' MAULVI ANWAR-UL-HAQ, J.---The petitioner and respondents Nos.4 and 5 contested the Local Council Election to a seat for Zila Council, Narowal, from Electoral Unit No.67. Several Polling Stations were set up. The elections were held on 20-5-1998, at the following Polling Stations:--
(1) Boys High School Kanjroor (No.67/1).
(2) Girls High School Kanjroor (No.67/2).
(3) Boys Primary School Fatehpur Dittan (No.67/3).
(4) Girls Primary School Fatehpur Dittan (No.67/4).
2." According to the petitioner polling was held without any untoward incident/interruption on Polling Stations Nos.67/1, 67/2 and 67/4. However, at Polling Station No.67/3 an attack was launched and ballot boxes and other election material was taken away. The effect of the said incident was that the result of the said Polling Station could not be ascertained. The Presiding Officer got a case registered at the concerned Police Station vide F.I.R. No.62 of 1998 dated 21-5-1998 under section 392/186. P.P.C. In this F.I.R. Respondent No.6 and some other persons were named as accused. On being informed of the said incident the respondent No.1 declared the poll at the Polling Station to be void and directed that a fresh poll be held vide Notification dated 5-6-1998. Regarding the remaining three Polling Stations i.e. Nos.67/1, 67/2 and 67/4 the results were ascertained and duly compiled in the manner prescribed. On 10-6-1998 respondent No.4 filed an application before respondent No.1 praying that a fresh poll be ordered at the Polling Stations Nos.67/1 and 67/2 as well. Respondent No.1 allowed the application vide order dated 5-4-1999. Mr. Nasim Sabir Chaudhry, learned counsel for the petitioner submits that the impugned order is without lawful authority. No circumstances exist or have been proved to exist authorising respondent No.1 to order fresh Poll on the said Polling Station. Ch. Ameer Hussain, learned counsel for respondent No.4, on the other hand, insists that the conditions necessitating a fresh poll were present and the impugned order has been legally passed. The learned Additional Advocate-General also tried to support the impugned order.
2. We have considered the submissions of the learned counsel for the parties and have gone through the impugned order as well as record. Respondent No.1 has relied upon Rule 28 of the Punjab Local Council (Elections) Rules, 1979, to support the direction issued by it in the impugned order. It will he advantageous to reproduce the said Rule here:- "28. Stopping of the poll. -Ifat any time, the poll at any polling station is interrupted or obstructed by riot or open violence, or by reason of any natural calamity or circumstances beyond the control of the Presiding Officer, he may by recording the reason thereof stop the poll and inform the Returning Officer accordingly.
(2) Where a poll has been stopped under sub-rule (1) or if any ballot-box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or accidentally or intentionally destroyed, or lost, damaged or tempered with to such an extent that the result of the poll at the polling station cannot be ascertained the Returning Officer shall immediately report the circumstances to the Deputy Commissioner and the Election Authority. The Election Authority may declare the Poll at that polling station to be void and direct a fresh poll at that polling station unless the Election Authority is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station, taken with the results of the polling at other polling stations in the same electoral unit.
(3) Where the Election Authority orders a fresh poll under sub-rule (2) the Returning Officer shall with the approval of the Election Authority fix another date when afresh poll shall be held and in such case all voters shall be allowed to vote at the fresh poll and no vote cast at the poll stopped under sub-rule (I) shall be counted."
3. The learned counsel present agree, sub-Rule (1) of said rule 28 is not attracted as it is nobody's case that poll was stopped at any of the said polling stations. Allegation of respondent No.4 and finding of respondent No.1 is that the ballot boxes were removed unlawfully. We will not enter into the factual controversy as to whether the ballot boxes were in fact removed and if so by whom.
However, it may be noted here that both the Presiding Officers accused the respondent No.4 partly of the said alleged misdeed. A proper reading of the above reproduced rule 28(2) would show that the bare act of unlawful removal of ballot boxes etc. Mentioned in the same would not constitute a ground to order fresh poll. It is the effect of the said acts which is relevant. It is only when it so found that the result of the poll at the polling station cannot be ascertained as a consequence of the said act that the Returning Officer has to report immediately to the Deputy Commissioner and the Election Authority, where upon the Election Authority is empowered to declare the poll at the polling station to be void and to direct a fresh poll. The later part of sub-rule (2) of said Rule 28 further provides that even if at a particular polling station the result cannot be ascertained but if the result of the election as a whole can be determined by the polling that has already taken place at that polling station, taken with the result of the polling at other polling station in the same electoral unit, a fresh poll at the particular polling station may not be ordered.
4. We do not find any reference in the impugned order to any report by the Returning Officer within the meaning of Rule 28(2) (supra) with regard to Polling Stations No.67/1 and 67/2. On the other hand we find that the results at the said polling stations were not only ascertained but were duly compiled and sent to the competent Authority in the manner prescribed.
5. Learned counsel for respondent No.4 tried to argue that the result referred to in Rule 28 (supra), means the result of the whole election as envisaged by Rule 41 of the said Rules. We are afraid, the argument has no merits. The provisions of Rule 28 (supra) are absolutely unambiguous. The results referred to in the said rule are results of the polling at a particular polling station and not the return contemplated by Rule 41 of the said Rule.
6. We therefore, find that the circumstances necessary to empower respondent No.1 to order fresh poll under Rule 28 of the said Rules did not exist. Resultantly the writ petition is allowed and the impugned order is declared to be without lawful authority.