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Writ Petition No. 3579 of .1980, decided on 25th January, 1981.

Ss. 21(f) & 24 and Punjab Local Councils (Election Petitions) Rules, 1979, rr. 14 & 15 and Constitution of Pakistan (1973), Art. 199 Election petition‑Disqualification‑Petitioner a depot‑holder elected Member of Local Council alleging to have tendered resignation, accept ance of which made after decision of Tribunal‑Tribunal declaring election void‑No basis, held, existed to .interfere with. finding of Tribunal.

Ss. 21(f) & 24 and Punjab Local Councils (Election Petitions) Rules, d 1979, rr. 14 & 15 and Constitution of Pakistan (1973), Art. 199

Halsbury's Laws of England, 4th Edn., Vol. XV, para. 930 ref.

Abdul Rashid Qureshi for Petitioner.

M. A. Jafar for Respondents.

Date of hearing: 25th January, 1981.

M. S. H. QURESHI, J.‑The petitioner, Oscar Dania], had been elected as member of the Local Council Chak No. 11/AB, Tehsil and District Sheikhupura. An application was however, moved by Binyamin, respondent No. 2, before the Election Tribunal for annulling his election on the ground that he was a depot‑holder in village Maryam Abad and as such disqualified to become such member. He had further prayed that in the vacancy he himself be declared as elected. The Election Tribunal found that the petitioner had been a depot‑holder and had continued to be so notwithstand ing a resignation submitted by him on 7‑2‑1980. The Tribunal, therefore, declared his election to be void and simultaneously, without giving any reason, declared respondent Binyamin to be duly elected in his place, vide order dated 20‑7‑1980. The petitioner has challenged this order by the present constitu tional petition.

2. We find that there is material enough to justify the Tribunal's finding that the petitioner was a depot‑holder. The evidence shows that he jointly with his father had received authorization on 28‑6‑1974 and had continued functioning. Although his case was that he had submitted his resignation on 7‑2‑1980 but we find nothing in the evidence on the relevant record (which has been produced by Peshi Qanungo of the office of Additional Commissioner (Consolidation), Lahore Division, Lahore, during hearing of this petition before us) to show that the resignation had been accepted while the matter was before the Tribunal or he had otherwise in fact ceased to function as depot-holder. It is submitted by learned counsel for the petitioner that the resignation had been accepted on 27‑7‑1980, but that was] after the Tribunal had already announced its decision. We, therefore, find no basis to interfere with this finding of the Tribunal.

3. The Tribunal however, did not apply its mind as to the next step to be taken. Under rule 14 of the Punjab Local Councils (Election Petitions), Rules, 1979, it could declare another candidate to have been duly elected only if it was satisfied that such candidate was entitled to be so declared The Tribunal had also to examine whether the circumstances justified the holding of a re‑election under rule 15 of the aforementioned Rules. The principle governing a decision on the point is given at paragraph 930 in Halsbury's Laws of England, Fourth Edition, Vol. XV. It reads:

"Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away, and to decide this a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the pact of electors voting for the disqualified person. Examples of the sort of disqualification that will cause vote to be thrown away are being a peer, alien or minor, or a person convicted of an offence and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence. For the votes given for a candidate to be thrown away, the voters must, before voting, either have had or be deemed to have had notice of the facts creating the candidate's disqualification, and it is not necessary to show that the elector was aware of the legal result that such a fact entailed disquali fication. Votes given without such notice are good. If, after deduc ting the votes given after such notice from the total number of votes given for the disqualified candidate, tie remains in a majority, the minority candidate cannot take the seat and there must be a fresh election."

4. Since the point involved is one of fact, the same has to be decided in the first instance by the Tribunal itself. We, therefore, declare that portion of the Tribunal's order as relates to declaring respondent Binyamin as elected to be without lawful authority and of no legal effect. The Tribunal shall decide the question in the light of rules 14 and 15, aforesaid after applying its mind. No order is made as to costs.

M. Y. H. Order accordingly.

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