' M. JAVED BUTTAR, J.---This Constitutional petition is directed against the order dated 1-6-1998 of the Punjab Local Councils Election Authority whereby the re-poll of the Electoral Unit No,79, Zilla Council, Kasur has been announced, on the petition of respondent No,4, under section 17 of the Punjab Local Government Ordinance, 1979.
2. The relevant facts are that the petitioner and respondent No,4 were candidates alongwith four others for the election of Electoral Unit No,79, Zilla Council, Kasur. On 5-5-1998, respondent No,2/Returning Officer allotted the election symbol of tractor to the petitioner and of sewing machine to respondent No,4. The symbol of sewing machine is reserved for the minority seats and the same was not present on the ballot paper and according to the report of Returning Officer submitted by him before the Election Authority, the mistake was discovered on 20-5-1998 i.e, the election day and fresh symbol of motorcar was allotted to respondent No,4, which was allegedly freely announced to all the voters at the six polling stations. The respondent No,4 contested the election on the newly allotted symbol of motorcar and at the end of the election. The Presiding Officers compiled the results of all the polling stations and the Returning Officer tabulated the same which was duly announced, according to which the petitioner Sharafat Ali Nisar was declared as the returned candidate for having secured 919 votes, whereas the respondent No,4 obtained 633 votes and in the contest, came at No,4.
3. After the election, on 22-5-1998, respondent No,4. Instituted the petition under settion 17 of the Punjab Local Government Ordinance, 1979 seeking the setting aside of the entire election. The petition was contested and through the impugned order dated 1-6-1998, the Election Authority held that under rule 23 of the Punjab Local Councils (Elections) Rules, 1979, the Returning Officer was under obligation to allot one of the specified symbols on the ballot paper to each of the contesting candidates and as the specified symbol was not allotted to respondent Noor Din and because an unspecified symbol of sewing machine (reserved for minorities) was allotted to him, the same was not present on the ballot paper, therefore, it was an illegality and due to this illegality, the Election Authority announced repoll of the Electoral Unit No,79, Zilla Council, Kasur which is impugned in this petition. In this very order it is narrated that on 20-5-1998, the Secretary, Election Authority directed the Returning Officer on telephone to stop the election, the said order was not complied with and, therefore, the Returning Officer was directed to personally appear before the Election Authority on 5-6-1998 to explain the reason of noncompliance. The Returning Officer in his written explanation (copy attached as Annexure B) stated that the symbol of sewing machine was allotted to respondent No,4 on 5-5-1998 inadvertently and after the lapse of 15 days, the candidate appeared before the Assistant Commisioner/A.R.O., Chunian on 20-5-1998 i.e, the election day and pointed out that he has been allotted a symbol of sewing machine and the matter was resolved and the Assistant Commissioner, Chunian allotted a symbol of motorcar to respondent No,4 on request and respondent No,4 took part in the election on the newly allotted symbol and the order dated 5- 6-1998 of the Election Authority also shows that the Returning Officer stated before the Election Authority that he was not aware of the telephonic message of the Secretary, Election Authority for stopping the and, therefore, order of Secretary, Election Authority was not complied with. The Election Authority accepted the explanation of the Returning Officer is genuine and closed the matter.
4. It is contended by the learned counsel for the petitioner that it is an admitted position that the polls were not stopped, the election did take place, the votes were counted and the Presiding Officers declared the results of the individual polling stations and after tabulation of the same, the election results were announced by the Returning Officer declaring the petitioner to be the returned candidate and thereafter the Election Authority became functus officio as the Election Authority cannot declare the election as void on any illegality whatever and the only remedy available to an aggrieved candidate after the announcement of the results of the election and after declaration of the same, is an election petition before the Election Tribunal. In support of his contentions, learned counsel has referred to section 17(2) of the Punjab Local Government Ordinance, 1979 as amended/added by Punjab Ordinance No,XII of 1979 w.e.f, 29-10-1979, which lays down that the Election Authority cannot inquire into any matter or pass any order in respect of anything relating to election which can be called in question before an Election Tribunal by an election petition under the Punjab Local Government Ordinance and elaborating upon this argument, learned counsel has referred to rule 28 of the Election Rules, 1979 framed under the Punjab Local Government Ordinance, 1979 whereunder the Election Authority can order a fresh poll only if 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, the poll has been stopped by the Presiding Officer and the Returning Officer has been informed accordingly by the Presiding Officer.
Under this very rule, the Election Authority can declare the poll at a particular polling station to be void and direct a fresh poll at that polling station where the poll has been stopped by the Presiding Officer or where 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 tampered with to such an extent that the result of the poll at that polling station cannot be ascertained. Learned counsel has thus argued that the Election Authority can order fresh poll only under the situations envisaged in rule 28 of the Election Rules and admittedly such a situation did not exist in the present case. Learned counsel has then referred to rules 13, 14 and 15 of the Election Petitions Rules, 1979 to contend that an election can be challenged before the Election Tribunal on the ground that any person including the Returning Officer has not complied with the provisions of the Ordinance because according to the learned counsel, at the most, the respondent's case is that rule 23 of the Election Rules has be violated because a specified symbol was not allotted to him by the Returni Officer and thus election suffers from an illegality. Learned counsel has all placed his reliance on Muhammad Tufail v. Punjab Local Councils Election Authority and 4 others (1990 CLC 68), The Punjab Local Councils Election Authority, Lahore v. Malik Muhammad Aslam and another (1982 SCM R 108) and Emmanuel Masih v. The Punjab Local Councils Election Authority at others (1985 SCM R 729).
5. On the other hand, while vehemently opposing the petition, learned counsel for respondent No,4 have submitted that the Election Authority has correctly ordered the repoll of Electoral Unit No,79, Zilla Council, Kasur because no election in the eye of law took place. In support of this contention, has been submitted that the Returning Officers in violation of Rule 23-1(a) of the Election Rules, 1979 failed to allot a specified symbol to respondent No,4 and unspecified symbol of sewing machine allotted to him was not present on the ballot paper and therefore, in the eye of law, no election took place because the election is contested on symbols. Learned counsel have also argued that on 20- 5-1998, the Assistant Returning Officer changed the symbol and allotted a symbol of motorcar to respondent No,4 whereas under rule 23 a Returning Officer can allot a symbol and, therefore, even if it is to be considered for the sake of arguments that respondent No,4 joined the contest on the symbol of motorcar, the same cannot be termed as holding of the election because the symbol was allotted by an unauthorised person. It is submitted next that under section 24 of the Local Government Ordinance, only a candidate can make an election petition before the Election Tribunal to call in question the election and respondent No,4 cannot be termed as a candidate because a specified symbol was not allotted to him and a person becomes a candidate only when a symbol is allotted to him in accordance with law. It has also been argued that under rule 23 of Punjab Local Councils (Election Petitions) Rules, 1979, the election petition can be presented before the Election Tribunal only after the election result has been published in the official Gazette and not before that and on 22-5-1998, respondent No,4 correctly invoked the jurisdiction of the Election Authority because till then the results had not been published in the official Gazette and the Election Authority on 1-6-1998 correctly ordered re-poll because till then also, the result had not been published in the official Gazette and, therefore, in any case respondent No,4 at the relevant time had no other remedy available to him and to hold it otherwise would result in declaring an unsuccessful candidate to be without any remedy for the period from the holding of the election till the election result is published in the official gazette and on this basis, Mr. Irshad Ahmad Qureshi, Advocate, one of the counsel of respondent No,4, has criticized a judgment delivered by a Division Bench of this Court in Muhammad Tufail v Punjab Local Councils Election Authority and 4 others reported as 1990 CLC 68. In the last it has been submitted on behalf of respondent No,4 that there is distinction between poll and election and the Election Authority is competent to order re-poll if the polls suffer from an illegality even if it is held that the Election Authority cannot declare the election as void.
6. After having heard the learned counsel for the parties, for the reasons recorded below, we are of the view that the impugned order passed by the Election Authority of repoll of the abovesaid electoral unit cannot be sustained in the eye of law because the same is without jurisdiction.
7. The provisions of section 17(1) of the Punjab Local Government Ordinance, 1979 provide a general supervisory jurisdiction to the Election Authority, authorize it to issue such instructions and exercise such powers including the power to review any order passed by an officer under the Ordinance or the Rules, or make such a consequential order as may, in its opinion, be necessary for ensuring that the election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and Rules, and to avoid any confusion in regard to the jurisdiction of the Election Authority to interfere in the post election disputes, subsection (2) of section 17 of the Ordinance was added by the Punjab Ordinance XII of 1979 w.e.f, 29-10-1979 which explicitly provides that nothing contained in subsection (1) shall be construed to mean that the Election Authority has power to inquire into any matter or pass any order in respect of anything relating to an election which can be called in question before an Election Tribunal by an election petition under the Ordinance, meaning thereby that if an aggrieved person wants to challenge the election and if he wants to invoke the general supervisory jurisdiction of the Election Authority under subsection (1) of section 17 of the Ordinance, on any ground whatever including the illegalities committed by any of the public functionaries, he has to establish that the pleas, illegalities, irregularities or the issues being raised by him cannot be urged by him in an election petition before an Election Tribunal because if the same grounds can become the basis of an election petition and if the Election Tribunal has the jurisdiction to give a decision thereon, then the jurisdiction of Election Authority is clearly barred.
This shows that post election disputes cannot be referred to Election Authority as they fall within the exclusive jurisdiction of the Election Tribunal, except the situations mentioned in Rule 28 of the Election Rules, 1979 where the poll at a particular polling station is stopped due to the reasons mentioned in the rule and the election does not take place and in such a situation, the Election Authority has been empowered to order re-poll at that particular polling station. In the present case, situations mentioned in the abovesaid Rule 28 do not exist to attract the jurisdiction of the Election Authority because polling was not stopped and the votes were polled at all the polling stations and the results of the votes polled were also declared by all the Presiding Officers and the same were tabulated by the Returning Officer and the petitioner was notified as the returned candidate. It may also be mentioned here that under Rule 28 (supra), the Election Authority can order re-poll of that particular polling station on which the polling has been stopped and the election did not take place due to the situations mentioned in the said rule and the Election Authority has not been vested with the authority to order re-poll of the entire electoral unit even if it is established that polling did not take place at a particular polling station. Learned counsel for the respondent have tried to argue that at one polling station (Polling Station No,581, Government Boys School, Tibbi Diyal Singh), the polling did not take place because of the report of the Presiding Officer to the effect that polling had been stopped due to non-availability of the symbol on the ballot paper. We have checked the record and are of the view that even at that polling station, the votes were polled and the stoppage of polls was only temporary, because the Presiding Officer declared the result of that polling station as well as it is no body's case that election did not take place at that particular polling station.
8. The contention of the learned counsel for the respondents that in the eye of law no election Cook place because the snecified symbol was not allotted to respondent, has no force because it is an illegality in the holding of the election, which is being pointed out by the contesting respondent, due to the failure of the Returning Officer to act in accordance with Rule 23 of the Election Rules and any illegality in the holding of the election or any lapse on the part of a public functionary cannot mean that no election took place because this ground can also be taken and urged in an election petition before the Election Tribunal as under Rule 15 of the Election Petition Rules, 1979, the Tribunal has the jurisdiction to 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."
The words "any person" include a public functionary, especially the one who is entrusted with the responsibilities to conduct the election fairly, justly and honestly including the Returning Officer who has failed to perform his duties in accordance with law and in our view, under this rule, an election can be challenged also on the basis of the collusion of any public functionary with the returned candidate if it is established that such a collusion has materially affected the result of the election.
9. The abovementioned would show that all the pleas which were urged by the respondent before the Election Authority and have been asserted before this Court can be competently raised and form the basis of an election petition and, therefore, the matter falls within the exclusive jurisdiction of the Election Tribunal. In Emmanual Masih v. The Punjab Local Councils Election Authority and others (1985 SCM R 729), the Honourable Supreme Court while considering the amendment made in section 17 of the Punjab Local Government Ordinance, 1979 through the addition of subsection
(2) of the same section by Ordinance XII of 1979 (i.e, on 29-10-1979) held: ' "The net result of amendment was that while the Election Authority way given extensive power to ensure impartiality, honesty and fairness,while the elections were being conducted, it (i.e, Election Authority), became functus officio after the elections were over, and the validity of the elections could then be challenged by aggrieved persons only through election petitions, on grounds which during the pre-election period could be made the basis of complaints to the Election Authority under section 17(1)."
' Similarly, in Hayat Muhammad and 4 others v. Election Authority and others (1985 SCM R 1909), the apex Court held that the Election Authority has no power to pass order for fresh poll. In Punjab Local Councils Election Authority, Lahore v. Malik Muhammad Aslam and another (1982 SCM R 1086), it was held that the matters amenable to question by ways of election petition are debarred from jurisdiction of Election Authority. In Muhammad Tufail v. Punjab Local Councils Election Authority and 4 others (1990 CLC 68), a Division Bench of this Court held that once election is held and result of election is submitted by a Presiding Officer to Deputy. Commissioner for publication, then the election can only be challenged through an election petition and where the election was illegal or void, that issue is also to be decided by the Election Tribunal and the Election Authority lacked the jurisdiction to interfere because of the express exclusion by section 17(2) of the Punjab Local Government Ordinance, 1979. In this judgment, the argument that due to non-publication of the result in the official Gazette, the aggrieved person could not invoke the jurisdiction of the Election Tribunal and thus the Election Authority had the jurisdiction to interfere during the intervening period as otherwise the aggrieved candidate would be remedyless during that period was also repelled and it was held that hurry and non-awaiting of event for commencement of an action will not confer jurisdiction on Election Authority which it did not possess, nor denude Tribunal which would have exclusive jurisdiction on commencement of action. In our view, the correct law was laid down by the honourable Judges, which is based on sound reasons because non-publication of the result in the official Gazette would in any case, not confer jurisdiction on the Election Authority which has been expressly ousted by the statute. Furthermore, no loss is likely to occur to the challenger of election because the returned candidate cannot act as a councillor, unless and until the election result is published in the official Gazette.
10. For the reasons given above, we have come to the conclusion that since the election was held, whether it was illegal or void, it was challengeable through an election petition before an Election Tribunal and thereafter the Election Authority became functus officio and lacked the jurisdiction to interfere. The impugned order dated 1-6-1998 of the Election Authority of ordering re-poll of Electoral Unit No,79, Zilla Council, Kasur is declared to be without jurisdiction and is set aside. This petition is thus allowed but, in the circumstances, the parties will bear their own costs.