This writ petition has been filed to question the validity of the impugned order of the Election Tribunal constituted under the Punjab Local Council Ordinance, 1979, involving the recounting of the ballot papers cast at a local council election and as a result whereof respondent No. 1 was declared to have been duly elected.
2. There was a straight contest between the petitioner and respondent No.1 for union council seat.
The polling was held whereafter the-Presiding Officer carried out the count of the votes and held that each candidate had obtained equal valid votes that is 297 votes. The Presiding Officer at the same time rejected 26 ballot papers as invalid. In such a situation, the fate of the election was determined by spin of the coin. Luck favoured the petitioner Painday Khan. He was declared to be the returned candidate.
3. The above events led to filing of election petition by Mohammad Zaman respondent No. 1 before the Election Tribunal constituted under the Punjab Local Council Ordinance, 1979.
4. During the hearing of the election petition, both the parties agreed to the decision of the election petition on recount of the votes. The respondent No.1 took up a categorical stand before the Election Tribunal to the effect that if despite n recount, the election result remained unchanged, the writ petitioner who had already been declared successful will continue to enjoy that status and position.
5. It has already been noticed above that the Presiding officer as per his count had held that both the contesting candidates who are the petitioner and respondent No. 1 before this Court, obtained equal votes i.e. 297 each. In the light of the agreement arrived at between the parties, the Election Tribunal purportedly undertook the exercise of recount of votes held valid by the Presiding Officer mentioned above. The Election Tribunal vide impugned order dated 22nd of March, 1988, held that on recount the total votes cast in favour of ' Mohammad Zaman Khan, respondent No. 1, were found to be 298 as against 297 described by the Presiding Officer. His election symbol was lion. Out of these, six votes were found to be invalid and thus were rejected with the result that he was held to have secured 292 valid votes.
6. In respect of Painday Khan, writ petitioner, -who was allotted election symbol of chair, the Election Tribunal noted that his valid votes were shown in the result as 297. On recounting of these votes, seven votes were found to be invalid and after exclusion of these votes from the count, the valid votes secured by him worked out to be 290. In this manner, respondent No. 1 was held to have obtained two votes more than the writ petitioner. The Election Tribunal observed that the 26 votes rejected by the Returning Officer as invalid were being treated as such and that there was an addition of 13 invalid votes to this number. The Election Tribunal in its impugned order further recited that none of the parties had objected to the recount. In this manner, Mohammad Zaman Khan was declared to have won the election by a majority of two votes. This impugned order of the Election Tribunal and the findings recorded therein are being called into question before this Court as invalid and not in conformity with law.
7. We have heard the learned counsel for both the sides at considerable length and perused the record.
8. We have given our anxious consideration to the points arising for determination in the present writ petition. On a fair reading of the impugned order under challenge before us, we find that it has failed to record reasons for holding 13 votes to be invalid. This was not a question of mere subjective satisfaction of the Tribunal which was performing, if not judicial, quasi judicial functions.
The Election Tribunal will be clothed with jurisdiction to hold a ballot paper as invalid, if it finds that the conditions spelt out by the Rules for rendering votes as invalid have been shown or found to exist in the course of recount and scrutiny by him. In the absence of such a finding, the decision would smack of arbitrariness. This Court is equally handicapped in determination of the question whether the Tribunal has acted m valid exercise of its power and rendered decision in conformity with law. In other words, non-reasoned order would amount to an indirect attempt to whittle down the power of this Court to undertake judicial scrutiny of the actions impugned before it under Article 199 of the Constitution. This failure on the part of the Election Tribunal, therefore, " constitutes a vitiative infirmity in the order
9. Apart from the above aspects of the matter, once the Election Tribunal had undertaken the recount, it was also required to scrutinise the 26 ballot papers which were declared invalid by the Presiding Officer. The counting done by the Presiding Officer was subject to scrutiny by the Election Tribunal at the time of recount. Nothing of the sort has been done by the Election Tribunal and thus a case of failure to exercise jurisdiction is made out.
10. We may here also dispose of the point raised by learned counsel for the petitioner regarding the effect of the consent of the parties for a recount. We are unable to read into the consent, a sanction for the Election Tribunal to act in a manner it liked. No words of this nature are to be found in the consent recorded by the Presiding Officer. Therefore, the Tribunal was not absolved from its duty to carry out a lawful recount as ordained by law. The agreement merely amounted to giving up other pleas and to have the fate of the petition decided on the sole ground of recount of valid votes cast in favour of both the contesting candidates.
11. The learned counsel then sought to rely do the fact that the Election Tribunal had been careful in making the parties sign under the impugned order. Nothing turns on this circumstance as mere signatures of the parties or counsel on the margin or below the impugned order by itself would not have the effect of curing the legal defects from which the impugned order or the legal proceedings suffered. This is nowhere found recorded by the parties and their counsel that they would accept the order of the Election Tribunal to be correct irrespective of the circumstance whether it was illegal, void or without jurisdiction. Even otherwise it will be advantageous to refer to recent pronouncement of the Supreme Court in the case of Norjabat A.I v. Bashir Ahmad etc. (PLD 1987 SC 16) and the relevant observations are as under:-- "Where a consolidation scheme is found to be so offensive to the requirements of the law, appears on the face of it to be unjust and unfair the Consolidation authorities are under a duty to reject it even though it be based on compromise or undertaking among the parties or most of them.
Though these observations were made in respect of a case arising out of Consolidation of Holdings Ordinance 1960, the fact remains that the Supreme Court has held that actions taken by the statutory functionaries which are offensive to the requirements of law or appear on the face of it to be unjust and unfair, are liable to be rectified by such functionaries even if they are based on compromise or undertaking among the parties or most of them.
12. In the above light, therefore, we are unable to spell out a licence for the Election Authority by the parties to act in the manner it pleased. Being a creature of the Statute, the Election Tribunal was bound to act in the manner prescribed by the Rules and not to assume to itself a power or jurisdiction which the framers of the law had not conferred upon him. Even otherwise arbitrary or whimsical orders which are shorn of reasons and findings reflecting non---application of mind are not sustainable in law.
13. For all these reasons, we have no hesitation in declaring the impugned order of the Election Tribunal as being without lawful authority and of no legal effect. The case is remanded to the Election Tribunal to decide it afresh after hearing both the parties in conformity with the mandatory provision of law. For removal of any doubt, it is observed that the Election Tribunal shall carry out the scrutiny of all ballot papers cast at the election to determine their validity or invalidity including the 26 ballot papers rejected by the Presiding Officer. It shall give reasons for its findings in that behalf. The Election Tribunal shall decide this matter expeditiously. In the circumstances, there shall be no order as to costs.
H.B.T./P-93/L