Choudhary PERWAIZ AKHTAR and another vs DISTRICT RETURNING OFFICER, LAYYAHand 5 others

ORDER

' MIAN SAQIB NISAR, J.---The appellants and the writ petitioners, contested the election to the seats of Nazim and Naib Nazim, of Union Council No,19, Chak No,98-ML, Tehsil Karor District Layyah. The Presiding Officers sent their results to the Returning Officer, who consolidated the same, which envisaged that the writ petitioners polled 3629 votes, as against the appellants' 3526. The District Returning Officer, however, vide order dated 20- 8-2005, cancelled the results by holding that the Returning Officer has reported to him about the disturbance during the process of election, caused by the writ petitioners at Polling Stations Nos.4 and 7, which includes the firing inside the polling stations and also taking away 100 Ballot Papers, due to which, the Presiding Officer got the cases registered against them. Keeping this in view, the learned District Returning Officer held "In the light of the above said state of affairs, no sanctity could be attached to the polling process for the office of the Nazim and Naib Nazim of Union Council No,19, Chak No,98/ML, Tehsil Karor, District Layyah, Resultantly I cancel the election of Nazim and Naib Nazim of Union Council No,19, Chak No,98/ML, Tehsil Karor, District Layyah." The order was challenged by the writ petitioners through W.P. No,5133 of 2005, which has been accepted by the learned Single Judge in Chamber on 8-9-2005, preliminary on the reasoning that the District Returning Officer lacks the jurisdiction to cancel the election. Hence this I.-C.A.

2. Learned counsel for the appellants, has argued that it is an admitted position on the record that the writ petitioners removed 100 ballot papers from the Polling Stations and are guilty of indiscriminating firing; the Presiding Officers, who were performing their official duties have got the cases registered against the writ petitioners, therefore, the learned District Returning Officer was within his authority to cancel the election and direct for the re-polling.

3. We are afraid, that the argument has no force, for the reason that after the result having been consolidated by the Returning Officer, no power vests with the District Returning Officer to cancel the election; the appellants' counsel has failed to point out any precise provision of law in this behalf. However, relying upon rule 25 of the Punjab Local Government Election Rules, 2005, it is argued that in the circumstances of the case, the fresh polling was warranted and justified and thus the jurisdiction duly vests with the Returning Officer, which could also be exercised by the D.R.O. Suffice it to say, that before directing for the fresh polls in terms of rule 25(2), the conditions of sub-rule (1) and clause (i) or (ii), which envisage essential prerequisites and the steps must be squarely met, firstly the Presiding Officer of his own should stop the polls on account of the situation prevailing at the Polling Station falling strictly within the purview of the two sub-clauses ibid, which is sine qua non for the invocation of the jurisdiction, thereafter only the power is vested with the Returning Officer to take action under rule 25(2). In the instant case, admittedly, the polling was never stopped and the two aforesaid incidents are not established to have been reported by the Presiding Officer to the Returning Officer, whereas, the Presiding Officers independently got the cases registered and may have informally informed about this to the R.O., however, the Returning Officer still never took any action under rule 25(2), rather he consolidated the result for its onward transmission to the concerned quarters and that was the end of his authority and his functions in the process of election, except the declaration for the result in terms of rule 38 and the submission of the return of the election in form XVI together, with the copy of the consolidated statement to the D.R.O. With all this done, the Returning Officer would become focus official whereas, according to rule 38(4), the D.R.O was supposed to act as a post office to forward to the Provincial Election Commission, the names of the returned candidates for the publication in the official Gazette by the Chief Election Commission, in this scheme of law, which is stated with quite precision in the Election Rules, the D.R.O. Has not been conferred with any authority to cancel the result and to direct for the fresh poll. Resultantly, as the order dated 20-8-2005 passed by the D.R.O. Was patently illegal and unwarranted by law, therefore, the learned Single Judge, in Chamber, has rightly interfered in the matter and has set aside the same in the Constitutional jurisdiction. Dismissed.