MUHAMMAD ZAFARULLAH KHAN And Another vs EHSAN ULLAH KHAN And 2
This matter concerns a challenge to an order passed by an Election Tribunal allowing an amendment to an election petition filed against the election of Nazim and Naib Nazim. The petitioners contended that the election petition was not duly signed or verified as required by the Punjab Local Government Elections Rules, 2005, and thus should have been dismissed under Rule 72. The core legal question was whether the Election Tribunal is mandatorily required to dismiss an election petition for non-compliance with verification requirements or whether it possesses the discretion to allow amendments to cure such defects. The Court held that the use of the word 'may' in Rule 72 of the Punjab Local Government Elections Rules, 2005, grants the Tribunal discretion rather than imposing a mandatory duty to dismiss. Furthermore, the Court affirmed that the Tribunal, exercising powers akin to a civil court, may allow amendments to pleadings under Rule 71(4) to ensure a fair trial and determine the real controversy. Consequently, the petition was dismissed, establishing that technical defects in verification do not render an election petition automatically unmaintainable.
- Does the use of the word 'may' in Rule 72 of the Punjab Local Government Elections Rules, 2005, make the dismissal of an election petition for non-compliance with verification requirements discretionary or mandatory?
- Can an Election Tribunal allow the amendment of an election petition to cure defects in verification?
- Does a defect in the verification of an election petition render the petition automatically unmaintainable?
- Order VI Rule 15, Code of Civil Procedure 1908
- Rule 67, Punjab Local Government Elections Rules 2005
- Rule 71(4), Punjab Local Government Elections Rules 2005
- Rule 72, Punjab Local Government Elections Rules 2005
- Section 52, Representation of Peoples Act 1976
- Punjab Local Government Ordinance 2001
ORDER
SYED SHABBAR RAZA RIZVI, J.--- The petitioners contested election of Nazim and Naib Nazim of Union Council No.9, District Bhakkar against respondents Nos. 1 and 2. Respondents Nos. 1 and 2 filed election petition before respondent No.3. According to the learned counsel for the petitioner, said election petition was not duly signed by respondents Nos.1 and 2. It was also not verified under Order VI, rule 15 of C.P.C. Read with Punjab Local Government Election Rules, 2005.
2. The respondents Nos.1 and 2 filed an application seeking amendment in the election petition which was opposed by the petitioners. The Election Tribunal, respondent No.3 allowed application for amendment/modification of respondents Nos.1 and 2 vide order, dated 14-1-2005.
3. According to the learned counsel for the petitioners, the learned Election Tribunal was bound to dismiss election petition under rule 72 of the Punjab Local Government Elections Rules as requirements of rule 67 were not fulfilled. In this regard, the learned counsel referred to a judgment of my learned brother Mian Hamid Farooq, J./Election Tribunal. Without going into deeper analysis and discussion, it is pointed out that the said decision was given under section 52 of the Representation of Peoples Act, 1976, therefore, the said judgment is not applicable to the present case which is governed by the Punjab Local Government Elections Rules, 2005 read with Punjab Local Government Ordinance, 2001.
4. Under rule 67(3), every election petition is required to be signed by the petitioner and verified in the manna laid down in the Code. Of Civil Procedure. The consequences are given in rule 72 which reads as under: "The Tribunal may dismiss an election petition if---
(a) the provisions of rules 67 and 70 have not been complied with; or
(b) the allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity, or other illegal act."
Rule 72 states, "the Tribunal may" instead of `"the Tribunal shall". The language of rule 72 signifies that it is discretionary for the Election Tribunal to dismiss an election petition if requirements of rule 67 are not fulfilled, it is not mandatory for him in all circumstances to dismiss an election petition.
For further guidance Zulfiqar Hassan v. Mirza flag Nawaz 2004 M LD 1331, is referred to. Even my learned brother Mian Hamid Farooq, J. Held while hearing Election Petition No.3 of 2003, Rana Muhammad Hayat v. Sardar Talib Hussain Nakai, that Election Tribunal having all powers of civil Court trying a suit under C.P.C. Can allow parties to amend pleadings at any stage proceedings, if same is necessary for ensuring fair and effective trial and determination of real question in controversy. Moreover, rule 72 is to be read with rule 71(4) which is as under:-- "The Tribunal may, at any time, upon such terms and on payment of such cost as it may direct, allow a petition to be amended in such a manner as may, in its opinion, be necessary for ensuring a far and effective trial and for determining the real question in controversy, so however that no new ground of challenge to the election is permitted to be raised."
The learned Tribunal exercised its powers under rule 71(4) of the Punjab Local Government Elections Rules, 2005, therefore, there is nothing B wrong in the impugned order, it is, as a matter of fact, consistent and compatible with rule 71(4).
5. The learned counsel also referred to PLD 2005 SC 600 and 2000 SCM R 250. It may be pointed out that in PLD 2005 SC 600, the order passed by the Election Tribunal comprising my learned brother Mian Hamid Farooq, J. Was challenged and the appeal was, accepted. Therefore, the learned counsel for the petitioner should have decided whether he relied upon order of the Election Tribunal (Election Petition No.1 of 2003) or Sardar Zada Zafar Abbas v. Syed Hassan Murtaza PLD 2005 SC
600. Both cannot be relied upon, it would be self-contradictory. As stated above, in the above case, election of Provincial Assembly was challenged under Representation of the Peoples Act, 1976 and not under the Punjab Local Government Ordinance, 2001 read with the Punjab Local Government Elections Rules, 2005. Similarly, the learned counsel has wrongly referred to 2000 SCM R 250, wherein provisions of Houses and Parliament and Provincial Assemblies (Election) Order (P.O. 5 of 1977), Senate (Election) Act (LI of 1975) and the Constitution of Pakistan were under discussion.
6. In Abdul Nasir and another v. Election Tribunal, T.T. Singh, the Honourable Supreme Court while deciding an election petition relating to the post of Nazim and Naib Nazim, Union Council No.272,` Faisalabad held that mere defect regarding verification of election petition would not render the same unmaintainable. For further guidance see Abdul Nasir v. Election Tribunal, T.T. Singh and others 2004 SCM R 602.
7. In view of the above discussion and reasons, this writ petition is dismissed at limine stage.