' TANZIL-UR-REHMAN, J.--By this Constitutional petition under Article 199 of the Constitution of Ismalic Republic of Pakistan, 1973, read with Article 9 of the Provisional Constitution Order, 1981, the petitioner seeks to challenge the validity of an undated review order, passed by the Commissioner/ Appellate Authority, Hyderabad, praying that the same should be set aside declaring the said review order a passed without lawful authority and that the nomination of respondent No. 3 be rejected.
' The facts giving rise to this petition are as under:-
1. Section 37(1) of the Sind Local Government Ordinance, 197 (hereinafter referred to as the Ordinance) as amended by Sind Local Government (Second Amendment) Ordinance, 1983, provided that a person shall be qualified to be elected as and to be a member if, inter alia, he has attained the age of 25 years.
2. The respondent No. 3 filed his nomination paper from HMC-52 City Hyderabad, as a candidate for local bodies election stating inter alia to have attained the age of 25 years.
3. The petitioner took an objection under rule 17 of the Sind Local Councils (Election) Rules, 1979 (hereinafter referred to as the Rules as amended by Notification, dated 15-8-1983 that the respondent No. did not attain the requisite age of 25 years on the day of the filing o the nomination paper or the day of its scrutiny. The Returning Office overruled the objection holding that respondent No. 3 will be more than 25 years of age at the time of election and at the time of becoming the member. The date of birth of respondent No. 3 as per secondary school certificate was shown as 27-9-1958.
4. The petitioner filed an appeal under rule 19(5) of the Rules a amended by Notification, dated 15- 8-1983, to the Commissioner, Hyderabad Division, who after hearing the petitioner and the Advocate for respondent No. 3 accepted the appeal. Accordingly, the order o the Returning Officer, dated 26-8-1983 accepting the nomination paper of respondent No. 3 was set aside.
5. It appears that some later development took place and the Commissioner, Hyderabad Division, passed an undated order on some review application moved by respondent No. 3 to him, whereby after reviewing his earlier order passed in appeal directed the Returning Officer that the nomination paper of respondent No. 3 be accepted an his name be included in the final list of candidates for Hyderabad Municipal Corporation. This order was passed without notice to the petitioner, even without impleading him as a party to the revised application.
6. The petitioner came to know of it on 15-9-1983 at the time o allotting symbols to the candidates.
He immediately filed an application for the supply of certified copy of the said review order to the Commissioner, Hyderabad Division but the same was not supplied t him. He, however, confirmed from the Returning Officer and, in fact saw with his own eyes that the Order No. N/25/LBS (Misc), 1983 wa passed by respondent No. 1 on 14-9-1983 reviewing his earlier order dated 31-8-1983, which, however, was not signed by respondent No 1.
7. The petitioner thereupon filed this petition for the relief as stated above.
8. We have heard the petitioner in person, Mr. Shaukat Ali Behlam, Advocate for respondent No 3 and Mr. Riaz Ahmed, Advocate, for respondents Nos. 1 and 2.
9. At the very outset, we called upon the learned counsel for the respondents to show us the provision of law under which respondent No. 1 (the Commissioner) could review his order, dated 31- 8-1983. They referred to us rules 3 and 7 of the Rules which read as under:- "RULE 3. Powers and Functions of Election Authority:- The Election Authority shall exercise powers and performs its functions in accordance with the Ordinance and the rules including the Power to review an order passed by any officer and make such consequential orders as it may consider appropriate for ensuring fair elections.
' RULE 7. Assistance to the Election Authority.-- (1) The Election Authority may require any person or authority to perform such functions or render such assistance in connection with an election as it may direct.
(2) All executive authorities in the province shall render such assistance to the Election Authority in the discharge of its functions as may be required of them."
' Rule 3 gives power to the Election Authority to review an order passed by any officer and make such consequentional orders as it may consider appropriate for ensuring fair election. Under rule 7, the Election Authority may require any person or authority to perform such functions or render such assistance in connection with the election as it may direct. We pointed out to the learned counsel for the respondents that no power of review has been given to respondent No. 1 under rule 3 or 7 of the Rules, 1979 to review his own order. The learned counsel for the respondents, then, took refuge under section 39(3) of the Ordinance, which reads as under:- ' Section 39(3). The Election Authority and the person or authority referred to in subsection (2) shall have all the powers of a civil Court under the code of Civil Procedure, 1908 (Act V of 1908) and shall be deemed to be such Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
' Relying on subsection (3) of section 39 of the Ordinance quoted above, the learned counsel for the respondents contended that respondent No. 1 as a civil Court could exercise the power of review under Order XLVII, C.P.C. The contention appears to be misconceived inasmuch as the provision of section 39(3) refer to the Election Authority and the person or authority to whom the election petition is referred to under subsection (2) of section 39. The provisions of Order XLVII, which deal with review by the Courts governed by the Code of Civil Procedure are not, strictly speaking, available to respondent No. 1 for exercising power of review. Power of review is a judicial power which cannot be deemed to be vested in the respondent No. 1 unless it is so expressly conferred by the Statute. In any case, the condition laid down under Order XLVII, C.P.C. for exercising the power of review were not fulfilled inasmuch as there was no discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of respondent No. 1 or could not be produced by him at the time when the order, dated 31-8-1983 was made or there was some mistake or error apparent on the face of the record or there was any other fresh reason for obtaining the review of the order made against respondent No. 3 as provided under Order XLVII, rule 1, C.P.C. Furthermore, rule 4(2) of the same Order provides that no such application shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the order the review of which has been applied for. Admittedly, the petitioner was not given any opportunity of being heard while passing the impugned order by respondent No. 1,accepting the review application. It is also apparent on record that he was not even impleaded as a party to the review application moved by respondent No.
3. So the order passed on review is without jurisdiction.
10. Mr. Riaz Ahmed, Advocate appearing for respondent Nos. 1 and 2 contended that the petition was not maintainable as the petitioner was not an aggrieved party so as to attract the jurisdiction of this Court under Article 9 of the P.C.O., 1981. In support of his above contention he relied on Ajab Hussain and another v. Muhammad Fazal and others reported in 1980 CLC 198 of the Supreme Court of AJ&K. In this case Raja Muhammad Khursheed Khan, J. (now Chief Justice) who delivered the judgment of the Court observed that:- "In our view it is not necessary that a person invoking Writ jurisdiction should have a juristic right. It is sufficient if he successfully establishes that he has an existing adversely affects his rights whatever they may be. In this view of the matter if an act is without lawful authority, and a person is adversely affected by such an act, he can seek declaration that such act is without lawful authority adversely affecting his interest. So to say that a person can only be termed as an aggrieved person if his vested interests are flouted is an incorrect import and meaning of the word 'aggrieved' in context of writ jurisdiction. In the instant case, the open space under the plot is undoubtedly meant for the benefit of the people of the locality around the site, and the respondent being one of them and adversely affected by the allotment are aggrieved parties for all intents."
' For the above view the learned Judge of the Supreme Court of AJ & K has relied on the observation of our Supreme Court as expressed in Mian Fazal Din v. Lahore Improvement Trust reported as PLD 1969 SC 223, wherein Hamoodur Rahman, C.J. has observed as follows:- "The right considered sufficient for maintaining a proceeding in a writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. A corporation entrusted with the task of formulating town improvement schemes had appreciated a particular site for the use of the public as a market place and this induced one M to purchase a piece of land just opposite to the proposed market place in the hope of opening a shop there. Subsequently, however, the scheme was altered and M was deprived of the facility he had hoped for. The Supreme Court held that the deprivation of such a facility conferred a sufficiently valuable right to enable him to maintain a writ peition."
' The Supreme Court for the above view has referred to a judgment given by Mr. Justice Kaikaus of the High Court of West Pakistan (as he then was) reported as Montgomery Flour & General Mills Limited v. Director, Food Purchases PLD 1957 Lah. 915, who observed as under:- "a petitioner must have some right if he applies to the Court for a direction or order under Article 170 (now Article 98 of the Constitution of Pakistan) but he need not have a right in that strict sense of the term which is mentioned above. Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right in a matter in which he is concerned an order be passed in accordance with law. This is a right that can be enforced by the Court in the exercise of its jurisdiction under Artcile 170 of the constitution of Pakistan. If the officer concerned passes an order that is not in accordance with law, any person whose interests are affected by the order can maintain a petition for a writ or direction. under Article 170. All orders of executive officers are subject to challenge by those affected by the orders, and a person would be affected even if he loses some benefit or advantage which he would have gained if the order was in accordance with law. A public officer passing an order on an application submitted to him does not grant the applicant a favour. He is only granting the applicant his right in the sense that he has a right to have the matter determined in accordance with law and justice. It will be observed that even a fundamental right may not be a "right" in the strict sense of the term. A right to accord or hold property, a right to carry on a profession, a right to move about freely, etc., are not rights in the strict sense because they do not cast any corresponding duties on any person. They are what writers on jurisprudence call "liberties". In a wider sense these too are recognized as rights by jurisprudence and they can form the basis of a writ petition."
' The above decision was approved by the Hon'ble Supreme Court in the case of Ikram Bus Service v. Board of Revenue reported as PLD 1963 SC 569, where the Hon'ble Supreme Court stated that:- "Even an administrative body such as an R.T.A., is under a legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged in. accordance with the law.
' It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
11. The petitioner submitted that he is an aggrieved person inasmuch as that he was a party to the proceedings before the Returning Officer, as well as respondent No. 1 whose order of review is under challenge in this petition. We find that under sub-rule (8) of rule 17 of the Rules as amended by Notification, dated 15-8-1983, the Returning Officer shall cause to be affixed at some conspicuous place in his office a notice in Form-4 of every nomination paper received by him containing particulars of each candidate and the names of the proposers and seconders as shown in the nomination paper for general informatio and inviting objections from the voters of that area. In the newly-added sub-rule (9) of rule 17 of the Rules it has been provided that representa tion, if any, received under sub-rule (8) shall be taken into consideration at the time of scrutiny of nomination papers. It is on account of th petitioner being a voter of the area that his objection and the appeal was entertained by the Returning Officer and respondent No.
1. H being a voter of the area had a right to oppose the nomination o respondent No. 3 and thus he has a legal right to challenge the orde of respondent No. 1 as an aggrieved person who was condemned unheard inasmuch as the order passed in appeal in his favour was reviewed by respondent No. 1 without affording him an opportunity of being heard. The petitioner relied upon a case reported as Saifuddin v. Chamber o Commerce, Baluchistan PLD 1982 Quetta 136, in which a Division Bench of the Baluchistan High Court did not hold a petitioner as a aggrieved person as he had not raised any objection against the candidature of any person during the course of the election. He did not even challenge at the time of election that the managing committee of the electoral college was not properly constituted. Conversely arguin the case in his favour, the petitioner submitted that he had objected to the nomination paper of respondent No. 3 not only before the Returning Officer but also before the appellate authority and thus he is an aggrieved person.
12. It will be of advantage if we quote a passage from the judgment of Dacca High Court in Muhammad Ahmad Salim v. Chairman East Pakistan Election Authority etc. reported as PLD 1965 Dacca 231 which is very much relevant for the purpose of determining the question that the petitioner can be said to be an aggrieved person. It was observed thus:- "The words "aggrieved party" or "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. "person aggrieved" must be man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something, or, wrongfully refused him something, or wrongly affected his title to something."
13. In view of the above case-law, the objection raised by Mr. Riaz Ahmed, Advocate is not tenable.
The petitioner, in our view, is a aggrieved person for all the intents and purposes of the petition before US
14. Another argument advanced by Mr. Riaz Ahmed, the learned counsel for respondents 1 and 2, is that owing to the election having been held and respondent No. 3 having been elected and declare successful in the election, this petition has become infructuous. Nc case-law was cited before us in support of this contention by the learned counsel for respondents Nos. 1 and 2. The petitioner, however, to repel the contention of the learned counsel for respondents Nos. 1 and 2 relied on a case reported as Abdul Shakoor v. Abdul Latif PLD 1966 Lah.
187. In this case during the pendency of the Constitutional petition, bye- election, pursuant to the order passed by the Election Tribunal, was held. The relevant observation by Muhammad Gul, J. (as he then was) who delivered the opinion of the Court, reads as under:- "There is no force in the second preliminary objection either. It is not controverted that the impugned order is the foundation for the bye-election which has since been held. But, the very basis on which the bye-election has been held in this case is under question in these proceedings.
If, therefore, the impugned order is found to be "without lawful authority and of no legal effect" within the meaning of Article 98 (2)(a)(ii) of the Constitu tion, then all consequential proceedings including the bye-election will cease to have effect automatically. It can scarcely be controverted that the bye-election is entirely a distinct proceedings though is a necessary consequence of the proceeding before the Tribunal resulting in the impugned order. Upon the holding of the bye- election, the impugned order has not in any manner merged in the proceeding for the bye- election. Each proceeding remained distinctly separate. Even the parties to the election petition may be different from the parties to the consquential bye-election. Therefore, a bye-election can in no sense be treated to be in the nature of proceedings in the appeal. It is upon the hearing of an appeal, that the order appealed against merges in the appellate order, this is not the case before us. Therefore, we are of the opinion that notwith standing the bye-election, the impugned order still remains subject to judicial scrutiny and will stand or fall on its own merits unaffected by the supervening event of the bye-elections. A converse view would not only perpetuate an illegality but would also rob the expression "of no legal effect" in Article 98(2)(a)(ii) of the Constitution of its full contents and true meaning."
' Placing reliance on the above decision of the West Pakistan High Court of Lahore we feel that the holding of election subsequent to the filing of this petition and declaring respondent No. 3 as successful candidate and taking oath by him as member, under the Sind Local Government Ordinance of Hyderabad Municipal Corporation, will not affect the very basis on which the election was held i.e. the nomination papers and ultimately will not render this petition infructuous.
14. The learned counsel for respondent No. 3, however contended that this Court cannot entertain this petition in exercise of its extraordinary jurisdiction because the petitioner has another efficacious, adequate and alternate remedy. In this respect he referred to rule 65 of the Rules and relied on Syed Zaffar Ahmed Shah v. Khawaja Noor Muhammad Chishti and 6 others 1984 CLC 98.
15. In the case named above the grievance in the Constitutional petition was that certain Polling Officers had allowed the casting of votes without satisfying themselves about the identity of the voters by requiring them to produce their National Identity Cards and that the Polling Officers had not mentioned the numbers of the identity cards of the voters on the counter-foils of their ballot- papers. The objection was that the petitioners should have availed another remedy before the Punjab Local Councils Election Authority which had the jurisdiction to look into the grievance made by the petitioners. Relying on the case reported as Punjab Local Council Election Authority Lahore v.
Malik Muhammad Aslam and another 1982 SCMR 1086, the learned Single Judge of the Lahore High Court dismissed the petition in limine holding that another adequate remedy before the Election Authority/Election Tribunal was available to the petitioners.
16. In the Supreme Court case referred to in the above judgment of the Lahore High Court the relevant facts are that for the elections to the special interest seat of "Peasant" of Zila Council of District Sargoda respondent No. 1 Malik Muhammad Aslam, filed his nomination papers. Another person namely, Iftikhar Ahmed Kahloon also filed his nomination papers. Both of them were accepted by the Returning Officer on 4-12-1979 (incorrectly printed as 4-12-1977 in the report). The elections to the special interest seats were scheduled to be held on 12-12-1979. On the said date (12-12-1979) an information was laid before the Punjab Local Councils Elections Authority/Appellate Authority by respondent No. 1 to the effect that neither respondent No. 1 nor Iftikhar Ahmed Kahloon were "peasants" but trying to get elected on a seat reserved for peasant and thus defeat the object of the law. On receipt of the said information the authority stayed the elections by its order, dated 12-12-1979. Subsequently, respondent No. 2 filed a regular petition under section 17 of the Punjab Local Council Ordinance, 1979 for review of the order of the Returning Officer, dated 4-12-1979, whereby the nomination papers of respondent No. 1 and Iftikhar Ahmed Kahloon for the peasant seat were accepted. It was prayed that their nomination papers be rejected. The Appellate Authority in exercise of its powers under section 17 of the Ordinance set aside the order of the Returning Officer by its order, dated 19-1-1980. The respondent No. 1 challenged the said order by filing a writ petition in the Lahore High Court which was dismissed in limine on the ground that the impugned order did not suffer from any jurisdictional defect. Feeling aggrieved by the said order of the learned Single Judge of the Lahore High Court, respondent No. 1 filed an Intra Court Appeal. It was contended that the appellate authority did not have jurisdiction to set aside the order of acceptance of the nomination papers of respondent No.
1. This contention found favour with the I.C.A. Bench, as referred in the Supreme Court judgment on appeal 1982 SCMR 1086 in the following words:- "....by the insertion of subsection (2) of section 17 in the Principal Ordinance by Punjab Ordinance XII of 1979, the powers conferred on the Election Authority under subsection (1) had been restricted and the Election Authority henceforth was debarred from dealing with and deciding such matters as could be the subject-matter of an election petition under rule 13 of the Election Petition Rules. It was further observed that the powers of the Election Authority to review an order passed by an officer under the Ordinance or Rules was subject to the provisions contained in subsection (2) of section 17 of the Ordinance which limited its powers. If the limitation as imposed by the aforesaid provisions on the powers of Election Authority had not been there, the situation might have been different but in the presence of the aforesaid subsection (2), the Election Authority cannot deal with any matter which can be dealt with by the Election Tribunal under rule 13 of the aforesaid Rules. As such, the provisions as contained in section 24 of the Ordinance to the effect that no election shall be called in question except by Election Petition should be read in conjunction with section 17(1) and (2) of the Ordinance. On this view of the matter it was held that the order, dated 19-1-1980 passed by the Appellate Authority reviewing the order passed by the Returning Officer and rejecting the nomination papers of respondent No. 1 was not competent and was accordingly set aside. It was further directed that respondent No. 1 herein will be allowed to contest election for the "peasants" seat of the Zila Council and the question of his nomination papers being invalid on account of his being not a peasant would be examined by the Election Tribunal in the election, if filed under the law."
' This order of the I.C.A. Bench of the High Court of Lahore was questioned in an appeal before the Hon'ble Supreme Court, as stated. The Hon'ble Supreme Court examined in depth the provisions of section 17 of the Ordinance and observed that:- "We have given our anxious consideration to the matter. We note that the creation of a high- powered authority like the Election Authority which is to consist of three members and whose Chairman must be or has been a Judge of the High Court ensure that an election is conducted honestly, justly and fairly in accordance with the provision of the Ordinance and Rules, is a recent phenomena in Election Laws, intended to see that in the conduct of election there should be fairness, impartiality and honesty and that the provision of the law are not violated. Thus, subsection (2) of section 17 does not appear to be a provision which was intended to restrict the general and plenary power of superintendence conferred by section 17(1) of the Ordinance and there appears to be force in the submission that the interpretation placed by the Division Bench of the High Court ousting the jurisdiction of the appellant Election Authority to take any remedial action until after the Election has taken place i.e. when the result of the poll has been notified under rule 41 (2) of the Punjab Local Councils (Election Rules), 1979 would appear to defeat the mandate of the law given in section 17(1) that the Election Authority must see "that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and Rules". On the interpretation given by the learned Judges of the Division Bench, the appellate authority would cease to have jurisdiction in the conduct of the elections and all illegalities and irrgularities committed during the course of the elections would not be amenable to correction by the Election Authority.
' It is true that in the terms in which section 17(1) is couched all disputes and election irregularities could be dealt with thereunder. However, section 24 of the Ordinance provided that "no election shall be called in question except by an election petition". Therefore, in order to clarify the kind of matters which can be enquired into by the Election Tribunals, subsection (2) of section 17 was added. This is evident from the terms of subsection (2) which provides that 'nothing contained in subsection (1) shall be construed to mean'." 1982 SCMR 1086 ' It was further observed:- "....Irregularities, violation of the law and other election malpractices impairing the honesty and fairness of the elections could be corrected by the Election Authority under subsection (1) of section 17, but as the law also provided for calling in question an election by an election petition, those matters which could be questioned by an election petition were debarred from the jurisdiction of the Election Authority. However, an election petition can be presented after the publication of the result in the official Gazette but as the Election Authority is charged with the duty of seeing that an election held honestly, justly and fairly in accordance with law, the irregularities which occur before the notification of election under rule 41(2) of the Election Rules, notifying the name of the returned candidate in the offical Gazette can be taken up by the Election Authority. In other words it is only those post-election disputes, which can be taken up by the Election Tribunal by an election petition that have been excluded from the jurisdiction of the election authorities and no other." 1982 SCMR 1086.
' For this view, the Hon'ble Supreme Court referred to its two earlier decisions in James Ryas Maseh v. Punjab Local Councils Election Authority, Lahore 1981 SCMR 919 and Ahmed Khan v. Punjab Local Councils Election Authority Lahore and others 1981 SCMR 1250.
17. In the present case we find that the petition has been filed on 22-9-1983 whereas the elections were held on 26-9-1983. There was neither any Election Tribunal in existence nor dispute could be referred to the Election Tribunal as rule 65 provides that no election shall be called in question except by an election petition made by the candidate for that election. Admittedly, the petitioner is not a candidate for that election. He is simply a voter of the local area. However, the case relates to a pre-election dispute which could be looked into by the Election Authority under rule 3 of the said Rules. The petitioner, therefore had a remedy under rule 3 of the Election Rules to file application before the Election Authority, who is competent to review the order passed by any officer and makes Such consequential orders as it may consider appropriate for ensuring fair elections.
Placing reliance on the above-cited cases namely, 1982 SCMR 1086 and 1984 CLC 989 we are of the view that there was an adequate, and efficacious remedy available to the petitioner who failed to avail the same as provided in rule 3 of the rule. But since we are inclined to dismiss this petition on another ground, we do not wish to comment any more on this aspect of the matter.
18. Now, coming to the merits of the case, the whole case of the petitioners is based on section 37(1)
(b) of the Ordinance which has been already referred to above. His contention is that respondent No. 3 had not completed the age of 25 years on the day when the nomination papers of respondent No. 3 were filed or scrutinized. To support his contention, on factual ground, he relied on a photostate copy of the certificate issued by Controller of Examinations, Board of Intermediate and Secondary Education, Hyderabad, wherein the date of birth of respondent No. 3 has been shown as 27th September, 1958. Accordingly respondent No. 3 had not attained the age of 25 years on the day of the filing or scrutiny of his nomination papers, but he will certainly be completing the age of 25 years exactly on the day of the election i.e. 26-9-1983, when he was elected. The question, therefore arises whether the material date for the purpose of election of respondent No. 3 as a member will be the date for the filing of the nomination papers and scrutiny thereof or the date when the election is actually held. Section 37(1)(b) of the Ordinance prescribes conditions as to who will be qualified to be elected as and to be a member. The existence of the condition laid down in subsection (1)(b) of section 37 of the Ordinance must in our view relate to the time when a candidate is to be elected and to be a member. So, the date of the election will be the material date to fulfil the requirement of the provisions of section 37(1)(b) of the Ordinance. In this view of the matter, respondent No. 3 stands qualified to be elected and to be a member on the completion of his age of 25 years on 26-9-1983, on the date the elections were actually held. Therefore, the Returning Officer's order accepting the nomination papers of the Returning Officer on the ground that respondent No. 3 at the time of election will be of 25 years of age holds good. Even otherwise, it may be noted that respondent No. 3 was a sitting councillor and according to electoral roll, he had attained the age of 25 years on the date of scrutiny of his nomination papers. The appellate authority, in the face of this evidence, could not go behind, as the entry in the electoral roll was not challenged at the proper stage. Reliance is placed on a judgment of the Supreme Court in the case of Ch. Muhammad Hussain v. Election Tribunal and another reported as 1982 SCM R 307. Had the respondent No. 1 given notice to the petitioner before passing the impugned order of review, nothing would have turned on it.
' Therefore, we do not consider it to be a fit case for remand.
19. The upshot of the above discussion is, that respondent No. 3 had fulfilled the requirements of section 37(1)(b) of the Ordinance and was qualified to be elected as a member under the provisions of the Ordinance and the Rules framed thereunder.
20. We would also like to observe that the constitutional jurisdiction is invoked in aid of justice and not to cause injustice. Since we have found that respondent No. 3 had attained the age of 25 years and thereby had fulfilled the qualification of being elected as a member on the date of election as provided under section 37(1)(b) of the Ordinance, it will be an injustice to him to remand the case to respondent No. 1 or to interfere with his order.
21. No other plea was taken or argument advanced before us by either of the parties.
22. In the result, for the reasons discussed above we dismiss this petition. The parties will, however, bear their own costs.
23. Before parting with the case we would like to mention that the petitioner during the pendency of this petition had also submitted two Miscellaneous Applications Nos. 148 and 149 of 1984 which were ordered by this Court to be heard alongwith the main petition. In the first application it was inter alia prayed that respondent No. 1 be restrained from taking oath from respondent No.
3. In the second application a prayer was made that respondent No. 3 be restrained from exercising the powers of councillor as elected member. In view of the order passed on the main petition both these applications do not lie and are consequently dismissed.