' Through this writ petition the petitioner prays that the order of the Returning Officer to the extent of acceptance of the nomination paper of respondent No,2 be declared to be without lawful authority and of no legal effect.
2. Brief facts of the case are that the petitioner is a voter member of Union Council No,73-D, City Khanpur. His name is bearing Voter No,240. He is eligible voter and it is his fundamental right to cast his vote in favour of any candidate of his city. It is stated that respondent No,2 (Ch. Sabir Ali); who is a practising Advocate, already contested the election of Nazim for the Union Council No, 73- D, City Khanpur, he lost the election, and now he has applied and submitted his nomination paper for the reserved seat of Tehsil Khanpur as Peasant, and his nomination paper has been accepted illegally by the Returning Officer/respondent No,
1. It is stated that the Returning Officer/ respondent No,1 his not announced the date for order for the acceptance or rejection of the nomination paper but he has simply issued a list of successful candidates containing the name of respondent No,2 at Serial No,8 of the list at Form-VII, Annexure "A".
3. The learned counsel for the petitioner has argued that nomination paper of respondent No,2 has illegally been accepted by respondent No,1, Returning Officer without scrutiny and without inviting the objections and fully knowing that respondent No,2 is a practising lawyer and is regularly appearing in the Court of Additional District Judge who accepted the nomination paper of the respondent No,2 as Returning Officer. Certificate dated 25-7-2001 issued by the President, Bar Association, Khanpur, District Rahim Yar Khan (Annexure-B on the file) shows that Ch. Sabir Ali is a practising Advocate and he is Member of Khanpur Bar Association and also cast his vote in the election of the Bar Association.
4. The word 'Peasant' has been defined in section 2, subsection (10) of the B.N.P.S. Local Government Elections Ordinance, 2000, which reads as follows:--- "'Peasant' means a person who is landless farm worker orl, one who, during the period of five years precedipg the year in which the election is held, has been the owner of not more than five acres of land and depends directly on it for his subsistence;"
5. The Certificate issued by the President, Bar Association, Khanpur has been appended, with this writ petition. In view of the allegations made by the petitioner it is evident that respondent No,2 is a practising Advocate and Member, Bar Association and also cast his vote in the election of the Bar Association. The respondent No,2 was given notice to appear before this Court and Mr. Ahmad Mansoor Chishti, Advocate appeared on 30th July, 2001 on behalf of the respondent and sought time to prepare the brief and the case was enlisted for today i,e, 31-7-2001.
' Today, in the early hours of the day when the case was called, the learned counsel for the respondent appeared and sought short time for preparation, but again when the case was called in the later part of the day nobody on behalf of the respondent has appeared.
' There is nothing on the file to rebut the contention of the petitioner that the respondent No, 2 does not fall in the definition of the 'peasant'. He is a practicing advocate. Needless to say that under the law it is only a landless farm-worker or a person owning less than five acres of land and dependent entirely on the same for subsistence, who is 'peasant' qualified to contest election for a seat reserved for peasant. In the case reported as Ahmad Baths v. The District Judge/Election Tribunal and others PLD 1986 SC 223 at page 225 their Lordships of the Supreme Court observed:--- "This requirement of the candidate's maintenance being dependent upon cultivation, is a condition precedent for his being declared as a peasant."
' This view has also been followed by this Court in case reported as Mst. Razia Sultana v. Returning Officer, Sialkot and others 2001 CLC 932.
' In the above-referred cases the law mandates that owner of less than five acres of land must be dependent directly upon the land for his subsistence.
' In this view of the matter, and on the anology in the judgment of the Supreme Court, it can safely be said that direct dependence upon the land for subsistence is a condition precedent for respondent No,2 to be declared as peasant. In the admitted circumstances of the present case, the said condition precedent is missing, as neither any record has been produced before the Court that respondent No,2 is owner of less than five acres of land or that he is not earning his livelihood by practicing as a lawyer.
' For what has been discussed above, the order of respondent No,1, Returning Officer/Additional District Judge, Kanpur, accepting the nomination paper of respondent No,2 and including his name in the validly nominated candidates at Form No, VII at Serial No,8 is declared to be without lawful authority and of no legal effect.
' The writ petition is disposed of accordingly.