' Through this Constitutional petition the petitioner seeks issuance of writ by directing the respondent/Returning Officer to rectify the mistake in calculation of the votes in accordance with the record or in alternative to rectify the mistake apparent on the record and the petitioner be declared elected to the seat of General Councillor Union Council Ulpa Kalan, Tehsil Pattoki, District Kasur.
2. The brief facts of the case are that the petitioner contested election for the seat of General Councillor for Halqa No,73, Union Council Ulpa Kalan. There were 8 seats for the General Councillors and there were 8 Halqas/Polling Stations namely Raray Bath Bearing Polling Station No,182, Duloo Multani Bearing Polling Station No,178, Ulpa Sudani Kay Bearing Polling Station No,177, Ulpa Kalan Bearing Polling Station No,175, Bath Kala Bearing Polling Station No,180, Bath Kalan Bearing Polling Station No,1,81, Ulpa Kanal Bearing Polling Station No,176, Oojla Kanal Bearing Station No,179. At one of the polling stations namely Oojla Kalan Bearing Polling Station No,179 the total votes polled were 517 out of which 18 votes were declared invalid bringing the total number of votes cast to 499 but while calculating the votes of the contesting candidates at the said Polling Station Oojla Kalan Bearing Polling Station No,179, the respondent No,1 by an inadvertent mistake instead of writing the total number of votes cast against the column of total votes showed the figure of 499 total polled votes as ' secured by respondent No,2. The report and parawise comments were called from respondent No, 1/Returning Officer vide order, dated 11-7-2001 and declaration of the result of respondent No,2 was stayed till the decision of this writ petition.
3. Learned counsel for the petitioner contends that total votes which were polled at Polling Station No,179 were 517 out of which 18 votes were declared invalid and total valid votes were 499. Learned counsel for the petitioner further contends that respondent No,2 did not obtain single vote from Polling Station No,179, hence, mistake is liable to be corrected and petitioner be declared as successful candidate, as he obtained more votes than respondent No,2 if his votes from Polling Station No,179, 499 votes are excluded from total votes on the seat of General Councillor.
4. Learned counsel appearing on behalf of respondent No,2 has opposed this petition on the ground that the petitioner can file the election petition and no election can be challenged except through election petition after the issuance of Notification. On the other hand counsel for the petitioner has contended that the Notification has not yet been issued for the success of respondent No,2 as the General Councillor and the Returning Officer has power to correct the result.
5. I have heard the learned counsel for the parties at length and also perused the parawise comments filed by the Returning Officer, in which it has been, admitted by the Returning Officer that through mistake 499 votes were shown as have been secured by respondent No,2. The total votes which were polled at the said polling station were 517 and 18 votes were found invalid and the total valid votes were 499 which were obtained by different candidates and all these votes have not been secured by respondent No,2 as have been shown in Annexure "A". The mistake is apparent on the record and the Notification has not been issued, as the declaration of the result of respondent No,2 has been stayed vide order, dated 11-7-2001. The contentions of learned counsel for the petitioner are borne out from record and from the comments submitted by the Returning Officer but only ground for not making correction is that Returning Officer has become functus officio after the announcement of the result. This Court vide order, dated 11-7-2001 has already passed the following order in C.M. 2 of 2001:-- "Notice. In the meantime, any declaration of the result made by the Returning Officer shall be subject to the final decision of this writ petition."
' The Notification if any has been issued after the passing of the abovesaid order that is illegal. The Returning Officer is directed to correct the mistake and issue the correct result within fortnight. The fresh notification shall be issued by the Election Commission after the IA correction. This writ petition is accepted.