' In both the above-captioned two writ petitions the common point is involved and both can be disposed of through a single judgment, thus both the aforesaid writ petitions will be disposed of through this single judgment.
2. In Writ Petition No,48 of 1992, Gul Sher Khan petitioner has challenged the validity of the order of the Election Tribunal, Kotli dated 4-6-1992, whereby the election of the petitioner as a member of District Council has been declared void and order of the repolling on the Polling Stations Nos.112 and 116 has been passed.
3. The succinct facts forming the background of this writ petition are, that the petitioner and the non-petitioners Nos.1 to 4, contested the election for the seat of District Council from the Union Council, Punjarian, District Kotli, for the local bodies election held on 21-11-1991. The Union Council Punjarian was based on 11 polling stations, having one seat for the District Council. The petitioner Was declared as returned for the aforesaid seat. He was notified as such. He secured 1,403 votes whereas, non-petitioner No,1, secured 982 votes. The non-petitioner No,1, filed an election petition before the Election Tribunal, Kotli. This Election Petition was accepted by the Election Tribunal and the election of the petitioner was declared void and an order for repolling on Polling Stations Nos.112 and 116 of the Union Council, Punjarian was passed, on the ground that the polling could not be conducted on the aforesaid polling stations as required under law. Now the petitioner has challenged the order of the Election Tribunal through the instant writ petition.
4. The precise facts forming the background of the Writ Petition No,46 of 1992 are that the petitioner and the non-petitioners Nos.1 to 3, contested the election for the member of the Union Council Banir Ward Hill Kalian, Tehsil and District Kotli. The Hill Kalian consists of two members ward. The petitioner and the non-petitioner No,3 were declared as returned candidate from the aforesaid ward. The petitioner secured 336 votes and the non-petitioner No,3, secured 320 votes. The non- petitioners Nos.1 and 2 remained unsuccessful. The non-petitioner No,1, obtained 279 and non- petitioner No,2, 168 votes as notified by Collector. Two Election Petitions were filed against the petitioner and the non-petitioner No,3 by the non-petitioner No,1. Both the election petitions were consolidated by the Election Tribunal and disposed of through a single judgment. The Election Tribunal accepted the election petition and declared the election of the polling station Primary School Tehalla as void, as the polling could not be continued on this polling station as required under law and ordered for the repolling on the aforesaid polling station. Now this order of the election tribunal has been challenged through this writ petition. In both of the aforesaid election petitions, the only common point involved is that whether the election tribunal is competent to declare the election of a particular polling station void and order for repolling on a particular polling stations or not.
5. The learned counsel for the petitioner Ch. Muhammad Taj, argued that under the rule 62 of the Local Government Election Rules, 1983 (hereinafter to be referred Rules), the election tribunal is only empowered to declare the election void. The Election Tribunal has no powers to declare the election of a particular polling station as void. The Election Tribunal has no jurisdiction to order for repolling on a particular polling station. The Election Tribunal is only competent to declare the election as whole void and order for repolling on the whole of the polling stations. In the instant case, the election tribunal has declared the election of a particular polling station as void and ordered for repolling on the particular polling stations, which is beyond the powers of the Election Tribunal, so the order of the Election Tribunal may be declared to be without lawful authority. He referred the following authorities in support of his contention:--- PLD 1984 SC (AJ&K) 129 and PLD 1986 AJ&K 1.
6. Raja Muhammad Siddique Khan, the learned counsel for the non-petitioner, while controverting the arguments of the learned counsel for the petitioner argued, that the Election Tribunal has declared the election of the petitioner void and has ordered for repolling on particular polling stations. The election tribunal is competent to do so. He further contended that if the election tribunal is competent to declare the election of the whole of the polling stations of the ward void, then by passing an order pertaining to the particular polling station, the election tribunal has not exceeded the jurisdiction conferred upon it, rather the Election Tribunal has used the less powers than the powers available to him, so the impugned order does not come within the ambit of an order without lawful authority. He referred the following authorities in support of his contentions:--- PLD 1985 AJ&K 83 and PLD 1986 AJ&K.45(c).
7. The learned counsel for the non-petitioner in Writ Petition No,46 of 1992, Ch. Muhammad Siddique also owned the arguments advanced by Raja Muhammad Siddique Khan and further argued that the Election Tribunal was competent to decide rightly or wrongly and no writ petition lies on the ground, that the erroneous conclusion has been drawn by the Election Tribunal. A tribunal having jurisdiction is competent to decide rightly or wrongly and the impugned order cannot be termed as an order without jurisdiction.
8. I have heard the learned counsel for the parties and perused the record.
9. The perusal of the record shows, that in petition titled Gul Sher Khan v. Muhammad Illyas and others, the allegation against the election of the petitioner pertaining to the illegality committed at the Polling Stations Nos. 112 and 116 was proved. In the petition titled Tanweer Hussain v. Rehmat Ali and others, the allegation pertaining to the illegality committed at the Polling Station No,99 was proved and this is the reason that the Election Tribunal has declared the election of the particular polling stations as void.
10. The Election Tribunal can declare the election of a returned candidate void on the grounds incorporated in Rule 60 which is as under:---
(a) The nomination of the returned candidate was invalid.
(b) On the nomination day the returned candidate was not qualified for or was disqualified from being elected for the ward;
(c) the failure of any person to comply with the provisions of the Ordinance or these rules has materially affected the results of the election, or
(d) the results of the election has been materially affected by the improper acceptance or rejection of any nomination paper, or,
(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 the returned candidate has been procured or induced by any corrupt practice, illegal act;
(g) a corrupt practice or illegal act has been committed by returned candidate or his authorised agent or by any other person with the connivance of the candidate or his authorised agent; or
(h) corrupt practices, material irregularities, illegal payments, employments or hirings have so extensively prevailed at the election that they may be reasonably supposed to have affected the result."
11. According to rule 60(c), the Election Tribunal shall declare an election to be void, if he is satisfied that failure of any person to comply with the provision of rules has materially affected the result of the election. In the instant case, it was proved that the Presiding Officers have failed to comply with the provisions of rules 29 and 30 at the Polling Stations Nos.112 and 116 and the Polling Station No,99.
In election petition against Gul Sher Khan the allegation was that the polling could not be continued uninterruptedly for eight hours as required under rule 29. The polling could not be continued due to the firing and quarrel between the parties. In petition titled Tanveer Hussain v.
Rehmat All and others the allegation proved was that the polling could not be continued on Polling Station No,99 for the prescribed period uninterruptedly as required under rule 29. Prior to the announcement of the result an information was given to the Returning Officer by the Polling Officer, that the polling could not be continued on this polling station due to the firing and quarrel between the parties.
12. Now the question arises that when the polling could not be continued on the aforesaid polling station as required under rule 29, then what was the requirement of the law. Rule 30(2) envisages that when the polling at the polling station has been stopped or interrupted and could not be resumed and the Returning Officer has reported the circumstances to the Election -Commissioner, then the Election Commissioner shall direct for fresh polls at that polling station. To have a true perception of the law, it is necessary to reproduce the Rules 29 and 30 which are as under:--- "29: Hours of poll and extension in polling period.---(1) A polling station shall remain open for such hours as may be specified in the polling programme: ' Provided that the total period allotted on any one day for polling shall not be less than eight hours and shall be uninterrupted by any interval.
(2) If at the hour of close of poll, there have been left at the Polling Station electors who have still to cast their ballot, the polling officer may extend the polling hours by such period as he may deem. necessary.
(3) If for any reason it is not possible to open the polling station at the appointed hour, or if by reason of disorder at the polling station or for any other reason the Presiding Officer deems it necessary to stop the polling for a certain time, the Presiding Officer shall keep the polling station open for a further period equal to the period that elapsed between the hour appointed for opening of the polling station and the hour at which it was actually opened or the time during which polling was stopped as the case may be.
30. Stopping of the poll.---(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that has done so if;
(a) the polling 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 tampered 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 b the .ollin 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) Where the Election Commissioner/Authority orders a fresh poll under sub-rule (2), the Returning Officer shall, with the approval of the Election Commissioner/Authority:---
(a) appoint a day for a fresh poll and fix the place at which such fresh poll shall be taken; and
(b) give public notice of the day so appointed and the place and hours so fixed.
(4) At a fresh poll taken under sub-rule (3) at a polling station, all voters entitled to vote thereat shall be allowed to vote and no vote cast at the poll stopped under sub-rule (1), shall be counted and the provisions of these rules and orders made thereunder shall apply to such fresh poll.
13. Rule 29 suggests that the total period allotted on any one day for polling shall not be less than eight hours and shall be uninterrupted by any interval. Rule 30 conveys that if the Polling at the Polling Station at any time is interrupted or obstructed for reasons beyond the control of the Presiding Officer and it cannot be resumed during the polling hours fixed under Rule 29, then the Presiding Officer of the polling station will stop the poll and inform the Returning Officer. The Returning Officer shall immediately report the circumstances to the Election Commissioner, who shall direct for a fresh poll on that particular polling station. In the instant case, in Writ Petition No,48 of 1992, it was proved before the Election Tribunal and the Election Tribunal reached the conclusion, that due to the firing and quarrel the interruption was caused in the polling at Polling Stations Nos.112 and 116 and the polling could not be resumed as required under rule 29. The polling staff did not comply with the rules and did not inform the Returning Officer well in time nor the Returning Officer could inform the Election Commissioner. The Election Tribunal has held that the violation of Rules 29 and 30 was committed. When the polling could not be continued on the aforesaid two polling stations as required under rule 29, then it was the duty of the Presiding Officer and the polling staff to inform the Returning Officer. It was also the duty of the Returning Officer to bring the actual position in the notice of the Election Commissioner but they have failed to do so, so the violation of Rules 29 and 30 have been committed. By non-complying the provisions of Rules 29 and 30, the result of the election has been materially affected, because the quantity of the votes at Polling Station No,112 was 797 and at Polling Station No,116 was 896, so the total quantity of the votes on both the Polling Stations was 1693 while only 67 votes could be polled. The petitioner won the election with the lead of 419 votes, so the result of the election was materially affected due to the obstruction caused in the polling hours at Polling Stations Nos.112 and 116.
14. Rule 30 clearly suggests that when the polling could not be continued on a particular polling station for the above stated reason then the re-polling should be conducted on that particular polling station. In the instant case the violation of rules 29 and 30 had been committed. Rule 29 cast a duty upon the polling staff to provide the minimum time of eight hours uninterruptedly to the voters for the right of their franchise. The basic object of rule 29 is to provide the minimum time of eight hours in peaceful atmosphere, so that the electors may use their right of franchise without any fear and pressure. Rule 29 also empowers polling staff of a polling station to extend the polling hours, whenever they found that some electors yet have to cast the votes and they are present at the polling station. The wisdom behind this rule is that no one should be returned from the Polling Station without casting the vote and this is the reason that the polling staff have been empowered to extend the time.
15. Rule 30(1) confers a duty upon the polling staff of any polling station to stop the poll and inform the Returning Officer, when they feel that the polling at the polling station could not be continued uninterruptedly and it is beyond their control to continue or resume the polling. The Returning Officer will inform the Election Commissioner and the Election Commissioner shall direct for the fresh poll at that polling station. The legislature was wise enough to enact the aforesaid rules 29 and 30. The purpose of the legislature was to safeguard the violence and provide a peaceful atmosphere to the voters, so that they may exercise their right of poll without any fear and pressure. This is the reason that it has been provided in the rules, that where the continuing or resumption of the polling is not in the control of the polling staff, then there C will be a re-polling, because the people cannot exercise their right freely under the shadow of the guns and stick or under the guard of the police or any other force. Where the people will apprehend any risk to their lives then why they will go to the polling stations for using their right of vote. The wisdom behind both the aforesaid rules was to provide the maximum period to the electors, so that none should return from the polling stations without casting the votes. There should be a decent peaceful atmosphere on the polling stations, where every one could exercise his right according to his own wishes and his own conscience without any fear and approach.
16. It is most unfortunate that the society in which we are living in this society, we have been indulged so much in mundane affairs that we have left all the moral and ethical values and the practice of going with the Klashnikov and other fire-arms weapons on the polling stations, to harass the other party is developing day by day. Only the voters of that candidate can exercise their right whose men armed with the Klashanikov and fire-arms weapons and other weapons are present on the polling stations to safeguard his voters. In such like atmosphere how an independent polling can be conducted, under the shadow of the fire-arms weapons. When the supporters of any candidate alongwith guns, Klashnikov and other fire-arms will be present on the polling stations, then how the voters of other candidate will cast their votes without any fear and pressure. If this practice will be developed then naturally no noble or gentleman would like to go even to the polling station, nor any gentleman and noble man would like to contest the election. These two aforesaid rules have been enacted for preventing such like practice. The intention of the rules was that where conducting or resumption of polling is beyond the control of the polling staff of the polling station, then there will be a re- polling. The polling staff cannot adopt the coercive methods to control the electors and the supporters of the candidate, but could only advise them to remain peaceful and there should be a peaceful atmosphere at the polling station. There should not be a slightest apprehension of the use of the force or of any other vandalism in the mind of electors, only then they can exercise their right freely. According to rules 29 and 30, the sanctity has been conferred upon only the polling which have been conducted by the polling staff in a peaceful atmosphere and not on the polling conducted under the guard of the police or any other force, or any polling which have been conducted in the atmosphere of violence and vandalism.
17. In the rule 30(2), it has been clearly laid down that the Election Commissioner authority shall direct a fresh polling at thatpolling station. Here the words at that polling station mean only on that polling station on which the polling was stopped and it was beyond the control of the polling staff to continue or resume the polling. If in a constituency, there are ten polling stations and the polling could not be conducted or continue or resumed on the one polling station out of the ten due to the situation of law and order then under Rule 30(2), only the repolling will be ordered on that polling station. No repolling will be conducted on the remaining polling stations, about which no such like complaint has been made. Rule 29 provides the method of the polling and Rule 30 provides a remedy for the violation of Rule 29. In the instant case, there was only complaint about the particular polling stations that on those particular polling stations, the polling could not be continued and resumed and a bulk of voters could not exercise their right of franchise in a peaceful atmosphere due to which the result of election has been materially affected. The repolling was only to be ordered on those polling stations and there was no wisdom for declaring the election of the remaining polling stations also void and for repolling on the polling stations upon which the polling has been conducted fairly, thus the election tribunal has rightly declared the election of the particular polling stations void upon which the polling could not be continued as required under Rule 29.
18. When the polling staff of the particular polling stations stopped polling and could not continue the polling on the aforesaid polling stations and thought it, that it is beyond their control to resume or continue the polling and inform the Returning Officer, then under rule 30, it was paramount duty of the Returning Officer to inform the Election Commissioner who has to hold the fresh election on those polling stations. So the polling staff, the Returning Officer and the Election Commissioner have failed to comply with the requirement of the rules 29 and 30 due to which the result of the election has been materially affected. The remedy for such violation as provided in rule 30(2), was to hold the fresh electio on those particular polling stations, so the Election Tribunal has rightly reached the conclusion that the violation of rule 29 has been committed and the Election Tribunal had rightly provided the remedy to the non-petitioners as prow ded in rule 30. Thus no illegality has been committed by the Election Tribunal.
19. The grievance of the non-petitioners before the Election Tribunal was that it was imperative upon the staff of particular polling stations and the Returning Officer and the Election Commissioner to conduct the repolling on a particular polling station. They failed to comply with this rule and due to their failure the result has been materially affected. Now when due to the non - compliance of Rules 29 and 30, the result has been materially affected due to the non-polling or non proper polling on a particular polling station, then only order of the repelling could be passed about those particular polling stations thus the election tribunal has rightly declared the election of a particular polling station as void and has also passed an order for repelling on the particular polling's stations.
20. It is also pertinent to note, that rule 60(c), suggests that if due to the failure of any person to comply with the provision of rules result of the Election has been materially affected then the Election Tribunal can declare the election void. In the instant case, the Election Tribunal reached the conclusion that due to the failure of complying with the rules 29 and 30 on the aforesaid particular polling stations, the result of election has been materially affected thus the. Election Tribunal was empowered to declare the election of a particular polling station as void.
21. As the other polling stations were concerned, there was no allegation of any illegality or irregularity committed on those polling stations thus there was no fun for declaring the election of those polling stations void too.
22. Rule 62 contains the powers of the Election Tribunal which reads as under:--- 61- Decision of the Election 'I ribunal---(1) At the conclusion of the trial of an election petition, the Election Tribunal shall make an order:---
(a) dismissing the election petition; or
(b) declaring the election of the returned candidate to be void, or
(c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected; or
(d) declaring election as a whole to be void.
(2) At the time of making an order under sub-rule (1) the Election Tribunal---
(a) shall also make an order where the petition alleges any corrupt practice on electoral offence regarding
(i) the finding whether any corrupt practice or an electoral offence has been committed by or with the connivance of, any candidate or his authorised agent, and if so the nature of the corrupt practice or, offence, and
(ii) the names of all persons, if any, found guilty of ;any corrupt practice or an electoral offence and the nature of it together with any recommendation the Election Tribunal thinks proper to make, for the disqualification of any person;
(b) fixing the costs to be paid and specifying the person by and whom such costs are to be paid.
(3) No person shall be named in an order under sub-rule (2) unless:---
(a) he has been given notice to appear before the Election Tribunal to show cause why he should not be so named; and
(b) he has appeared in pursuance of the notice and he has been given an opportunity of cross- examining any witness who has already given evidence against him and of calling evidence in his own defence and of being heard".
23. According to the aforesaid rule the Election Tribunal can dismiss the election petition or can declare the election of returned candidate void or while declaring the election void can declare the petitioner or any other person as to be elected or can declare the election as a whole void.
24. As clause (b) of the Rule 62 is concerned, it deals with the eventuality as arisen in the instant case. According to clause (b) the Election Tribunal can declare the election void. It does not contain that the Election Tribunal has to declare the election as a whole void, but it conveys that the Election Tribunal can declare the election as void. If these rules shall be read alongwith the rule 60, clause (c), then it further clarifies that where any non-compliance of rules has materially affected the result of the election then the election can be declared void. It does not contain that whole of the election is to be declared void, but when the Election Tribunal reached the conclusion, that on a particular polling station corrupt practice or illegalities have been committed and due to that the result of the election has been materially affected, then the Election Tribunal can of course, declare the election of that particular polling station as void and can order for repolling on that particular polling station.
25. Even otherwise, there is no wisdom behind it that if the voters of particular polling station have been obstructed and have not been allowed to cast their votes and while the voters of the remaining polling stations have exercised their right of franchise in a peaceful atmosphere, then why they should be once again invited for the polling on the basis of the wrong perpetrated by the polling staff of a particular polling station. The Election Tribunal has the jurisdiction to declare the election of a particular polling station void on the basis of the non-compliance of the rules. Even otherwise, the remedy for non-compliance of Rule 29, has been provided in Rule 30 and in the instant case, the Election Tribunal reached the conclusion that the polling could not be continued on the aforesaid polling stations as required under Rule 29, so the Election Tribunal has rightly provided the remedy available for the non-compliance of rule 29, as provided in rule 30.
26. According to rule 62, the Election Tribunal can declare the election as void or can declare the election as a whole to be void. It means that the Election Tribunal can declare the election of a particular polling station as void and there is no bar for declaring the election of a particular polling station as void mater: Illy affecting the result of the election.
27. The case-law referred by the learned counsel for the parties has no bearing on the facts of the present case.
' The nutshell of the al: ove discussion is that finding no force in these writ petitions, these are hereby dismissed with costs.