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Writ Petition No. 5342 of 1980, heard on 22nd September, 1981.

‑‑ S. 24 read With Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 [President's Post‑Proclamation Order (5 of 1977)], Art. 10 and Punjab Local Councils (Election Petitions) Rules, 1979, r. 12‑Election petition‑Petitioner disqualified (being depot‑holder) but declared elected as member of ward of Municipal Committee Election Tribunal accepting election petition, declaring petitioner's election void, and further declaring respondent contestant to have been duly elected as member‑Held, character of depot‑holders as such could not be treated so notorious as to enable Court to draw inference of voters when voting for such person having literally thrown away their voters‑Election Tribunal not justified in declaring respondent as elected member of ward and election should have been declared wholly void.

Muhammad Ashraf v. Muhammad Ajaib P L D 1980 Lah. 311 and Sakhi Muhammad v. The Election Tribunal, Jhelum 1980 C L C 1857 rel.

Muhammad Khan's case 1980 C L C 1 and Umar Daraz Cheema v Nazar Muhammad 1980 S C M R 156 ref.

‑‑ O. 1, r. 9 ‑Non‑joinder of parties‑Election Tribunal defeating petitioner and declaring respondent elected‑Petitioner not impleading remaining contesting candidates ‑ Held, such non‑impleadment not fatal to writ petition‑‑Constitution of Pakistan (1973), Art. 199. [Election].

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Art. 199 read with Punjab Local 'Government Ordinance (VI of 1979), S. 25(4)‑Writ jurisdiction‑Election Tribunal acting under , t, misconception of law outside privileged limits to err ‑Held, in circumstance, Court cannot help but to interfere t<> remove patent legal injustice.

Raunak Ali v. Chief Settlement Commissioner P L D 1973 S C 236 rel.

Izharul Haq for Petitioner.

Asif Sajjad Jan for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing: 22nd September, 1981.

RUSTAM S. SIDHWA, J.‑This judgment will dispose of Writ Petitions Nos. 5342 of 1980 and 5395 of 1980, as the same question of law is involved in. both the petitions.

2. In Writ Petition No. 5342 of 1980, Mehr Ghulam Nabi, petitioner, was duly elected Councilor of Ward No. 6, Municipal Committee, Gujrat. Muhammad Aslam, respondent No. 1, filed an election petition under section 24 of the Punjab Local Government Ordinance, 1979, for unseating the petitioner. On 13‑5‑80; the Election Tribunal accepted the petition, declared tree election of the petitioner as void and declared the respondent No. 1 to be a duly elected member of Ward No. 6 of the said Municipal Committee. Being aggrieved by the said order, Mehr Ghulam Nabi, petitioner, has now moved this Court in constitutional jurisdiction.

3. In Writ Petition No. 5395 of 1980, Mushtaq Ahmad, petitioner, was elected a Councilor of Ward No. 20 of Municipal Committee, Gujrat. Muhammad Yousaf, respondent No. 1 filed an election petition under section 24 of the Punjab Local Government Ordinance, 1979, for the dis qualification of the petitioner. On 13‑5‑80, the Election Tribunal Gujrat, accepted the petition, declared the election of the petitioner as void and further declared respondent No. 1 to be elected as Councilor on Ward No.GGD of the Municipal Committee. Being aggrieved by the said order, the petitioner has now moved this Court in constitutional jurisdiction.

4. The learned counsel for the petitioners in both these petitions only took up one legal objection, namely, that as the petitioners in both the cases were disqualified because they happened to be depot‑holders, it could not be said that the said fact was so notoriously known to all the voters who voted for the petitioners that in casting their votes, they literally threw away the same. The learned counsel, therefore, contends that the Election Tribunal, Gujrat, erred in law in declaring respondent No. I in both the cases as elected to the respective offices in question and that the Tribunal should have declared the election as a whole void. Learned counsel for the petitioners relied upon Muhammad Ashraf v. Muhammad Ajaib (P L D 1980 Lah. 311) and Sakhi Muhammad v. The Election Tribunal, Jhelum (1980 C L C 1857).

5. The learned counsel for the respondents raised a number of objec tions. First, that the petitioners had no locus standi to move the writ petitions in question as, being legally disqualifies, they could not be treated as aggrieved parties. Second, that once a Tribunal of special jurisdiction decided a question of law or fact, whether rightly or wrongly, the High Court could not interfere. Third, that since the other contesting candidates had not been impleaded as parties to the writ petition, the petitioners had no locus standi to challenge the Tribunal's orders. Fourth and last, that in the earlier law, definite criteria were laid down for the holding of a re‑election, but in the present law the same was not there and, therefore, it was not necessary for the Election Tribunal to order the whole election void.

6. We . have given our anxious consideration to this case. It cannot be doubted that in the instant cases both the petitioners were disqualified under section 21(f) of the Punjab Local Government Ordinance, VI of 1979, read with Article 10 of the President's Post‑Proclamation Order No. 5 of 1977. In these provisions, the words "depot‑holder" do not appear so as to straight away place such category of persons in the straight jacket of disqualification. These provisions have been the subject of interpretation before various Courts no sooner the 1979 elections were held. It was not until Muhammad Khan's case (1980 C L C 1) was decided by this Court that the disqualifications stated in Article 10 of the President's Post‑Proclamation Order No. " of 1977 were treated as attaching to candidates and members of local councils. The petition for leave to appeal against this judgment was dismissed by the Supreme Court in December, 1979. See Umar Daraz Cheema v. Nazar Muhammad (1980 S C M R 156). Thereafter, in Muhammad Ashraf's case and Sakhi Muhammad's case this Court held in respect of Councilors defeated on the basis of being depot‑holders, that their character, as such, could not be treated as notorious, so as to enable the Court to draw the inference that when the voters voted for such persons, they literally threw away their votes. These cases express the correct state of the law. In the circumstances, we hold that the election Tribunals were not legally justified in declaring the respondents as elected members of the wards in question. The proper order in both the cases should have been declaring both the elections wholly void.

7. We now take up the objections raised by the learned counsel for the respondents. As regards the first and third objections, the petitioners in both the writ petitions were contesting candidates, they were deseated from their respective offices and they are, therefore, legally competent to move the present constitutional petitions. It cannot be held that just because they have been disqualified, that presently they are not aggrieved parties. They are very much aggrieved parties. The fact that the remaining contesting candidates have not been impleaded in the present petitions, is not fatal to the competency of the petitions. As regards the second contention raised, the principle adverted to by the learned counsel is correct, but we may also mention that where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action beyond the sphere allotted to it by law and, therefore, outside the area within which the law recognises a privilege to err, then such act amounts to a usurpation of power unwarranted by law, amounting to a nullity. If any authority is required for this view, Raunak Ali v. Chief Settlement Commissioner (P L D 1973 S C 237), may be cited. In the instant cases, as already submitted, the law was not clearly declared till February, 1980, when Muhammad Ashraf's case was decided. However, the Election Tribunals were still acting on their own concept of law and, as is a obvious in the present cases, outside the privileged limits to err. In these circumstances, we cannot help but interfere, to remove a patent legal injustice. As regards the last objection raised by the learned counsel for the respondents, the same has no merit. The very fact that definite criteria have not been laid down in the Punjab Local Government Ordinance, VI of 1979, as in the earlier law, for ordering re‑elections, is perhaps one reason :which made the High Court declare that the disqualifications which arose and sec tion 21(f) of the Punjab Local Government Ordinance, 1979, and had to be spelt out by superior Courts as in the case of depot‑holders, should not be treated as inviting the doctrine of "throw away votes".

8. For the foregoing reasons, we accept both these petitions and hold that the declarations granted to respondent No. 1 in both the cases by the Election Tribunals treating them as duly elected to the respective wards of the Municipal Committee, Gujrat, are without lawful authority and of no legal effect. It is now for the Election Authority to bold re‑elections in respect of the said wards, There shall be no order as to costs.

K. M. A. Petitions accepted.