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. Civil Appeal No. 72 of 1981 in Civil Petition for Special Leave to Appeal No. K‑48 of 1981, decided on 11th April, 1981.

(On appeal from the judgment and order of the High Court of Sind, Karachi, dated 15‑3‑1.981 in Constitutional Petition No. 594 of 1980).

‑‑ Rr. 66 & 68‑Election petition, maintainability of Jurisdiction Contention that objection as to maintainability of election petition had to be considered and decided by Election Authority and if Election authority failed to dismiss petition for such reason Election Tribunal possessed no jurisdiction to review such decision‑Held: Not without substance‑Election Authority once holding election petition to be properly constituted such authority under obligation to refer same for trial to Election Tribunal.

---Rr. 66 & 68‑Election petition‑Issues, decision of ‑ Remand (civil)‑Election Tribunal, held, should, in circumstances of case, have decided all issues, preliminary as well as those challenging legality of election, at one time‑Election Tribunal having not done so decision given by him, held, open to review and High Court's order remanding case to Election Tribunal for decision on merits justified.

Khalid M. Ishaq Advocate and Shafiq Ahmed, Advocate‑on‑Record for Petitioners.

Yousuf Rafi, Advocate‑on‑Record for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing : 11th April, 1981.

The petitioner seeks special leave to appeal against the judgment of the High Court of Sind, Karachi, dated 15th of March 1981, by which Constitutional Petition No. 594 of 1980 was accepted and the case remanded to the Election Tribunal for a decision afresh.

The petitioner contested election for K. M. C. Unit No. 39 (U. C. 88) in the Local Bodies election held on 25th of September, 1979, but lost it and the first respondent, after tentative counting of votes, was held to have won it. At the final counting of votes, on 28th of September, 1979, some other candidates challenged the votes cast in favour of the petitioner with the result that the first respondent was declared elected by a margin of 3 votes. It is pertinent to note here that one Syed Imran Wasti, a candidate for the said seat, publicly declared that he had withdrawn his candidature and, accordingly, no vote was cast in his favour. The petitioner challenged the result of the election of the first respondent impleading him and 20 other candidates who bad filed their nomination papers. This Imran Wasti was not joined as one of the respondents. The first respondent submitted his written statement on 1st of January, 1980, but took no objection as to his non joinder in those proceedings. Thereafter, on 27th of February, 1980, the Tribunal framed issues by consent of the parties who agreed to lead evidence through affidavits. On 28th of February, 1980, he submitted an application for amending his written statement in order to include the ground that the election petition was not properly verified. On 24th of March, 1980, the petitioner applied to summon the record of the votes cast in favour of the parties and on 25th of March, 1980, the Election Tribunal ordered that Issues (4) and (5) be heard as preliminary issues by consent of the parties and fixed third of April, 1980, for arguments. On this date, the first respondent filed an application in which he objected to the maintainability of the petition on the ground that as Imran Wasti, a contesting candidate, had not been joined as a respondent in the petition, it should be dismissed. This objection was also, by consent ordered to be heard as a preliminary issue. On 5th of April, 1980, the Tribunal recounted the cast votes and declared the petitioner to have been duly elected by a margin of 12 votes. It also held that the objection, as to the maintainability of the petition, was not tenable. This disposed of all the three preliminary issues.

The first respondent, thereupon, challenged this decision through a Writ Petition in the High Court of Sind on the grounds of its non- maintainability and merits. The High Court took note of the finding of the Election Tribunal that it had no power to dismiss the election petition under rule 68 of the Sind Local Council (Election) Rules, 1979. Nonetheless it directed that the Election Tribunal had not seriously considered the objection of the first respondent as it failed to consider as to whether rule 66 of the said Rules was mandatory or directory. The next objection on the merits, namely, that the decision on preliminary Issues 4 and 5 could not decide the fate of the election petition without further recording evidence and disposing of the other issues, namely, 2, 3 and 6 also pre6ailed. In the result, it remanded the case to the Election Tribunal holding as under:‑

"In view of our above conclusions, we set aside the judgment dated 5‑4‑1980 of the learned Election Tribunal and remand back the petition to it for disposing of the preliminary objections; on merits and for reconsidering the issues framed by it on merits, in the light of the above observations of ours, in accordance with law. In view of the circumstances of the matter, we pass no order as to costs.

However, the learned Tribunals shall first dispose off preliminary objection on merits and thereafter, if necessary, shall proceed to decide all the issues, including two so‑called preliminary issues, after granting opportunity to both the sides to adduce evidence and after hearing both of them."

The learned counsel for the petitioner contends that the High Court was in error in giving its opinion, as it did, as to the non‑maintainability of the election petition and in support of it he relies on rule 68 which reads:‑

"68. Procedure on receipt of petition by the Collector.‑(1) If the Election Authority is satisfied that all or any of the preceding provi sions have not been complied with, the petition shall be dismissed forthwith.

(2) A Tribunal shall consist of a person who is or has been a District and Sessions Judge."

He, therefore, contends that it was not open to the Election Tribunal to go into the question of maintainability of the petition as that objection had to be considered and decided by the Election Authority; and if the Election Authority did not dismiss the petition for this reason, the Election Tribunal had no jurisdiction to review that decision. bare reading of this Rule leads us to conclude that this submission has substance. It was for the Election Authority to consider whether the election petition was or was not property constituted in accordance with rule 66 but once it held that it was so properly constituted then in terms of sub‑rule (2) it was obligatory to refer it for trial to the Election Tribunal.

Mr. Yousaf Rafi, who had entered caveat for the first respondent, feebly attempted to argue that the Election Authority had delegated its power to the Election Tribunal in terms of rule 7 but was not able to substantiate it. Further, it is also open to criticism as to whether rule 7 applies to the present situation having regard to the language of that Rule. It is not necessary for us to go into this question at this stage as the counsel for the respondent bad not even laid the foundation for examining it. The High Court did not examine the proper implication of this Rule and merely held that the Tribunal had not properly considered rule 66 which in our view had to be considered by the Election Authority and not the Election Tribunal. Accordingly, we hold that the High Court was not justified to direct a remand for the consideration of this question.

However, the order of the High Court for the remand of the case on merits has force. Issues 2, 3 and 6 relate to the legality of the election which in our view, should have been decided along with the so‑called preliminary issues for the reason that if the Election Tribunal had come to the conclusion that the petitioner had committed corrupt and illegal practices then such finding would have reflected on the number of the votes cast in favour of the petitioner which would have affected the result of the election. In this view of the matter, it was incumbent on the Election Tribunal to decide all the issues at one time and not having done that, its decision was open to review.

Having thus concluded, we would convert this petition into an appeal and allow it. The order of the High Court to the extent that its decision qua the maintainability of the petition is set aside while the rest of the order, remanding the case to the Election Tribunal for decision on merits is upheld. The Election Tribunal shall dispose of the election petition within two months; and as both the parties have succeeded partially, we would not mulct them with costs.

Appeal allowed.

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