Through this Constitutional petition, the petitioners seek setting aside of order, dated 24-2-2001 passed by Election Tribunal against the petitioner by which the election petition of the petitioner has been dismissed due to non-compliance of mandatory provision.
2. Brief facts of the case are that the petitioners and respondents Nos,2 to 9 contested election for the seat of Nazim and Naib Nazim from Union Council No,32, Urban-II and they were allotted symbols for the election held on 21-3-2001. The petitioners were allowed symbol of hockey whereas respondents Nos,2 to 9 were allotted symbols of football, moon, banana and basket-ball respectively. Respondents Nos,2 and 3 were declared as returned candidates with a difference of 6 votes as, according to the result announced by the Election Authorities the petitioners secured 1986 whereas respondents Nos,2 and 3 secured 1992 votes. The petitioners alleged that many illegalities and irregularities were committed by the Election Staff at the polling stations and the petitioners being aggrieved of the result filed election petition before the Election Tribunal/District and Sessions Judge, Hafizabad and prior to filing of election petition the condition precedents regarding issuance of notices alongwith copy of election petition to the respondents was fulfilled and during the pendency of election petition, notices were issued by the Election Tribunal to effect their service. In pursuance of notices issued by respondent No,1, only respondents Nos,2, 3 and 9 appeared, whereas rest of respondents proceeded were ex parte vide order, dated 21-7L2001 and ultimately an advertisement regarding ex parte proceedings was published in the newspapers.
During the pendency of election petition respondents Nos,2 and 3 filed an application under Order VII, rule 11, C.P.C. for rejection of the petition on the basis of non-fulfillment of basic requirements of rules 70 and 71 of Punjab Local Governments Rules, 2000. The petitioners filed reply and vide order, dated 24-2-2001, the application has been accepted and the election petition has been dismissed.
3. The learned counsel for petitioners contends that from the bare perusal of order it is crystal clear as in para. 19 at page 16 it has specifically been mentioned that notices and registered A.D. were sent to the respondents and respondents Nos,2 and 3 appeared on 26-5-2001 and then the case was adjourned to 22-6-2001, but the respondents did not file any objection till 31-7-2001. At last on 5-9-2001 the objection petition was filed at a belated stage and it was mentioned at para.3 of the objection petition that the petitioners had not been able to comply with the mandatory provisions of rule 71. The petitioners filed reply to the objection petition and denied allegation levelled, but the learned Election Tribunal vide order, dated 24-2-2001 has dismissed the election petition without considering the material facts that the respondents to whom the notices though were sent, but were not placed on record had been proceeded against ex parte. It is further contended that respondents Nos,2 and 3 could not be given the benefit of non-sending of the notices to the respondents, who had already been proceeded against ex parte before passing of the impugned order. It is further contended that substantial justice is aim of law and basic criteria for decision of cases and the petitioners could not be non-suited on technical ground. It is further contended that whether the notices and envelops were sent by the petitioners or not before filling of election petition is a factual question and cannot be answered without recording of evidence and the election petition has been wrongly dismissed. It is further contended that respondents Nos,10 to 17 have already been declared as unnecessary parties by the Election Tribunal and respondents Nos,4, 6, 7 and 8 whose registered A.D. receipts were not attached with the petitioner were not interested and contesting parties.
4. On the other hand, the learned counsel appearing on behalf of respondents Nos,2 and 3 has supported the impugned order on the ground that the penal consequence for non-compliance of provision of rule 71 is provided in rule 77 of the said rules which is rejection of the election petition and it is a mandatory provision thus non-fulfilment of requirements of rules 71 and 72 is sufficient to dismiss the election petition under rule 77. He relies on 1992 SCMR 462. He further contends that ex parte proceeding is not acceptable as a defence by the petitioners as the respondents can join the proceedings at any stage. Reliance is placed on 1970 SCMR 251, PLD 1980 Lahore 66, PLD 1975 Lahore 879 and PLD 1970 Lahore 428. He has relied upon the case of Akbar Ali v. Muhammad Ibraheem (1984 CLC 1464) to contend that non-compliance of provision of rule 4 by not delivering the copy of petition to the respondent through registered posi is sufficient to dismiss the election petition. The learned counsel has also relied upon PLD 1985 Lahore 203, PLD 1985 Supreme Court 28 and PLD 1983 Karachi 387.
5. I have heard the learned counsel for parties and have perused the impugned order. From the bare perusal of order it is crystal clear that number of notices were sent by the petitioners before filing of election petition to respondents Nos,4, 6, 7 and 8 in election petition. Rule 71 of the Punjab Local Government Rules, 2000 lays down that it is mandatory on the petitioner in the election petition that before filing of election petition, he should send copy of election petition to the respondents. Penal consequence of noncompliance of rule 71 is given in rule 77. The provision' of rule 71 is mandatory and non-fulfilment of this rule is sufficient for dismissal of the election petition as is laid down in rule 77 and the case law cited by the learned counsel for respondents is applicable to the facts and circumstances of this case. In Akbar Ali v. Muhammad Ibrahim Sardar and another (1984 CLC 1464) a Division Bench of this Court came to the conclusion that non- fulfilment of rule by not delivering the copy of petition to the respondent personally or through registered post simultaneously with filing of the election petition is sufficient to reject the petition by the Election Tribunal. Relevant portion is reproduced hereunder:-- "This petition is liable to be dismissed for the simple reason that the Election Tribunal has exercised its discretion as conferred on it by law that may dismiss a petition where the provisions of rule 4 have not been complied with and rule 4 is quite clear in laying down that the petitioner (Election Petitioners) shall deliver a copy of the petition to the respondent personally or by registered post". Secondly, the rule 4 envisages that the copy shall be delivered simultaneously with the filing of the election petition. No further presumption was required. The petitioner fought fairly and squarely and has lost election by a lead of 10 of the respondent No, 1 . Election petition has been dismissed for his own omission to do what the law required him to do, in exercise of power conferred by law on the Election Tribunal. Its decision cannot be said to be without lawful authority, therefore the Constitutional petition has no merit or force and is, therefore, dismissed in limine."
Another Devision Bench in Abdul Aziz Khan v. Abdur Rehman and others (PLD 1985 Lahore 203) has also taken the same view in the following words:-- "As regards the provision to deriver a copy of the petition to the respondent and to sign and verify the Annexures to the petition, oversight alone was pleaded. In these, circumstances, there cannot be any doubt that the matter was attended carelessly and negligently and there was a gross violation of rules 3(4), 4 and other of the Election Petition Rules, for which neither good nor sufficient cause was shown for each non-compliance. This was sufficient to permit the Election Tribunal to exercise its discretion against the petitioner, which it did."
Similar view was taken in Government of the Punjab v. Dr. Ijaz Hasan Qureshi (PLD 1985 Supreme Court 28) that where the law had provided in unequivocal words consequences of failure or default, the requirement of law had to be taken to be mandatory.
6. From the bare perusal of rule 77 and the case-law cited above, it has come crystal clear that the petitioner while filing election petition was duty bound to send the copy of petition to the respondents who were made respondents in the election petition. This was to be done before filing of election petition by the petitioners but they had failed to place on record registered A.D. to show that the copies were sent to the respondents Nos,4, 6 to 8. Even subsequently they could not produce the receipts before Election Tribunal that they had sent the copies of petition to the respondents. Subsequent ex parte proceedings against the respondents will not cure the illegality committed by the petitioners at the time of filing of election petition. This petition due to above said reasons has no merit and is dismissed.