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Writ Petition No. 105 of 1984, decided on 17th March, 1985.

---S. 21(1)(e)--Election--Disqualification of elected candidate Doctrine of notoriety--Principle of thrown away votes, application of--Petitioner, disqualified on ground of being in Army Service, secured maximum votes--Returned candidate/respondent who was only qualified candidate got muchless votes--Election Tribunal, held, committed visible error of law in disqualifying petitioner and declaring respondent as elected by overlooking doctrine of notoriety of petitioner's disqualification so as to attract principle of thrown away votes--High Court set aside order of Election Tribunal and returned case for fresh disposal in accordance with law.

Faqir Muhammad Khokhar for Petitioner.

Irshad Ahmad Qureshi for Respondent No. 1.

Date of hearing: 17th March, 1985.

This writ petition has been filed by Muhammad Yousaf whose election to. the local council was set aside by the Election Tribunal on the ground of his being disqualified to be elected and instead a contesting candidate was declared to have been returned unopposed.

2. The Election Tribunal came to the conclusion on the basis of evidence adduced at the trial of election petition that the petitioner was in Army service w.e.f. 28-6-1948 and was transferred to reserve on 15-11-1973 after completion of 25 years service. His liabilities to serve as a reservist ware up to attaining the age of 50 years i.e. 28-6-1980. However, later on the petitioner joined Janbaz Force wherefrom he was discharged on 4-9-1983 as verified by the Station Commander. The Election Tribunal while holding the petitioner to be hit by the disqualification laid down in section 21(1)(e) of the Punjab Local Government Ordinance declared respondent No.1 to have been returned unopposed as he was the only qualified candidate who filed the nomination paper.

3. We have heard the learned counsel for the parties. We find that the learned Election Tribunal, Kharian has committed a visible error of law by overlooking the doctrine of notoriety of petitioner's disqualification so as to attract the principle of thrown away votes. It could not have been overlooked that respondent No.l had secured only 35 votes while the petitioner obtained 208 votes. The error of approach is patent on A the face of the impugned order. We have, therefore, no hesitation in accepting the writ petition and declaring the impugned order to be without lawful authority and of no legal effect. We are also not satisfied that the Election Tribunal has fully applied his mind to the provisions of Ordinance LXI of 1973 before recording the finding that the petitioner was indeed disqualified by virtue of section 21(1)(e) of the Punjab Local Government Ordinance. In any case, the order has to be struck down as a whole in Constitutional jurisdiction.

4. The net result is that this writ petition is accepted and while setting aside the impugned order, the case is sent back to the learned Election Tribunal for fresh disposal in accordance with law.

There shall, however, be no order as to costs in the circumstances of the case.

H.B.T.

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