' SARDAR MUHAMMAD ASHRAF KHAN, J.-Sardar Mehtab Khan, petitioner has brought this writ petition under section 44 of the Azad Jammu and Kashmir Interim-Constitution Act, 1974, to challenge the validity of the decision of the Election Tribunal Poonch, dated 15-11-1984 whereby his (petitioner's) election to the District Council Poonch from Ward Hurnamara of Union Council Hurnamara was declared void and he was unseated and Sardar Suleman Khan, respondent No, 2 (hereinafter referred to as respondent) was declared elected in his place from the said Ward of the District Council.
2.' The facts of the case are that the petitioner and respondent alongwith some other candidates mentioned in paragraph 1 of the writ petition, contested the election for the membership of the District Council Poonch from Hurnamara Ward of Union Council Hurnamara held on 27-10-1983 and the petitioner a ,c1 one Syed Muzaffar Hussain Shah were declared elected to the two seats fixed for the said Ward of the District Council by the Returning Officer in terms of sub-rules (1) and (3) of rule 44 of the Azad Jammu and Kashmir Local Government Election Rules, 1983, (hereinafter referred to as Election Rules) by preparing a statement in Form XIX, on 29-1u-1983.
3. Subsequent to the above declaration of result, the Election Commissioner on the report of the Returning Officer directed the fresh poll at the Polling Station Kotaira of the said Ward on the ground that the poll at the said Polling Station was stopped by the Presiding Officer on account of obstructions and interruptions caused by some of the contesting candidates and their supporters and accordingly fresh poll were taken at the said polling station as a result of which the petitioner was declared elected and the Notification to that effect was issued by the Collector, Poonch, on 22- 11-1983.
4. The election of the petitioner as a Member of the District Council from Hurnamara Ward of Union Council Hurnamara was challenged by the respondent in an election before the Election Tribunal, Poonch who accepting the said petition, vide his decision, dated 11-5-1984 unseated the petitioner from the membership of the District Council and in his place declared the respondent to have been duly elected as a Member of the District Council from Hurnamara Ward, as it came to the conclusion that the Election Commissioner had no power to direct fresh poll at the Polling Station Kataira of the said Ward after the declaration of the results by the Returning Officer and that the respondent had already stood elected when the fresh poll were taken in pursuance to the said direction of the Election Commissioner.
5. Feeling aggrieved by the above order of the Election Tribunal. Poonch the petitioner has preferred this writ petition wherein it is prayed that the said decision of the Election Authority be declared to be illegal, void and having been made without authority and the same be set aside.
6. The writ petition has been contested by the respondent by filing written statement wherein it is contended that the impugned decision of the Election Tribunal is perfectly lawful inasmuch as he had already been elected to the seat of the District Council by virtue of declaration of results of the Election held on 27-10-1983 by the Returning Officer on 29-10-1983 under rule 44 of the rules for which reason the subsequent Notification, dated 22-11-1983 by the Collector by which the petitioner was declared elected from Hurnamara Ward of the District Council, was unlawful.
7. We have heard the learned counsel for the parties and have also gone through the record of the case and the relevant law applicable to it. The learned counsel for the petitioner has assailed the decision of the Election Tribunal on the following grounds:-
(1) That the Election Tribunal lacked the jurisdiction to entertain and hear the election petition filed by the respondent challenging the validity of the election of the petitioner as a member of the District Council as per Notification of the Collector, dated 22-11-1983 because such a petition is maintainable only on the ground that the corrupt practices, material irregularity or illegal act was committed by the contesting candidate or his authorized agent during the election but no such allegation was made by the respondent in his election petition against the petitioner before the Election Tribunal ;
(2) That the respondent was debarred from challenging the election of the petitioner before the Election Tribunal under the doctrine of estoppel as he had himself voluntarily taken part in the fresh poll taken at the Kotaira Polling Station in compliance with the directions of the Election Commissioner;
(3) That as the poll at the Polling Station of Kotaira of Hurnamara Ward was stopped by the Presiding Officer due to the disturbance and rioting that had taken place there and unlawfully taking out of custody of the Presiding Officer ballot-boxes by some of the contesting candidates, the Election Commissioner under section 30(2) of the election rules was vested with the powers to direct fresh poll at the said polling station; and
(4) That apart from the powers enjoyed by the Election Commissioner under rule 30 of the Election Rules, he was competent to order fresh poll even under section 65 of the Azad Jammu and Kashmir Local Government. Ordinance, 1983 (hereinafter referred to as Ordinance) which confers power on him to issue any direction for the conduct of the election.
8. On the other hand, it has been argued by the learned counsel for the respondent that the elects petition filed by the respondent was perfectly maintainable and the respondent was not estopped from challenging the election of the petitioner before the Election Tribunal as the doctrine of estoppel is not available against the statute and that even otherwise he had participated at the fresh poll taken at one of the polling stations of the concerned Ward under protest to the Election Commissioner. It has been further contended by him that the respondent had been declared elected as a Member of the District Council from Hurnamara Ward by the Returning Officer, under rule 44 of the Election Rules, after counting the votes of all polling stations of the said Ward including that of Kotaira and as such after such a declaration the Election Commissioner had ceased to have powers under rule 30(2) of the Election Rule to order fresh poll at the polling station in question and thus the fresh poll taken at the said station was unlawful with the result that the Notification issued by the Collector regarding the petitioner having been elected as a Member of the District Council on the basis of such fresh poll was illegal and void having been made without authority.
9. After giving our due consideration to the arguments addressed at the bar and going through the relevant record of the case, law and rules applicable in the matter, we are of the opinion that the contentions raised by the learned counsel in support of this writ petition are without any substance and the impugned order of the Election Tribunal is perfectly lawful which cannot be interfered with in exercise of the constitutional jurisdiction of this Court.
10.
10.First of all, we would deal with the objection of the learned counsel for the petitioner as to the jurisdiction of the Election Tribunal to hear and decide the election petition of the respondent. In this connection it has been contended by the learned counsel for the petitioner that Election Tribunal had no jurisdiction to hear election petition under rule 60 of the rules because it had no power to decide as to whether or not the Election Commissioner had the power to order fresh poll at the Polling Station Kotaira and that the Election Tribunal has wrongly held that the petition was competent under clause (e) of rule 60 of the Election Rules because there is nothing on the record to show that the fresh poll taken at the said polling station had, in any way, materially affected the result of the election under challenge before the Election Tribunal. It is further contended that there was no allegation of any material irregularity and corrupt practice having been committed by the petitioner during the election and as such in the absence of any such allegation in the election petition the Election Tribunal had no jurisdiction to declare his election void and the petitioner as having been elected in his place. We, find no force in this contention and in our view the election petition by the respondent was competent not only under clause (c) but also under clauses (e) and (f) of the rule 60 of the Election Rules. For the facility of reference clauses `c', `e' and 'f' of the said rule are reproduced which reads, respectively as follow:- "60. Grounds for declaring an election void.-The Election Tribunal shall declare an election to be void if it is satisfied that:- (a)
(b) . .
(c) the failure of any person to comply with the provision of the Ordinance or these rules has materially affected the results of the election; or
(d) .
(e) the improper reception or refusal of any vote or the reception of any vote which should not have been received, has materially affected result of the election; or
(f) the election of alb returned candidate has been procured or induced by any corrupt practice, illegal act;"
11. The respondent had called in question the election of the petitioner in his election petition on the ground that the fresh poll taken at the Polling Station Kotaira in compliance with the direction of the Election Commissioner was not lawful as the Election Commissioner had no power to give any such direction after his having been declared elected as Member of the District Council by the Returing Officer in terms of rule 44 of the Election Rules. In view of the above ground taken in the election petition for assailing the impugned election of the petitioner, the Election Tribunal was empowered to hear the election petition and make the decision impugned in this writ petition under either of the clauses (c), (e) and ( f ) of the rule 60 of the Election Rules. It wag maintainable under the aforesaid clause (c) because if the petitioner had already been lawfully declared elected as a Member of the District Council and the Election Commissioner had no power to order fresh poll after such a declaration then the direction of the Election Commissioner for fresh poll at one of the Polling Station of Hurnamara Ward of the District Council, Poonch and taking of fresh poll at it in pursuance of the said direction amounted to the failure of the Election Commissioner and the Returning Officer to comply with the provisions of the Ordinance and the Election Rules and such a failure had materially affected the results of the election from the said Ward of the District Council inasmuch as but for it the impugned Notification in respect of the petitioner having been elected as Member of the District Council would riot have been issued. The election petition was competent under clause e' of the rule 60 for the reason that if the fresh poll taken at the Kotaira Polling Station was unlawful, then the votes cast at it could not be counted for the purpose of formulating and declaring the result of the said polling station and thus there counting for the said purpose amounted to improper reception of votes which materially affected the result of election in favour of the petitioner and against the respondent.
12. Similarly the Election Tribunal was competent under aforesaid clause to take the impugned decision after its having held that the Election Commissioner had no powers to direct fresh poll at Kotaira Polling Station because in such a case the impugned election of the petitioner had been procured by an illegal act of taking fresh poll at the C said polling station.
13. For the above reasons, we do not find the impugned order of the Election Tribunal suffering from any jurisdictional defect and, in our view, it was competent to pass the same under rule 60 of the Election Rules.
14. The next legal objection to the making of the impugned order by the Election Tribunal relates to the application of doctrine of estoppel and acquiescence. In this respect, it has been contended that since the respondent had participated in the fresh poll taken at the Kotaira Polling Station under the order of the Election Commissioner, he was estopped by his said conduct from challenging the election of the petitioner from . The concerned Ward notified on the basis of the results of such fresh poll. This argument of the learned counsel for the petitioner also has no substance in it. The case of the respondent was that the fresh poll taken at the said polling station was not warranted under law as he had already been declared elected as Member of the District Council from the Ward in which the said polling station was included. If this ground prevails then his participation in the fresh poll taken at the said polling station did not stand in his way of challenging the validity of the election of the petitioner before the Election Tribunal as it did not in any way legalize the fresh poll which otherwise lacked legal sanction behind it. It is well-recognized principle of law that there is no estoppel against statute and thus the respondent's taking part in the fresh poll taken at one of the polling station of the concerned Ward did not place any embargo on his right to challenge the election of the petitioner based on the counting of the vote, cast at the fresh poll taken at the said polling station.
15. Moreover, it cannot be said that the respondent had taken part in the fresh poll under consideration without any protest. His contention is that he had participated in the fresh poll under a protest to the Election Commissioner and his this plea has been found to be correct. There is an attested copy of the application, dated 2-11-1983 made to the Election Commissioner by the respondent placed at page 36 of the Election Tribunal's file in which it has been alleged that the respondent had been duly declared elected as a Member of the District Council by the Returning Officer and that now the proposal of the Returning Officer for taking fresh' poll at Kotaira Polling Station is unlawful which should not be accepted but rejected. Thus in view of his above application, it cannot be said that the respondent had acquiesced at the taking of fresh poll and had not taken any exception to it. For the foregoing reasons, we dispel the contention of the learned counsel for the petitioner that the respondent was debarred from challenging the validity of the election of the petitioner before the Election Tribunal.
16. The last point arising out of the respective contentions of the parties is very important, and on which the decision of this writ petition depends, is as to whether the Election Commissioner under law was vested with the powers to direct fresh poll at the Polling Station Kotaira and in case the answer to the above question is in the negative, whether the respondent had already stood elected as a Member of the District Council from Hurnamara Ward when the petitioner was notified by the Collector as an elected Member of the District Council from the said Ward and as such the said notification was void and unlawful. The contention of the learned counsel for the petitioner in this respect is that the action of the Election Commissioner in directing fresh poll at the aforesaid polling station was perfectly lawful as he enjoyed such a power under rule 30(2) of the Election Rules in view of the fact that the polling at that polling station had been interrupted and obstructed due to disturbances and riot caused by the contesting candidates and their supporters and the ballot-boxes were also, unlawfully taken out of the custody of the Presiding Officer by some of the candidates for which reason the poll had been stopped by the Presiding Officer and the matter had been reported to the Election Commissioner by the Returning Officer. It is further contended by him that election of the respondent had not been notified by the Collector as was required under section 26 of the Ordinance with the result that he did not stand elected as a Member of the District Council at the time of making direction for fresh poll at the Kotaira Polling Station by the Election Commissioner and as such the election Commissioner was fully competent to direct fresh poll at the said polling station under rule 30(2) of the Election Rules. It is also contended by the learned counsel for the petitioner that under section 65 of the Ordinance the Election Commissioner is also empowered to issue directions from time to time in respect of organization and conduct of the election and thus the Election Commissioner was competent to direct fresh poll at the Kotaira Polling Station of the concerned Ward under the aforesaid section even if he could not give the same under rule 30(2) of the Election Rules.
17. On the basis of the above grounds, the learned counsel for the petitioner contended that action of the Election Commissioner in directing the fresh poll at one of the polling station of Hurnamara Ward was valid and lawful and consequently the election of the petitioner, notified on the basis of such a poll and impugned in the election petition was also legal and pleads that judgment of the Division Bench of this Court reported in PLD 1984 A J K 19 in which it has been held that after the declaration of results by the Returning Officer in terms of rule 44 of the Election Rules, the Election Commissioner ceases to have powers under rule 30(2) of the Election Rules to order fresh poll at any of the polling station of the Ward, be reviewed.
18. We have given our anxious consideration to the above submission of the learned counsel for the petitioner but express our inability to agree to him and find yourself quite in agreement with the principle of law laid down in the judgment of this Court referred to above.
19. There is no denying the fact under rule 30(2) the election Rules the powers are conferred on the Election Commissioner to direct fresh poll at all or any one of the polling stations of the Ward under certain circumstances but the precise question that falls for determination in the case is the extend of the scope of the above Rule and the stage in the election process upto which the Election Commissioner can exercise his power under the same. It appears appropriate here to reproduce Rule 30 of the election rules which is to the following effect:- "30. Stopping of the poll.-(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if :
(a) the poll at the polling station is, at any time, so interrupted or obstructed for reasons beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under rule 29; or
(b) any ballot-box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed or lost or is damaged or tempered with to such an extent that the result of the poll at the polling station cannot be ascertained.
(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.
(3)
20. Bare reading of the rule reproduced above would show that the Election Commissioner is bound to order fresh election at a polling station where the poll had been stopped by the Presiding Officer concerned under sub-rule (1) of rule 30 of the Rules for the reasons enumerated under clauses (a) and (b) of the said sub-rule and the matter has been reported to him if he is satisfied that the election of the concerned Ward have not been determined by the polling that has already taken place at the said polling station taken with the result of the polling at other polling stations of the same Ward. To put it otherwise it means that by pressing into service his powers under rule 30
(2) of the election rules, the Election Commissioner shall direct the fresh poll at a polling station of the Ward where polling was stopped by its Presiding Officer before the result of election of such a Ward are determined by the competent authority after counting the votes polled at that polling station prior to the stopping of poll at it alongwith the votes cast at other polling station of the said Ward but his authority to give such a direction comes to an end and he is debarred from directing fresh poll at any polling station as soon as the result of election of a Ward stands determined after counting the votes cast at its all polling stations including the one at which poll was stopped by its Presiding Officer.
21. ' In this case at the close of the poll, the Presiding Officer of the Polling Station Kotaira had counted the votes cast in favour of the contesting candidates including the petitioner and the respondent in the presence of such contesting candidates, election Agents and polling Agents as were present at the count and had prepared the result of the count and a copy of the same was forwarded to the Returning Officer. The Returning Officer on receipt of the results from the Presiding Officers of the polling stations of the said Ward had consolidated the results in Form-XIX at the appointed date in his office in the presence of such candidates as were present there and had declared the respondent elected to one of the two seats of the said Ward. The results of the election to the Ward of the Local Council stands finally determined when declaration of the same is made by the Returning Officer under Rule 44 of the Election Rules. It appears appropriate to reproduce the relevant provisions of the aforesaid Rule which read as under :- "44. Declaration of results.-(1) When the votes of all the contesting candidates have been counted the names of the candidates shall be arranged in the order of the number of valid votes obtained and the candidate, in that order equivalent to the number of seats to be filed shall be declared elected.
(2) . . . I . . ,
(3) The Returning Officer shall prepare a statement in Form XIX showing the names of the contesting candidates, the valid votes obtained by each candidate, the vote rejected in the case of each candidate, and the names of the candidates elected. A copy of this statement shall be forwarded to the Collector/Election Commissioner and a copy shall be posted at a conspicuous place at the office of the Returning Officer."
22. From the perusal of the above provision of the Election Rules, it becomes quite clear that after the counting of the valid votes, cast in favour of the contesting candidates, the candidates securing the highest number shall be declared elected to the seats fixed for the Ward of the said Local Council by the Returning Officer under sub-rule (1) of the rule 44 of Election Rules who shall then prepare a statement in Form-XIX showing, among others, the names of the candidates elected from such a Ward and shall post a copy of such a statement at a conspicuous place at his office and shall also send a copy of the same to the Election Commissioner/ Collector. The results of election of a Ward declared by its Returning Officer in Form-XIX are final and conclusive and the election of a contesting candidate declared elected to a seat of Local Council in the said, form attains finality subject, of course, to the order of the Election Tribunal made in election petition in which the validity of such a election is challenged.
23. Rule 56 deals with the election petition, the relevant portion of which reads as follow :- "56. Election petition.-(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.
(3) .
(4) . 4.
The provisions of the above rule make it abundantly clear that after the declaration of the results of the election of a Ward by the Returning Officer under Rule 44 of the Election Rules, the election of successful candidate can only be challenged by way of election petition and that too within 30 days from the date of the declaration of such results. Therefore, when the contesting candidate from a Ward of the Local Council is declared to have been elected to such a Council by the Returning Officer in terms of sub-rules (1) and (3) of Rule 44 of the Election Rules, he cannot be unseated by any authority including the Election Commissioner except by the order of the Election Tribunal made in an election petition filed against his election before it and thus in view of this legal position, we fail to see how the Election Commissioner can deprive a contesting candidate who has been declared elected to the Local Council by thee. Returning Officer in return statement in form XIX from the membership of such Local Council by giving direction for fresh poll at a polling station of the Ward in the purported exercise of his power under Rule 30(2) of the Election Rules. Such a direction will have the affect of nullifying the election of the contesting candidate declared to have been elected b the Returning Officer in accordance with the provision contained in Rule 44 of the Election Rules, the validity of which can only be called in question by way of presenting election petition to the Election Tribune under Rule 56 of the Election Rules which can be declared void by the Election Tribunal under Rule 62 of the said Rules.
24. In this view of the matter, the provisions of the election rule contained in Chapter-II relating to the election petition shall be rendered meaningless and redundant if the contention of the learned counsel of the petitioner, that Election Commissioner is vested with the powers to order fresh poll at any of the polling stations of the Ward even after the declaration of its result by the Returning Officer under Rule 44 of the Election Rules, is accepted.
25. We, also do not find any force in the contentions of the learned counsel for the petitioner that since the election of the respondent had not been notified under section 26 of the Ordinance when the Election Com missioner had made the directions for fresh poll at one of the polling station of Hurnamara Ward, the Election Commissioner had the jurisdiction under section 30(2) of the Rules to direct fresh poll under discussion.
26. In our opinion, a contesting candidate stands elected as a Membe of a Local Council on his being declared so elected by the Returning Officer of the concerned Ward of such Local Council in form XIX under Rule 44 (3) of the Election Rules and his election as such a Member does not further depend on his name being notified under section 26 of the Ordinance as is contended by the learned counsel for the petitioner. This becomes quite obvious w en we look into the provisions of rule 56 of the Election Rules. Under sub-rule (2) of the said rule the election petition against the election of contesting candidate to a Local Council is required to be presented within 30 days next after the declaration of his result under Rule 44 of the Election Rules. If a contesting candidate would not have been deemed to have been elected unless notification to that effect is issued under section 26 of the Ordinance then the limitation for filing election petition would have been made to commence from the date of the notification and not from the date of the declaration of the results b the Returning Officer under Rule 44 and thus the very fact that the right to present election petition calling in question, an election of Local Council accrues on the declaration of results by the Returning Officer, go a long way to show that the election to the Membership of the Local Council becomes final on the declaration of the result under Rule 44 and their validity and finality does not depend upon any notification made under section 26 of the Ordinance.
27.
27.The above section only says that Election of membership of Local Council shall be notified and does not say that such a Member shall be deemed to have elected only on his being so notified.
Suppose if the requirement of this section are not fulfilled, could it be said that the contesting candidate duly elected as a Member of a Local Council under the Ordinance and Election Rules, ceases to become elected Member of such a Council. The answer would obviously in emphatic 'NO'. Section 26 of the Ordinance only says that the election of a Member of the Local Council shall be notified. The Dictionary meaning of the word 'notify' is to make known, to inform or give notice to and thus the notification issued only means an act of making known or giving notice of.
28. In our view, there is sufficient compliance with the provisions of the aforesaid section of the Ordinance and the election of the Member of the Council stands notified when he is declared elected as a Member of such Council by the Returning Officer of the concerned Ward in a statement contained in Form-XIX because in such a statement not only a contesting candidate is declared elected to a Local Council but the copy of such a statement is posted at the conspicuous place at the office of the Returnin Officer beside the copy of the same is also forwarded each to the Election Commissioner and the Collector and thus the result of the elections are made known. It appears that the Government vide its Notification No, 519.33/83, dated 30-11-1983 had conferred powers on the Collector concerned to issue Notification of elected Members of the Local Council for publication in the official Gazette. This Notification is defective K because under it, the powers to the Collector for issuing Notification are purported to have been given in exercise of the powers under section 26 of the Ordinance whereas the said section does not give any such powers to the Government. Anyhow, this notification only gives powers to the Collector concerned to issue notification of the. Elected Members for publication in the official Gazette. This means that the Notification will contain the names of the persons who already stood elected as a Member of a Local Council and that they will not become Members of a Council only on the issuance of such notification and such a notification by the Collector is only a formality. In this view of the matter, the contention of the learned counsel for the petitioner that in the absence of the notification about the election of the respondent as a Member of the District Council, Election Commissioner had power to order fresh poll at the Polling Station Kotaira, does not carry any weight.
29. Now, we proceed to examine the contention of the learned .Counsel for the petitioner that the Election Commissioner was competent to give directions for fresh poll even under section 65 of the Ordinance apart from the powers enjoyed by him under Rule 30(2)' of the Election Rules. Section 65 of the Ordinance reads as under :- "65. Conduct of elections.-(1) Subject to such directions as may from time to time be issued by the Election Commissioner, all elections to local councils under this Ordinance shall be organized and conducted in accordance with the rules, and such rules may provide for all matters connected therewith or incidental thereto, including by elections, and corrupt or illegal practices and other election offences, and penalties, therefore, submission, trial and disposal of election petitions."
29-A. We have considered this contention in the light of the provisions contained in the section reproduced above but find ourselves unable to agree with the same. The above section lays down that the elections to the L Local Council shall be organized and conducted in accordance with the Rules although it is also provides that such an election shall be subject to such direction as may, from time to time, be issued by the Election Commissioner. Rule 30 (2) specifically confers powers on the Election Commissioner under certain circumstances to order fresh poll at a polling station of a Local Council and thus in view of the provision of the aforesaid section of the Ordinance the election to the Local Council under the Ordinance shall be organized and conducted in accordance with rules. The Election Commissioner can only order fresh poll in exercise of the powers vested in him for the purpose under rule 30(2) of the Election Rules and does not possess any such powers under his authority to issue direction for the conduct of the election under the said section of the Ordinance if he is debarred from issuing direction for fresh poll under the said Election Rules for the purpose. The direction by the Election Commissioner contemplated under section 65 of the Ordinance is of a general character and application regarding the conduct of election to the Local Council and does not mean a direction in an individual case which may run counter to the Rule specifically provided for on the subject in the Election Rules. If a thing is required to be done in a particular way, it should be done only in that way or not at all. Moreover, under the said section of the Ordinance, the direction can be issued by the Election Commissioner with regard to the matters relating to the conduct of election but, as stated earlier, the process of the conduct of the election is completed as soon as the results of the election of a Ward of a Local Council are declared by the Returning Officer under section 44 of the Rules and since in the instant case, the results of the election to the seats of the Hurnamara Ward of the District Council already had been declared by the Returning Officer under the said Rule at the time of making direction by the Election Commissioner for fresh poll at one of the polling station of the said Ward, the Election Commissioner was not empowered to issue any direction in respect of it under the powers vested in him under section 65 of the Ordinance. The Rulings of the superior Courts such as PLD 1957 SC 30i, 1982 SCM R 1086, 19A CLC 889, PLD 1967 Lab. 977, PLD 1963 Kar. 588 and PLD 1967 Lah. 729 cited by the learned counsel for the petitioner in support of his contentions raised in this writ petition were gone through by us but they are found to be irrelevant and inapplicable to the facts of the present case.
30. The upshot of the above discussion is that after the respondent having been declared elected as Member of the District Council, Poonch from its Hurnamara Ward by the Returning Officer by making such a statement in Form-XIX, the Election Commissioner ceased to have power to make any order having the effect of undoing such election and did not, retain the power to direct fresh poll to be taken at Kotaira Polling Station. After such a declaration, the election of the respondent no longer remained amenable to correction by the Election Commissioner and the same could only be called in question by presenting an ElectionlM Petition under Rule 56 of the Election Rules challenging its validity before the Election Tribunal who was competent to declare it void and set it aside under Rule 60 of the Election Rules. The petitioner did not choose the right forum for redress of his grievance arising out of the election of the respondent with the result that it had become final and the respondent was a duly elected member of the District Council when the fresh poll at the Polling Station Kotaira of Hurnamara Ward were taken in pursuance of the unlawful direction of the Election Commissioner.
31. This being the legal position, the election of the petitioner on IN the basis of the fresh poll held at the aforesaid Polling Station was illegal and, consequently, the notification by the Collector notifying the name of the petitioner as an elected member of the District Council, Poonch from the said Ward was also ulawful and void ab initio. The Election Tribunal has, therefore, rightly accepted the election petition of the respondent against the election of the petitioner and declared the election of the petitioner to be void and the respondent to have been elected in his place as a Member of the District Council.
For the foregoing reasons we do not find any ground for disagreeing with the principle of law enunciated in the judgment of this Court referred to above and reviewing the same and we respectfully follow it wherein it has been held that the Election Commissioner has the authority to order0 fresh poll 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. The writ petition is accordingly dismissed with no order as to costs.