ABDUL MAJID vs ELECTION TRIBUNAL

ORDER

' ZIA MAHMOOD MIRZA, J.---In the Local Councils Elections held on 30-11-1987, petitioner and respondent No,2 were the rival contestants for the membership of Town Committee, Ladeywala Waraich from Ward. No,16. According to the result of the count prepared by the Presiding Officer, petitioner polled 146 votes as against 121 votes of respondent No,2. Petitioner was accordingly declared successful. Feeling aggrieved, respondent No,2 challenged the election of the petitioner through an election petition filed before the Election Tribunal under section 24 of the Punjab Local Government Ordinance. Grievance made by the respondent in his election petition was that his 11 votes were illegally rejected by the Presiding Officer whereas 50 invalid votes which ought to have been rejected were wrongfully accepted as valid and included in the count of the petitioner and as a consequence thereof, the result of the election was materially affected. In the circumstances, it was averred by the respondent in sub-para. (iv) of para. 3 of the election petition that the recounting of votes was necessary. Yet another objection raised by the respondent was that the Presiding Officers threatened and coerced his voters to affix the seals on the symbol of the petitioner and thereby committed illegal and corrupt practices.

2. Petitioner contested the election petition by filing a written reply thereto wherein he denied the allegations made by the respondent. It appears that after the petitioner had submitted his written reply, respondent's counsel made a statement that he only wanted the recounting of the votes and withdrew other objections. Petitioner resisted the respondent's prayer for recounting on the plea that it required evidence. Learned Tribunal, however, by his order dated 23-7-1988 took the view that no evidence was required for recounting the votes, as such, he directed the Returning Officer to produce the election record on 29-9-1988 for which date Presiding Officer and the Polling Officer were also ordered to appear in person. This order of the Election Tribunal has been brought under challenge in the present Constitutional petition.

3. We have heard the learned counsel for the petitioner. He has submitted that the respondent's counsel having withdrawn all the objections taken in the election petition, the objection regarding the rejection of his 11 votes and wrongful inclusion of 50 invalid votes in the count of the petitioner also stood withdrawn and, as such, there was no need/justification left for recounting the votes and the election petition was liable to be dismissed under rule 9 of the Local Councils (Election Petitions) Rules, 1979. Contention of the learned counsel appears to be misconceived. Statement of the counsel for the respondent made before the Election Tribunal places it beyond any doubt that he only pressed the ground of attack relating to the illegal exclusion/inclusion of valid/invalid votes and waived other objections. It was for this reason that he made the request for recounting the votes.

4. Learned counsel for the petitioner next submitted that respondent No,2 in the prayer part of his election petition did not seek any relief for recounting the votes nor any such relief was permissible in terms of rule 5 of the Election Petition Rules whereunder a petitioner can claim as relief any of the following declarations---

(a) that the election of the Returned candidate is void;

(b) that the election of the Returned candidate is void and that the petitioner or some other person has been duly elected; or

(c) that the election as a whole is void.

' It was contended by the learned counsel that since the request of the respondent for recounting the votes was not covered by any of the reliefs mentioned in rule 5(2), learned Tribunal erred in allowing the respondent's request. This contention too, is without any merit. Recounting of votes was obviously not sought as the whole relief. In fact, the request of the respondent for recount was aimed at seeking the relief claimed by him in the election petition, namely, that the election of the Returned candidate i.e. the petitioner herein, be declared void and he (the respondent) be declared as elected. Needless to observe that if during the recount, the Election Tribunal on scrutiny of the ballot papers finds that the valid votes of the respondent exceed those of the petitioner, he shall grant the relief claimed by the respondent.

5. In view of what has been said above, the learned Election Tribunal in ordering the recount proceeded on correct premises, legal as also factual, and no legitimate exception can be taken thereto. It may also be pertinently observed that in a case like the present one where the only dispute agitated before the Election Tribunal relates to the alleged illegal rejection/acceptance of the votes by the Presiding Officer, the Tribunal is fully competent to resolve it by recounting the votes. Such a power is clearly spelt out from the provisions of rule 44-A of the Local Councils (Elections) Rules, 1979, which empowers the Election Tribunal to open the packets containing the counted ballot papers obviously with a view to re-examine/scrutinize and recount them. Reference may also be made to Walayat Khan v. Reham Dad and others 1985 SCM R 532 wherein the order of the Election Tribunal deciding the case on the basis of recounting the votes alone was upheld.

6. For the reasons mentioned above, we find no merit in this petition, which is dismissed in limine.