This judgment will dispose of Writ Petition No, 3796 of 2004 and Writ Petition No, 3866 of 2004 as these involve common questions of law and fact.
2. The petitioner in Writ Petition No, 3796 of 2004 is a candidate for the office of Nazim, Union Council No, 27, Tehsil Ferozewala, District Sheikhupura while petitioner in Writ Petition No, 3866 of 2004 is contesting election to the office of Nazim, Union Council 49, Sharqpur, Tehsil Ferozewala.
These were bye-elections scheduled for 28.3.2004. Both of them had earlier contested the election for the office of Nazim held in 2001. Respondent No, 3 in both these cases objected to the nomination of the petitioners on the ground that they had failed to file the return of the election expenses (in relation to the election held in the year 2001). Vide separate orders dated 12.3.2004 of the Returning Officer the objection of Respondent No, 3 was over-ruled on the basis of affidavits filed by the petitioners to the effect that they had filed returns of the election expenses and their nomination papers were accepted. Respondent No, 3 in the two cases filed appeals which were allowed vide orders dated 15.3.2004 of the learned District Returning Officer, Sheikhupura solely on the ground that the affidavits of the petitioners were not sufficient and that they had failed to produce any receipt or other documentary evidence showing filing of the returns of election expenses.. Accordingly, the nomination papers of both the petitioners were rejected. These writ petitions are directed against the said orders.
3. Dr. M. Mohy-ud-Din Qazi. Hafiz Abdur Rehman Ansari and Mr. Hamid Ali Shah, Advocates appeared for the petitioners in these cases. It is contended that according to Rule 1 of the Punjab Local Government (Election) Rules, 2003 these were described as the Punjab Local Government Elections Rules, 2000. However, according to Rule 95 of the Punjab Local Government (Election)
Rules, 2003, the 2000 Election Rules were repealed. It is further contended that the Punjab Local Government Election Rules, 2000 were framed under the Punjab Local Government Elections Ordinance, 2000 (No, V) which was repealed by' Section 196 of the Punjab Local Government Ordinance, 2001 (No, XIII) of 2001. It is thus, maintained that no rules in respect of the election to the Local Government are in existence including Rule 18 of the Punjab Local Government (Election)
Rules, 2003 which authorizes the Returning Officer to reject nomination papers of a candidate. It is next maintained that Section 152(m) of the Punjab Local Government Ordinance, 2001 contemplates a post election disqualification and the said provision authorizes only the learned Chief Election Commissioner to determine it. Therefore, Rule 18 of the 2003 Election Rules, being inconsistent with Section 152 of the Ordinance is ultra wires. Reference was also made to the Notification No, F-I. (14)/2002-Law Dated 28.1.2004 of the Election Commission of Pakistan .whereby procedure for filing an application under Section 152 of the Ordinance has been prescribed. Section 161 of the Ordinance providing for removal of the Nazim or Naib. Nazim was also referred to according to which proceedings for disqualification have to be initiated before the learned Chief Election Commissioner. Section 169 of the Ordinance was also referred to which prescribes failure to file statement of election expenses as an illegal practice. It was also contended that there was no material before the Appellate Authority to have arrived at the impugned conclusion. The decision rendered was beyond the scope of summary inquiry. Reliance was placed on Ghulam Mustafa Jatoi Versus Additional District & Sessions Judge (Returning Officer) N.A. 158.
Naushero.Feroze and others (1994 S.C.M.R. 1299).
4. It was also contended that in the absence of any counter affidavit, the Returning Officer had rightly accepted the nomination papers of the petitioners. In Writ Petition No, 3866 of 2004 the counter affidavit was not filed before the Returning Officer. It was only filed before the Appellate Authority but its contents were not even noted while relying upon it.
5. M/s. Mian Qamar-uz-Zaman, Ch. Fawad Hussain and Mr. Ilyas Komal, Advocates appeared for the objectors. On their behalf it is being submitted that in the Punjab Local Government Act (No, XXXIV 1975), and the Punjab Local Government Ordinance, (No, VI 1979) qualifications and disqualifications had separately been prescribed. However, in Punjab Ordinance XIII of 2001 only the qualifications have been prescribed and in . case of objection it was for the candidate to establish that he was duly qualified. It is further maintained that in token of having filed the election expenses receipts should have been produced and mere affidavit was not enough. In Writ Petition No, 3866 of 2004 the counter affidavit filed before the Appellate Authority was also relied upon. It is next contended that notwithstanding Section 152(2) of Punjab Ordinance No, XIII of 2001, the Returning Officer was duly competent to examine the objection of the contesting respondent. It is next contended that the interpretation of Section 152(m). of the learned counsel for the petitioners will render Rule 18 as redundant. It was also maintained that efforts were made by the Returning Officer to find out from the relevant record the correct factual position but the returns of both the petitioners were not available.
6. The submissions made by the learned counsel for the parties have been considered. As far as the first contention of the learned counsel for the petitioners is concerned it has no merit. The notification of Election Rules 2003 was issued on 14.4.2003 and figure "2000" in Rule 1 appears to be a typographical error. It may also be noted that for the bye-election held on 28.3.2004 only the said rules were in force and the petitioners filed nomination papers under the aforesaid set of rules.
Therefore, nothing turns on the misdescription of the year in Rule 1 of 2003 Election Rules.
7. As far as the next contention is concerned, before it is examined, it will be appropriate to reproduce the relevant provisions from Ordinance No, XIII of 2001 and the Local Government Election Rules, 2003.
Ordinance XIII of 2001.
S. 152(1) A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he; (a)to(1)xxxxxxxxxxxxxxxxxxxxxxxxx
(m) has not failed to file the required return of election expenses or is not convicted for exceeding the limits of election expenses prescribed under the electoral laws.
(2) Whoever:--
(a) is found by the Chief Election Commissioner to have contravened the provisions of Sub-section
(1) shall stand disqualified from being a candidate for election to any office of the Local Government for a period of four years; or
(b) having been elected as member of a Local Government or is a holder of an elective office of the Local Government is found by the Chief Election Commissioner to have contravened the provisions of sub-section (1) shall cease forthwith to be an elected member or to hold the office of such member office and stand disqualified from being a candidate for election to a Local Government for a period of four years.
Rule18. (1)xxxxxxxxxxxxxxxxxxxxxx
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer, may, either suo moto or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that:--
(i) The candidate is not qualified to be elected as a member.
(ii) The proposer or the seconder is not qualified to subscribe to the nomination paper.
(iii) any provision of Rule 16 or Rule 17 has not been complied with; or (iv)the signature or thumb impression of the proper or the seconder is not genuine;
8. The filing of the statement of election expenses in Form XVIII has been provided in Rule 68 of 2003 Rules. The previous election was held in the year 2001 when the Punjab Local Government Election Rules, 2000 were in force and statement of election expenses was required to be filed under Rule 68 of 2000 Rules. The question which attracted may attention was whether failure to file return of election expenses in respect of a previous election was also covered by clause (m) of Section 152 aforesaid. Rule 18(3)(i) of 2003 Election Rules authorizes rejection of a nomination paper of a candidate who is not qualified to be elected as a member. Section 152 prescribes the qualifications of a candidate and one of the qualifications is that he has not failed to file the required return of election expenses. Clause (a) of sub-section (2) of Section 152 provides that if contravention of provision of sub-section (1) is found by the Chief Election Commissioner a person shall stand disqualified from being a candidate for election to any office (underlining is mine). Clause (a) therefore, clearly contemplates a preelection stage when a person is only a candidate. Therefore, Section 152(m) applies to a person who is a candidate as well as to a person who has been elected. Thus, I am of the view that a person who is candidate in an election will not be a qualified to contest the election if he has failed to file statement of election expenses in a previous election.
9. The next question was whether Rule 18 of 2003 Election Rules is ultra wires of the Ordinance and it is the Chief Election Commissioner only who can competently determine a pre-election dispute as to the qualifications of a candidate. The scrutiny of nomination papers involves a summary inquiry while according to the notification dated 28.1.2004 provides elaborate procedure for filing an application under Section 152 of the Punjab Ordinance XIII of 2001 and its determination. If what is being contended by the learned counsel for the petitioners is accepted, Rule 18 will be rendered nugatory. Further, the aforesaid set of rules will become unworkable because every case in which a dispute arises as to the qualifications of a candidate will have to be referred to the learned Chief Election Commissioner. This will not only involve unnecessary inconvenience to the public, but unnecessarily encumber the Chief Election Commissioner to handle all the pre-election disputes as to the qualification or otherwise of a candidate. Therefore, while scrutiny of nomination papers has been provided by way of a summary inquiry under Rule 18, the scope of inquiry under Section 152 is wider. It is not, therefore, in-conflict with the provisions of Section 152. The two provisions can co-exist. A basic principle of interpretation is to make an effort to harmonize and reconcile the provisions of a statute and the rules so as to save them rather than to destroy them. Further in case only the Chief Election Commissioner could competently go into the question of qualifications of a candidate at the pre-election stage, it may have the effect of retarding the process of election which will be against the object of election laws and public interest. Such an interpretation is to be avoided.
10. The next question, however, is whether the learned Appellate Authority had sufficient material before it to come to the conclusion that the petitioner had contravened the provision of clause (m) of Section 152. In Writ Petition No, 3796 of 2004 the only evidence on record was un-rebutted affidavit of the petitioner. The non-submission of the documentary evidence by the petitioner of filing of the statement of election expenses, to my mind, was not sufficient in the course of summary inquiry to dis-enfranchise the petitioner. In Writ Petition No, 3866 of 2004 no counter affidavit was filed before the Returning Officer. It was filed before the Appellate Authority. A copy of the affidavit of Respondent No, 3 was produced by his learned counsel. Perusal of this affidavit shows that the concerned official had informed him (Respondent No, 3) that no candidate who had lost in the previous election had filed statement of election expenses. It further states that on contacting the District Returning Officer, Sheikhupura he was informed that the copies might be available in the office of the Assistant Presiding Officer, Ferozewala. This affidavit did not establish anything. It may also be noted that in the order dated 12.3.2004 passed in Writ Petition No, 3796 of 2004 the Returning Officer noted:-- Record pertaining to the filing of election expenses by he contesting candidates has not been traced despite best efforts made by this Court."
Non-availability of the record therefore, left the matter in serious doubt. It was also not shown that record of the statements of election expenses was being maintained and, if so, at what level and who was the custodian thereof. The matter therefore, required a detailed inquiry and the petitioners could not be kept away from the process of the election so as to render them remediless. However, if they are returned the objectors will have a remedy of an election petition.
The following observation from Election Law & Practice by Chawla (page 61-Third Edition-1985) may be usefully reproduced:-- "The returning officer cannot enter upon an elaborate inquiry or wander into lengthy details. In case of a doubt he should lean in favour of acceptance of the nomination rather than rejection. This is both on the ground of expediency and the nature of the effect of his decision. In case it is found that the rejection was improper it would lead to setting aside of, election with the consequential inconvenience to the candidate and the voters besides entailihg heavy expense and burden on the exchequer. As observed in a case the benefit of doubt should go to the candidate. The case Ram Krishan Reddy V. Kamla Devi, 5 ELR 173 is illustrative of this principle."
11.It may be noted that vide interim orders dated 24.3.2004 passed in both the writ petitions symbols were directed to be allotted to the two petitioners and they were allowed to provisionally contest the election with a further direction that the official result will not be announced/published.
12.For what has been stated above both the writ petitions are allowed, the impugned orders of the learned Appellate Authority in both the cases are declared as without lawful authority and the orders of the Returning Officer accepting the nomination papers of the two petitioners are restored.
The result of the elections may now be announced/published. No order as to costs.