1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner has assailed the order, dated 9-5-2001 passed by the respondent No,1 as Appellate Authority under the Sindh Local Government Elections Ordinance, 2000 and the Rules framed thereunder. The petitioner has further sought a declaration that respondent No,3, is not a successful candidate as uncontested and elected Nazim and the Returning Officer. Respondent No,2, be restrained from issuing final list of candidates or allotment of symbol to respondent No,3.
2. ' The relevant facts are that the petitioner Zakaria son of Muhammad Sulaiman and respondent No,3, Syed Dilshad Shah son of Haji Shah Nawaz Shah, filed their respective Nomination Papers for the post of Nazim of Union Council, Kalakot, Taluka and District Thatta. The Returning Officer, after scrutiny under rule 18 of the Sindh Local Government Elections Ordinance, 2000 and the Rules framed thereunder accepted the Nomination Papers of both the candidates. No objections were filed before the R.O. By the respondent No,3 or any other person to the acceptance of Nomination Papers of the petitioner No,
1. After the acceptance of Nomination Paper of the petitioner, the respondent No,3, filed an appeal before District Judge. Thatta, under rule 18(4) of the Sindh Local Government Elections Rules, 2000, assailing the acceptance of Nomination Paper of the petitioner.
3. It was contended by the respondent No,3 before the Appellate Authority that the petitioner was an employee of Thatta Sugar Mills and, therefore, was debarred from contesting the election for the post of Nazim of the Union Council. In support of contention a certificate dated 5-5-2001 was produced, which was issued by the Administrative Officer, Thatta Sugar Mills, which reads as follows:-- "This is to certify that Mr. Zakria son of Muhammad 'Suleman Token No,7503 is working in this organization as a Fermentation Man in Distillery Project since 19-9-1989.
4. ' This certificate is being issued for service purpose only."
5. ' The learned District Judge issued notice to the petitioner, heard the appeal and disposed of the same vide order, dated 9-5-2001. A plea was raised before the learned District Judge, that the person who has issued the certificate, certifying that petitioner Zakria is in employment of Thatta Sugar Mills, was not authorized to issue such certificate but the objection was overruled. Some other documents showing the payment of salary to the petitioner in the month of February, 1999 were produced and the learned District Judge on the basis of such documents accepted the plea that the petitioner Zakaria was in employment of the Thatta Sugar Mills and as such was not eligible to contest Sindh Local Government Elections as per section 14(g) of the Sindh Local Government Elections Ordinance, 2000. He accordingly allowed the appeal and rejected the Nomination Paper of the petitioner Zakaria. The petitioner No,2, was Naib-Nazim, and with the rejection of Nomination Paper of petitioner No,1, the Nomination Paper of petitioner No,2, was automatically rejected. Being aggrieved, the petitioner has invoked the Constitutional jurisdiction of this Court.
6. The respondent No,4 Sindh Sugar Mills Corporation has filed its comments. In paras. 4 and 5 whereof it is stated as follows:- 4., That the contents of para. No,4, of the petition are admitted and the certificate issued by Acting Chief Accountant, Sindh Sugar Corporation (Thatta Sugar Mills) in respect of petitioner Zakria is valid certificate within his authority, and the verification of old record shows that petitioner is no more employee of Organization since 1994-95.
5. That with regard to contents of para. No,5, of the grounds of petition, it is submitted that Thatta Sugar Mills is closed since 1994-95 and its workers have been discharged from service. The certificate dated 5-5-2001 issued by one Mr. Muhammad Siddique Khashkhaily under the seal of Administrative Officer, Thatta Sugar Mills showing the petitioner in service, has no legal validity as it was issued without the approval of competent Authority and relevant record, according to which the petitioner was not on pay-roll of the Thatta Sugar Mills since 1995, neither he was regular employee covered under the labour laws.
7. ' The learned counsel for the petitioner has submitted that no other remedy is available to the petitioner except invoking the jurisdiction of this Court under Article 199 of the Constitution, therefore, the petition is maintainable. He has submitted that the impugned order of learned District Judge is totally perverse. According to learned counsel for the petitioner, the learned District Judge has failed to notice that no objection whatsoever was filed before the Returning Officer and therefore, no fresh objection which was purely factual in nature ought to have been entertained.
8. The learned counsel has further submitted that the learned District Judge seriously fell in error on placing reliance on the certificate dated 5-5-2001, which is disowned by the respondent No,4, itself in the comments filed before this Court. The respondent No,4, has clearly stated that necessary inquiry is contemplated against Mr. Muhammad Siddique Khaskhaily, who issued the certificate dated 5-5-2001 without any approval of the competent Authority and against the facts on record.
9. He has further submitted that the learned District Judge has referred to other documents placed before him by the respondent No,3, but the learned District Judge has not referred to the contents of documents. The learned counsel has pointed out that the document which was produced before learned District Judge, is a letter issued by Deputy Commissioner, Theta, dated 1-2-1999 addressed to the Assistant Commissioner/Sub Divisional Magistrate, Theta, directing that the money sent be distributed in Theta Sugar Mills Employees. Along with the said letter a list has been attached which contains the name of petitioner No,1, but neither the petitioner No,1, has signed in token of having received any salary in the month of February, 1999, nor any other evidence was produced to show that the petitioner No,1, accepted any salary in the month of February, 1999.
10. ' Mr. Abbas Ali, learned counsel for the respondent No,4, has further contended that according to provisions contained in section 14(g) of the Sindh Local Government Elections Ordinance, 2000 a person is not qualified to be elected or to hold an elective office or membership of a Local Government, who is in service within six months of filing the Nomination Paper.
11. ' The learned District Judge has failed to consider that the document which otherwise does not contain any other evidence to show that the petitioner accepted salary in the month of February, 1999, pertained to a period which is earlier than six months of filing of Nomination Paper. Thus the learned counsel for the petitioner and the respondent No,4 have submitted that no evidence whatsoever was produced before the learned District Judge to establish that the petitioner No,1, was in employment of Theta Sugar Mills, within six months of the filing of the Nomination Papers and therefore, the impugned order is totally perverse, and is not sustainable in law.
12. ' The learned counsel for the respondent No,3, contended that the petition is not maintainable for the reason that the order made by learned District Judge, as Appellate Authority under the Sindh Local Government Elections Ordinance, 2000 and the Rules framed thereunder, is final and thereafter the only candidate who remained in field is respondent No,3, who stands elected uncontested. The learned counsel has next contended that if the petition is allowed it will create difficulties for the Election Authorities as the Nomination Papers are printed at Islamabad and the election is going to be held on 31-5-2001.
13. ' We are not impressed with any of the contentions because if, the order of learned District Judge attains finality under the Sindh Local Government Elections Ordinance, 2000 and the Rules framed thereunder, it means that the petitioner has no other remedy, except invoking of extraordinary jurisdiction vested in this Court under Article 199 of the Constitution. So far the plea that after rejection of Nomination Paper of the petitioner No,1, the respondent No,3, has been elected uncontested is also without substance because the learned counsel has placed reliance on rule 3 of the Sinn Local Government Elections Rules, 2000 which provides that after scrutiny of the Returning Officer, under rule 18 of the above Rules if such numbers of persons only remained as valid nominated candidates as are equal to the numbers of members to be elected from the ward, the Returning Officer shall by public notice declare such candidates to be elected to the seats.
14. ' In this case the Nomination paper was accepted by the Returing Officer and it has been rejected by the Appellate Authority only. Even otherwise if the order of Appellate Authority is declared to be not sustainable in law and is held as nullity, it shall not have any effect whatsoever. So far, the administrative difficulties are concerned it cannot come in way of the petitioner in seeking his lawful right available to him in law. The election authority and the Administrative Authorities should take suitable action so that a valuable right of the petitioner available to him in law is not denied to him.
15. ' During the course of arguments Mr. Ali Ahmed June, learned counsel for the respondent No,3, has conceded that the certificate dated 8-5-2001, which is genuine certificate according to respondent No,4, was not considered by the learned District Judge. We are of the considered opinion that if the learned District Judge, would have considered the certificate dated 8-5-2001, which was produced before hit he would not D have made the impugned order, because the certificate dated 8-5-2001 has been issued by a higher authority of the respondent No,.4.
16. ' For the foregoing reasons we are of the considered opinion that the impugned order of learned District Judge is not sustainable in facts and law which is hereby set aside and the order of Returning Officer accepting the Nomination Paper is hereby restored. The respondents Nos.5 and 6 are directed to make necessary arrangements for participation of petitioner in the selections and implementation of this order.
17. 'Since the respondent No,3, did not raise any objection before the Returning Officer, where he was required to raise the objection and succeeded in getting the Nomination Paper of the petitioner rejected by the Appellate Authority on production of an invalid certificate, therefore, the petition is allowed with costs of Rs,10,000 to be paid by the respondent No,3, to the petitioner.