GHULAM MUSTAFA Versus MUHAMMAD KHALIL
1.MUHAMMAD RAFIQ TARRAR, J.---On 25th September 1979 the. petitioner contested the election against Respondent No. I from Halqa No. 8, Ballo Nau Mahnianwala, Union Council Kaulo Tarar, Tehsil Hafizabad, District Gujranwala. He secured 270 votes as against 262 polled by respondent No. I and was declared elected and notified as such. Respondent No. 1 filed an election petition before respondent No 4, i.e. Election Tribunal, Gujranwala. alleging, inter alia, that voters at serial Nos. 295 to 323, 325 to 327 and 233 to 258 whose names had been deleted from the electoral roll, being nomads, by the Assistant Commissioner, could not have been allowed to cast their votes. The Election Tribunal, by its order dated the 4th of April 1981, accepted the plea, declared the election to be null and void and ordered reelection ; hence this petition under Article 9 of the Provisional Constitution Order, 1981.
2.The learned counsel for the petitioner contends that the Assistant Commissioner. had no jurisdiction to amend the electoral roll after the constituency had been called upon to vote nor did the Election Tribunal have the jurisdiction to declare the election void on the said plea.
3.Section 19 of the Punjab Local Government Ordinance, 1979, guarantees the right of vote to every person enrolled as a voter on the electoral roll. Section 18 of the Ordinance lays down that electoral rolls prepared for the election of members of Provincial Assembly as amended from time to time and adopted for a Local Council shall be the electoral rolls for election to local councils. According to clause (h) of rule 2 of the Punjab Local Councils (Election) Rules, 1979, `electoral roll' means electoral roll as adopted under section 18.
4. There is no dispute that the electoral roll prepared for the election of members of Provincial Assembly was adopted for the local council concerned. Section 20 of the Electoral Rolls Act, 1974, provides a specific bar to revise or correct any electoral roll for an electoral area at any time after the constituency of which such electoral area forms part has been called upon to elect its representative and before such representative has been elected. The contention that the names of the alleged nomads, referred to above, were deleted after the nomination-papers had been filed and before the election, has not been controverted before us by the learned counsel for the contesting respondent. Consequently, the ground on which the election petition was allowed by the Election Tribunal, was not available.
5. It is also to be noted that none of the grounds for declaring the election , of a returned candidate to be void or those for declaring the election as a whole to be void as contained in rules 13 and 15, respectively, of the Punjab Local' Councils (Election Petitions) Rules, 1979, was proved before the Election Tribunal.
6. It appears that the Election tribunal did not apply, its, mind to the facts of the case and the relevant law, referred to above. In addition, the impugned order refers to the election petition having been filed "under section 24 of the Ordinance No. VIII of 1979 Punjab Local Councils Petitions E Rules, 1979". Prima facie, the Election Tribunal completely lacked knowledge of the provision under which an election petition is filed. Subsection (2) of 'section 24 of the Punjab Local Government Ordinance, 1979 (VI of 1979 makes provision for filing of an election petition while Ordinance VIII of 1979 was promulgated to amend Ordinance VI of 1979 adding to it a new section 21-A prohibiting candidates to contest election on party basis.
7. For the foregoing reasons, we allow this petition and declare the impugned order to be without lawful authority and of no legal effect. The result is that the petitioner continues to be a member. The parties are left to bear their own costs .
Petition allowed.