' The petitioner with an intend to contest the forthcoming bye-elections,. Polling of which is scheduled to beheld on 22-5-2004 filed his nomination-papers for the seat of a Councillor (Special Seat) of Union Council No.224 City Faisalabad: At the time of scrutiny of nomination-papers, it revealed that person, who seconded nomination-papers of the petitioner, was not a Councillor. On pointing out of this irregularity by the Returning Officer, Mr. Muhammad Shahid (Councillor) who was present at the time of scrutiny offered to become his seconder, substituting the earlier seconder namely Siddique Masih Bhatti but respondent No.2 (Returning Officer) rejected the nomination-papers vide his order dated 22-4-2004.
2. The petitioner aggrieved of the order rejecting his nomination-papers, filed an appeal before the District Returning Officer (respondent No.1) wherewith he filed an affidavit of Mr. Muhammad Shahid, Councillor, showing his willingness to become seconder of the petitioner and affirming that such an offer was also made by him at the time of scrutiny. Respondent No.1 also concurred to the view that the nomination-papers were defective and could not be validated by subsequently getting signatures of the seconder/Councillor and dismissed appeal of the petitioner vide order dated 24-4-2004. The petitioner has now filed instant Constitutional petition praying that orders of both the respondents be declared as illegal, void and of no legal consequence.
3. Learned counsel for the petitioner submits that it is correct that seconder of the petitioner was not a Councillor but it was just an irregularity which could be cured even at the time of scrutiny of the -nomination-papers and thus, the Returning Officer (Respondent No.2) fell in error in not accepting offer of Mr. Muhammad Shahid (Councillor) to become his seconder. It was also contended that the defects,- if any, in the nomination-papers which could be cured instantly were repeatedly held by the superior judiciary, are not such, on the basis of which nomination-papers cannot be rejected but both the respondents have not adverted to this aspect of the matter, prejudicially effecting the case of the petitioner. According to the learned counsel for the petitioner, both the respondents should have required the petitioner to cure the defect and had the petitioner failed, thereafter some punitive action should have been taken.
4. Learned Assistant Advocate General opposed the prayer of the petitioner and supported the orders passed by the respondents and urged that Punjab Local Government Ordinance, 2001 provided penalty for non-compliance of rules, in form of their rejection and thus, the defect of seconder of the petitioner who was not a Councillor cannot be cured because relevant rule is mandatory. He further submitted that if at all, such a defect can be cured under law, it could be done only till the date of filing of the nomination-papers and not thereafter.
5. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the A record, appended herewith. Undeniably, the nomination-papers by the petitioner were filed according to the schedule announced for bye-elections and the only dispute which hinges for determination is that any defect of a formal nature could be cured or the same can be allowed to be removed after the date given for filing of nomination papers. It is a settled controversy that irregularities in the nomination-papers which can be instantly removed at the time of scrutiny of nomination papers, without deliberations and detailed exercise should be allowed to be rectified. The defect in hand can also be termed as an irregularity of the same nature because Mr. Muhammad Shahid (Councillor) present at the time of scrutiny had offered to become seconder of the petitioner and he has also sworn an affidavit to this effect, showing his willingness for this purpose. Defect/ A irregularity in hand is not such, which attracts disqualifications provided by laws relating to local bodies. Both the respondents have not applied their conscience judicial mind to this aspect of the case and it escaped from their notice, negatively reflecting on their findings in the orders impugned, which cannot be allowed to be maintained. This petition is accordingly accepted and orders dated 22-4-2004 and 24-4-2004 passed by the respondents are declared to be void, illegal and of no legal consequence and by accepting instant petition, the respondents are directed to have signatures of fresh seconder of the petitioner and to include his name in the list of contesting candidates for the special (minority) seat for bye-elections for Union Council No.224, City Faisalabad, scheduled to be held on 22-5- 2004. There will be no order as to costs.