' The relevant facts for the decision of this Constitutional petition are that the petitioner and respondents Nos.2 to 5 contested Local Council Elections, 1998 from Ward No,12, Municipal Corporation, Faisalabad. The petitioner was declared elected. Respondent No,2 challenged his election through petition which came up for hearing on the file of respondent No,
1. The petitioner contested the same. The learned Election Tribunal accordingly framed following
(1) Whether the petitioner has no locus standi to file the election petition? OPR
(2) Whether the petitioner has filed the petition in violation of Election Rules, 1979 and the verification of the documents has not been done as required by Order 6, Rule 5, C.P.C. And what is its effect? OPR.
(3) Whether the petitioner is estopped by his conduct from filing the petition? OPR
(4) Whether the election fee was not deposited as per rules and no notice was given to respondent No,1 and what is its effect? OPR
(5) Whether the illegal and corrupt practices were committed during the election process as stated in paragraph No,7 of the petition and the election is void? OPP
(6) .Relief. ' and after recording evidence accepted the petition, declared the election as a whole to be void and ordered fresh election vide judgment dated 25-5-1999, which has been challenged through this Constitutional petition.
2. The learned counsel for the petitioner argued that it was not a case covered by Rule 15 of The Punjab Local Councils (Election Petitions) Rules, 1979 (hereinafter to be referred as Election Petitions Rules) because it was not proved that on account of change of two polling stations the result of election has been materially affected. In this behalf, reliance is placed on Abdul Sami v. Abdul Ghaffar PLD 1990 Lahore 378. It is argued that Issue No,5, as framed, did not cover the legal aspect on which the election has been declared void as a whole. It is added that it was a factual controversy and there being no evidence available on record, therefore, the order of the learned Election Tribunal is illegal and not maintainable. In this behalf, reliance is placed on Ameer Abdullah v. Muhammad Yakub and another PLD 1967 Lahore 722 and Hakim Ali and others v.
Deputy Commissioner/Election Tribunal etc. PLD 1982 SC 172.
3. On the other hand, Rana Muhammad Arif, learned Addl. A.-G. Has appeared on Court's call and argued that the polling scheme was illegally and Unlawfully changed by the Returning Officer. It is added that the scheme once finalized cannot be changed in view of Rule 9 of The Punjab Local Councils (Election) Rules, 1979 (hereinafter to be referred as Election Rules) without the prior approval of the Election Authority. It is argued that Issue No,5, as framed, covered all the grounds contained in para. 7 of the election petition.
4. I have given my anxious consideration to the arguments and gone through the record as well as precedents. The election can be declared void as a whole under Rule 15 of the Election Petitions Rules. The same reads as under:- "I5. Ground for declaring election as a whole void.--The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of--
(a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election."
5; Now question in the given circumstances arises whether there was any failure to comply with or violation of the provisions of Ordinance or Election Rules. The learned Election Tribunal held that the Returning Officer changed the two polling stations after the scheme has been approved. The setting up of polling stations is dealt by Rule 9 of the Election Rules, which reads as under:-- "9. Polling station.--(1) The Returning Officer shall within such time. As the Election Authority may fix, publish a preliminary list of polling stations he proposes to provide for an Electoral Unit for the purpose of election and shall specify in such list the area and the voters entitled to vote at each polling station.
(2) The Returning Officer immediately after publishing the list of polling stations referred to in sub- rule (1) shall send a copy thereof to the Election Authority.
(3) The Election Authority may make such alterations in the list referred to in sub-rule (1) as it may deem necessary and shall intimate the alterations if any to the Returning Officer, who shall incorporate them in the list of polling stations and publish the final list.
(3-A) After the publication of the final list no alteration shall be made therein by the Returning Officer without the prior approval of the Election Authority. t4) No polling station shall be located in any such premises which belong to, or are under the control of any candidate."
It is clear from the sub-rule (3-A), reproduced above, that after the publication of final list the Returning Officer is not authorized to make any alteration therein without the prior approval of the Election Authority. The admitted position in this case is that two polling stations were shifted by the Returning Officer without the prior approval of the Election Authority and this change was not duly notified. The learned Election Tribunal rightly concluded that the result of the' election has been materially affected by the shifting of the two polling stations out of six polling stations. The learned counsel for the petitioner vehemently argued that there was no evidence on record to show that the result has been materially affected. The violation of rules being admitted and the requirement of law having been not complied with, therefore, the moment respondent No,2 appeared as P.W.6 and made a statement that two polling stations were wrongly and illegally shifted by the Returning Officer the onus of proof shifted to the petitioner. It was for him to prove that the violation of rules has not materially affected the result. The judgment in the case of Abdul Sami (supra) is not relevant because in that it was pleaded that the elected candidate has committed gross irregularities and fictitious and double votes were created in his favour. It was further alleged that 100 ballot papers were fictitiously cast in his favour. In this background it was held that there was no sufficient evidence to prove violation of Rule 15 of the Election Petitions Rules, reproduced above.
The judgment in the case of Hakim Ali (supra) is also not relevant because in that case a number of voters could not cast their votes and Tribunal set aside the election without holding that the election has been materially affected. The judgment in Ameer Abdullah's case (supra) is also not relevant rather it supports the judgment of the learned Tribunal as whole of the election was set aside for violation of the Election Rules.
6. Now coming to the issue. Issue No,5 was framed with reference to para. 7 while sub-paras. (1) and (2) of para. 7 of the election petition, which read as under:-- "(1) That on the day of polling, polling station were changed without knowledge of the petitioner.
(2) That the polling station were established near . The house of the respondent No,1 at open place, whereas there were many Government Buildings were available in the Halqa."
It is clear from the above that this ground was very much contained in the election petition.
Thereafter, respondent No,2 appeared as P.W.7 and made statement on oath in support of these contentions. The petitioner led whatever evidence which he wanted to produce on all points including this one. Once the parties have adduced 111 the relevant evidence which they wanted to produce then the onus and the form of the issue becomes immaterial. Moreover, no prejudice has been caused to the petitioner, therefore, it would be a case covered by section 99, C.P.C.
7. The upshot of the above discussion is that this petition is dismissed in limine.