accept the petitioner's contention that respondent No.1 had already made up its mind to unseat him simply because his application referred to above was not disposed of before finally deciding the petition filed by respondent No.2. We have examined the effect of the publication of the notification declaring the petitioner as elected Chairman published in the official Gazette on 21-10-1981 and have found that the jurisdiction of respondent No. 1 was not effected by the publication as it was published in violation of order dated 30-8-1980 passed by respondent No.
1. We, therefore, do not think that the petitioner was prejudiced in any manner on account of alleged omission on the part of respondent No.1 to dispose of his application or respondent No.1 had acted in a mala fide manner while making the impugned order.
15. For what has been stated above, we find the impugned order is not open to any exception and consequently the writ petition fails.
Writ refused.