ASLAM RIAZ HUSSAIN, J.-- This petition by Riazul Haq is directed against the judgment of the High Court, dated 19-2-1985, accepting respondent's writ petition (No. 680/84).
2. Facts giving rise to the present petition, briefly, are that Riazul Haq petitioner, Khushi Muhammad, respondents Nos. 1 and 2 others contested the election in 1983 to a seat in the Municipal Committee Okara, from Ward No. 5. During the polls 259 men and 242 women voted in favour of Riazul Haq. Out of these 2 votes were discarded as invalid leaving a total of 499.Votes in his favour. As against this 267 men and 232 women voted in favour of Khushi Muhammad respondent No.1. As such total votes cast in his favour were also 499. The Returning Officer is, however, stated to have opened the packet of the 'tendered' ballot-papers and declared one of the votes cast in favour of Khushi Muhammad respondent as valid, with the result that he was found to have secured one vote more than the petitioner and was, therefore, declared to be successful.
3. Feeling aggrieved Riazul Haq petitioner challenged the respondent's election through an Election Petition. The Election Tribunal, after due inquiry into the matter, held that since both the candidates had secured equal votes (i.e. 499 each) and that the Returning Officer should have proceeded to draw lots as provided by Rule 40(7) of the Punjab Local Government Election Rules, 1979. It then remanded the case to the Returning Officer for drawing of lots.
It may be mentioned that the petitioner had also taken a number of other objections in his election petition but his learned counsel states that after the Election Tribunal had reached the above- noted conclusion he (the counsel) gave up the other objections.
4. On remand the Returning Officer proceeded with the drawing of lots, which turned up in petitioner's favour, who was, therefore, declared as successful.
Khushi Muhammad respondent, however, challenged the result through a writ petition and also filed an Election Petition. His election petition was dismissed on 16-3-1984, while his writ petition was accepted by the High Court vide the impugned judgment, dated 15-4-1984, on the ground that after giving the finding that both the candidates had obtained equal number of votes, the learned Election Tribunal should have itself proceeded to draw lots as provided by Rule 16(1) of the Punjab Local Councils (Election Petition) Rules, 1979. As a result the drawing of lots by the Returning Officer under Rule 40(7) of the Punjab Local Councils (Election) Rules, 1979 and declaration of the petitioner as successful candidate was held by the High Court to be without lawful authority and of no legal effect, and the Election Tribunal was directed to draw the lots itself.
Feeling aggrieved the petitioner has filed the present petition for leave to appeal.
5. We have heard the learned counsel for the petitioner at length and have gone through the impugned judgment.
The petitioner's counsel urged that Khushi Muhammad having taken part in the lots before the Returning Officer should not be heard to say that lots should have been drawn by the Election Tribunal itself. He also urged that the Election Tribunal had rightly directed the Returning Officer to draw lots as, primarily. It was the duty of the Returning Officer under Rule 40(7) of the Punjab Local Councils (Election) Rules, 1979.
7. We are not inclined to agree with this contention. The participation of the respondent in the drawing of lots by the Returning Officer did not confer any jurisdiction on the latter and we are of the view that the High Court was justified in holding that this exercise by the Returning Officer was illegal and without lawful authority.
8. It would be noticed that Rule 40(7), which provides for the declaration of the result by the 'Returning Officer' by drawing of lots, occurs in the Punjab Local Government (Election) Rules, 1979.
These Rules deal with the procedure to be followed for the conduct of elections, from the stage of supply of electoral rolls and filing of nomination papers upto the stage of declaration of results and taking oath by the members.
On the other hand Rule 16(1), which deals with the powers of the Election Tribunal to declare the result of an election to a seat by drawing of lots, occurs in the Punjab Local Councils (Election Petition) Rules, 1979. These Rules deal with the subsequent stage, which begins after the results have been declared and provide for filing of election petitions before the Election Tribunals constituted under section 25 of the Punjab Local Government Ordinance, 1979 as also the procedure to be followed by the Election Tribunals in deciding such petitions.
Rule 16(1) reads as follows:- "16. Decision in case of equality of votes:
(1) where after the conclusion of the trial, it appears that there is an equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Tribunal shall draw a lot in respect of such candidates and the candidate ors whom the lot falls shall be deemed to have received the highest number of votes entitling him to be declared elected."
The use of the word 'shall' in this rule makes it amply clear that it is mandatory for the Election Tribunal to itself draw lots when both candidates are found to have secured equal number of votes.
As such the High Court has rightly held that the order of the Election Tribunal remanding the case to the Returning Officer for drawing of lots was without lawful authority.