JAMES ILYAS MASIH vs PUNJAB LOCAL COUNCILS ELECTION AUTHORITY, LAHORE AND Other

ORDER

1. ABDUL KADIR SHAIKH, J.-James..Ilyas Masih, petitioner herein, and Rafiq Paul, respondent 3; were candidates to the -election of one non-Muslim sent in Zila Council Jhelum. On 4th December, 1977 the Returning Officer rejected the nomination paper of. Rafiq Paul on the ground that he, his proposer and the seconder had failed to appear before. Him, On appeal by Rafiq Paul under rule 10(1) of the Punjab Government Local Council (Elections) Rules, 1979 the Deputy Commissioner, Jhelum set aside the order of the Returning Officer on' 6th December, 1979 but when Rafiq Paul approached the Returning Officer with the request that his name be included in the list of candidates, the Returning Officer refused to honour the order of the Deputy Commissioner on the plea that the . Deputy Commissioner Was not empowered under the rules.To hear the appeal against the order of the rejection of. Nomination Paper, Rafiq Paul then filed a petition. Under section 17(1) of the Punjab Local Government Ordinance, 1979 on which the Election Authority passed the order dated 12th December 1979 directing the Returning Officer to. Consider Rafiq Paul ai validly nominated candidate anti allot him a symbol for the election. . The Returning Officer refused to comply with this order also on the ground that he had already declared the petitioner as duly elected unopposed on 10th December; 1979.

2. Rafiq Paul then filed another petition under section 17(1) of the Ordinance before the election Authority which was allowed, on 21st January, 1980 with the result that the declaration of the result made by the Returning Officer on 10th December, 1979 was set aside and the election to the minority seat was ordered to be held afresh.

3. This order was unsuccessfully challenged by the petitioner before the Lahore High Court in Writ Petitioner No. 1197 of 1980, and he now seeks special leave to appeal, from the judgment of the High Court, Chaudhry A. Waheed Saleem, learned counsel for the petitioner submits that after the declaration of the result by the Returning Officer on loth 'December, 1979 the election process came to an end and the only remedy left for Rafiq Paul was by way of an election petition under section 24 of the Ordinance before the Election Tribunal and the Election Authority was not competent under section 17 of the Ordinance to interfere with the result. This plea has been rejected by the High Court on the ground that Rafiq Paul had not challenged "the election of the petitioner in any sense of the term but he had challenged the illegal rejection of his own nomination papers. Consequently his election petition before the Election Tribunal would have been incompetent even under rule 13(1) (a) of the Election Petitions Rules whereunder, the Election Tribunal would declare. The election of the returned candidate to be void if it was satisfied that the ' nomination of the returned candidate was invalid. The case of respondent No. 3 was that the rejection of his nomination papers being illegal and the declaration of result of the election wherein the petitioner had been declared elected unopposed also being in violation of rule 22, it could not be said that any election as envisaged by the-Ordinance bad been held. Admittedly, no notification pertaining to the result of the election- was issued in the instant case. Rule 3 of the'A Election Petitions Rules lays down that an election petition shall be presented within 30 days next after the publication of the result in the official Gazette.

4. Since no election petition could be preferred by respondent No. _1 ~t that stage before the Election Tribunal, the provisions of section 17(2) of the Ordinance were not attracted to the case. The only course left open, in the circumstances, for respondent No. 3 was to prefer a petition under sec-- tion 17(1) of the Ordinance before the Election Authority."

5. The view that has prevailed with the High Court is unassailable, for, Rafiq Paul had challenged the order of rejection of his nomination papers by the Returning Officer on two occasions, firstly before the Deputy Commis--sioner in appeal which was accepted and it was only when the Returning Officer had refused to comply with the order of the appellate Authority that he moved the Election Authority under section 17 of the Ordinance even before the result of the election was not notified in the Gazette. Since the order of the Returning Officer rejecting nomination paper of Rafiq Paul was manifestedly erroneous under the law the Election Authority rightly directed fresh elections to be held and we therefore see no just and proper ground for interference in this case.

6. The petition is dismissed in limline.