The relevant facts for the decision of this appeal are that the appellant and respondents Nos. 5 to 9 contested the election from Ward No. 190 Sanda Kalan (Zainan Park), Lahore. The polling of the election was held on 20th of May, 1998. According to the result the appellant had obtained 667 votes, therefore, he was declared as elected vide Notification dated 23rd of May, 1998. The respondent No. 5 represented to respondent No. 1 that he secured 456 votes from Polling Station No. 81 which the Returning Officer by mistake showed 56 only. This way 400 votes polled in favour of the respondent No. 5 were not counted in preparing the result. The respondent No. 1 sent for a report from the Returning Officer who confirmed the mistake pointed out by respondent No. 5. The respondent No. 1 accordingly directed issuance of fresh notification declaring respondent No. 5 as elected. The result was that notification dated 23rd of May, 1998 declaring the appellant as elected was cancelled and instead Notification dated 25th of May, 1998 declaring respondent No. 5 as elected was issued. This was challenged through Constitutional petition. The same was contested by respondents Nos. 1 to 5. The learned Single Judge in Chambers after hearing the arguments dismissed the same vide judgment dated 17th of August, 1998, therefore, present appeal.
2. The learned counsel for the appellant argued that respondent No. 1 had wide powers under Section 17(1) of the Punjab Local Government Ordinance, 1979 but the same have been curtailed and abridged with the addition of Clause-2 of Section 17. The result is that the matters, which are within the domain of Election Tribunal, have been excluded from the purview of respondent No. 1. It is added that actually the order was not passed by the Election Authority or its Members but by its Secretary who has no powers u/S. 17(1). It is argued that as per Rule 5 of the Election Petition Rules the Notification of election of returned candidate once issued could not be rescinded by the same authority. It is argued that once the appellant was declared elected, therefore, notification could not be cancelled, set aside or rescinded by any authority except by the Election Tribunal that too after the conclusion of trial of the election petition. In this behalf learned counsel has referred to the judgments reported as Emmanual Masih v. The Punjab Local Councils Election Authority' and others (1985 SCM R 729), Muhammad Tufail v. Punjab Local Council Election Authority through its Secretary and others (1990 CLC 68), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396), The Punjab Local Councils Election Authority', Lahore v.
Malik Muhammad Aslam and another (1982 SCM R 1086), Ghulam Mustafa Jawi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCM R 1299) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 Supreme Court 331).
3. We have given our anxious consideration to the arguments of the learned counsel,. Gone through the record, relevant provisions of law as well as the precedents. The matter was taken to the Honourable Supreme Court through Civil Petition No. 1051/L-98 which was decided vide judgment dated 28.7.1998. The Honourable Supreme Court after hearing the parties observed as under:- "Learned counsel for the parties thus have limited the controversy to the resolution of the question regarding competence or otherwise of the Election Authority to notify the petitioner as successful candidate. This question should appropriately be left to be decided by the learned Judge of the High Court rather than resolving it in these proceedings by this Court. Unfortunately the proceedings before the High Court have been lingering on many dates."
The controversy has been limited. This way the question for determination is whether respondent No. 1 was vested with any power to modify order passed in the process of election by mistake and under some misapprehension. The respondent No. 5 pleaded before respondent No. 1 that a large number of votes polled in his favour have not been counted at all. It was not a case of rejection of votes as invalid etc. This was failure to count 400 votes in favour of respondent No. 5. The contention was found correct, therefore, the notification of election of the appellant as returned candidate was cancelled and instead respondent No. 5 was declared elected. Decision of this controversy depends on the true of Section 17 of the Punjab Local Government Ordinance, 1979. The same reads as under:- "Election Authority to ensure fair elections, etc.-( 1) The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the rules, and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly in accordance with the provisions of the Ordinance and the rules."
4. It is clear from reading of provision of law that it is the duty of respondent No. 1 to ensure that an election is conducted honestly, justly, fairly and in accordance with the provisions of the Ordinance and rules framed thereunder. This included declaration of result on the basis of votes polled. The first notification in favour of the appellant was declared on the basis of incorrect data, therefore, it could not be treated as a result of election. The respondent No. 1 after verifying the contention of the respondent No. 5 proceeded to hold that respondent No. 5 had in fact obtained 962 votes, therefore, it rightly directed cancellation of the first notification in favour of the appellant and issuance of fresh notification. This was not an election dispute within the jurisdiction of an Election Tribunal.
5. The matter can be looked from another angle that the appellant has some or other been declared illegally as elected. We are not saying that it was as a result of collusion or Attribute any sinister motive to the appellant but the fact remained that he was wrongly treated as a candidate securing highest votes. The anxiety of the appellant is now to protect the illegal benefits. This fact alone was sufficient to refuse relief to him in Constitutional jurisdiction.
6. In the case of Ch. Abdul Hamid referred to by the learned Single Judge in Chambers it was also one of the questions whether candidate securing less votes or the one who had secured the highest votes should be asked to invoke jurisdiction of the Election Tribunal. The Constitutional jurisdiction being the jurisdiction of equity and good conscious, therefore, the appellant should file the election petition against the election of respondent No. 5. We may observe that the Presiding Officer did not compile the result correctly and faithfully. The result complied by him was patently incorrect and incomplete, therefore, could not have furnished basis for issuance of Notification dated 23rd of May, 1998. The respondent No. 1 in exercise of jurisdiction under Section 17(1) of the Ordinance, 1979 correctly interfered and ordered issuance of fresh notification.
7. The cardinal principle is that nobody should suffer on account of official acts. This is a case of gross negligence on the part of the Presiding Officer. We put to the learned counsel that if he had been declared as elected instead of the appellant and other contesting candidates then was it not the duty of respondent No. 1 to correct this mistake the moment the same was discovered. The manner the executive acts are done this is quite possible, therefore, it was the duty of respondent No. 1 to ensure redress of grievance of respondent No. 5. We in this behalf may refer to the case of Malik Muhammad Aslam (supra). The relevant portion of the judgment reads as under:- "11. 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 to ensure that an election is conducted honestly, justly and fairly in accordance with the provisions of the Ordinance and the Rules, is a recent phenomena in Election Laws, intended to see that in the conduct of elections there should be fairness, impartiality and honestly and that the provisions of the law are not violated. Thus, sub- section (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 irregularities committed during the course of the elections would not be amenable to correction by the Election Authority.
12, 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 Authority under sub-section (1) and those matters which are to be enquired into by the Election Tribunals, sub-section (2) of Section 17 was added. This is evident from the terms of sub-section (2), which provides that ' nothing contained in sub-section (1) shall be construed to mean..." (underlining is ours)-herein italicized). The use of the word "construed" is clearly intended to clarify further that this provision is in the nature of a declaratory or a clarificatory provision, whereby the law-maker has interpreted sub-section (1) of Section 17. So as to ensure that the Election Authority remains on the right path. 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 sub-section (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 official 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. A similar view has been taken by this Court in James Ilyas Masih v. Punjab Local Councils Election Authority.
Lahore and others (l) and Ahmad Khan v. Punjab Local Council Election Authority and others (2)."
8. Nobody bothered to find out whether result has been correctly tabulated by the Presiding Officer and transmitted to the Deputy Commissioner. This type of negligence may give rise to evil practice of hijacking the result of election. In this behalf reference can be taped to the judgments reported as Ch. Fateh Jang v. Punjab Election Commission and others (1990 CLC 1574) and The Punjab Local Councils Election Authority, Lahore v. Malik Muhammad Aslam and another (1982 SGMR 1086).
Therefore, in the circumstances, if the respondent No. 1 has not rescinded the illegal notification then it would have failed to discharge its legal obligation to conduct election justly and fairly.
9. The upshot of this discussion is that there is no merit in this appeal. The same is dismissed in limine.