SH. ABDUR RASHID, J.--- This Intra-Court Appeal has been directed against the order, dated 19-4- 2004 passed by the learned Single Judge in Chambers in Writ Petition No,1349 of 2004, whereby the Constitutional petition seeking a direction in the nature of quo warranto and calling upon respondent No,6 to show-cause as to under what authority of law, he is functioning as Nazim of Union Council, Ghouinke, Tehsil Daska, District Sialkot after his resignation from the Office, in order to contest the general election, had been disposed of with a direction to the petitioner to move a fresh application before the Secretary Local Government (respondent No,1), who being the competent authority, shall take remdial steps on the basis of his own inquiry and findings and decide the same within a period of two weeks, after hearing the petitioner.
2. Briefly stated that the facts giving rise to the instant appeal are that Usman Javed (respondent No,6) was elected as Nazim, Union Council, Ghouinke, Tehsil Daska, District Sialkot. Upon announcement of Schedule for the General Elections, he submitted his nomination papers to contest the elections from Constituency No,PP-129, Sialkot-(IX) and he submitted his resignation from the seat of Nazim of the Union Council to meet the requirements of section 162 of the Punjab Local Government Ordinance, 2001, which places an embargo on dual membership. His nomination papers after scrutiny were accepted and his name had been entered in the list of contesting candidates. Subsequently, he submitted an application to the Returning Officer seeking his retirement from his candidature from Constituency No,PP-129, Sialkot-(IX). It appears that his application seeking retirement from candidature was belated one, as his name appeared on the ballot-papers and in the final count of ballot-papers, he was shown to have secured 96 votes. As such, legally he continued to remain a contesting candidate.
' However, respondent No,6 meanwhile continued to hold his office as Nazim of the Union Council.
Feeling aggrieved, the petitioner had filed the writ petition in the nature of quo warranto on the premise that after having resigned from the office of Nazim of the Union Council, he could not have withdrawn his resignation and had ceased to be the Nazim of the Union Council.
3. During hearing of the writ petition, respondent No,6 raised the controversy that he had not submitted his resignation and as such section 162 (ibid) was not applicable to his case and that his retention of the office. Of Nazim of the Union Council was lawful. Vide the impugned judgment, the learned Single Judge in Chambers disposed of the writ petition by referring the controversy to the Secretary Local Government (respondent No,1) for his decision thereon. Hence, the instant appeal.
4. It has been mainly argued on behalf of the appellant that respondent No,6 while filing his nomination papers before the Returning Officer of Constituency No,PP-129, Sialkot-(IX) had also submitted an affidavit to the effect that he had resigned from the office of Nazim of the Union Council in order to contest the elections for the Provincial Assembly seat and his nomination papers could not have been accepted by the Returning Officer and his name could not have been entered in the list of contesting candidates unless he had resigned from the seat of Nazim of the Union Council; that once a resignation was submitted under section 162 (ibid), it would be deemed to be accepted and effective forthwith and respondent No,6 had no option to withdraw his resignation and that the learned Single Judge in Chambers had without any legal reason referred the matter to the Secretary Local Government (respondent No,1).
5. The learned counsel for respondent No,6 while controverting the arguments of the learned counsel for the petitioner argued that respondent No,6 had not validly submitted his resignation and subsequently, he had also applied to the Returning Officer seeking his retirement and as such his resignation did not become effective and he could continue to retain his seat of Nazim of the Union Council and that the controversy as to whether he had submitted his resignation or not, has been rightly referred to respondent No, 1.
6. We have heard exhaustive arguments from both the sides and have perused the record. Section 162 (ibid) places an embargo on dual membership and requires a Nazim of the Union Council to resign from his seat before contesting election for any other elective office. Therefore, respondent No,6 while submitting his nomination papers to contest the general elections for Constituency No,PP-129 Sialkot-(IX) was bound to resign from the office of Nazim of the Union Council and accordingly he submitted his resignation and also submitted an affidavit to the Returning Officer to the effect that he had resigned from his said office of Nazim of the Union Council to support his nomination papers. The name of-respondent No,6 could not have been brought on the list of eligible candidates, who could contest the Provincial Assembly Elections, unless he had fulfilled the mandatory requirement of submitting his resignation from the office of Nazim of the Union Council.
His affidavit before the Returning Officer, copy whereof has been placed on the record, is indicative of the fact that he had submitted his resignation from the office of Nazim of the Union Council and under section 162 (ibid) a resignation once submitted would be deemed to be accepted and effective forthwith and could not be retrieved subsequently under any law or circumstances. It would be advantageous to reproduce the provisions of section 162 (ibid), which read as under:-- "162 Resignations.--- (1) A member of the Council may resign from his office by writing under his hand addressed to the Naib Nazim of the concerned Council, whereupon the resignation shall deem to be accepted and effective forthwith.
(2) Copies of all resignations shall be forwarded to the Election Commission and the Government.
(3) Notwithstanding the resignation of a member any proceeding for removal under section 161, if already initiated, shall not abate."
7. As respondent No,6 had submitted his resignation and his name was brought on the list of eligible candidates to contest the election for Constituency No,PP-129, Sialkot-(IX), therefore, he had ceased to hold the office of Nazim of the Union Council and no controversy is left to be resolved by the Secretary Local Government (respondent No,1).
8. Resultantly, we accept this appeal, set aside the impugned order, dated 10-4-2004 passed by the learned Single Judge in Chambers, and issue a writ in the nature of quo warranto declaring that respondent No,6 had ceased to hold the office of Nazim of the Union Council. He thus, stands de-notified from the seat of said office and the competent authorities will announce the schedule for fresh election of the said office in accordance with law.