SYED SHABBAR RAZA RIZVI, J.--- The petitioner and the respondents Nos.4 to 8 submitted their nomination papers for the office of Tehsil Nazim Sambarial District Sialkot. The nomination papers of the petitioner were accepted by the learned Returning Officer on 16-9-2005. The respondent No.3 filed appeal under rule 14(4) of the Punjab Local Council Election Rules, 2005, objecting therein, the candidature of the petitioner on the ground that petitioner being a Nazim of U.C. No-54 District Sialkot was disqualified to contest election as he had not resigned. Respondent No. 1, the learned District Returning Officer accepted appeal of respondent No.3 and rejected nomination papers of the petitioner vide order, dated 19-9-2005, which has been impugned herein.
2. The learned counsel for the petitioner contends that learned District Returning Officer has not been able to interpret the provision of section 158 of the Punjab Local Government Ordinance, 2001 correctly. The learned counsel for the petitioner submits that under section 158, a person cannot hold more than one political offices but he cannot contest for the second office without resigning from the first office.
3. An electoral college for the election of a Tehsil Nazim, Town Nazim and reserved seats of women, peasants and workers and minorities in the Tehsil Council and Town Council shall be all the members of the Union Council in the Tehsil or, as the case may be, Town, including Union Nazim and Naib Union Nazim. The qualification for candidates to contest election to an office of a Local Government are given under section 152 of the Punjab Local Government Ordinance, 2001. Section 158 provides a bar against Nazims for dual membership etc. Which reads as under:-- "(1) A Zila Nazim, Naib Nazim, Tehsil Nazim, Naib Tehsil Nazim, Town Nazim, Naib Town Nazim, Union Nazim and Naib Union Nazim may contest election for any other political office after resigning from the office of Nazim or, as the case may be, Naib Nazim: Provided that a member of Zila Council, Tehsil Council, Town Council or Union Council may contest election for any other political office without resigning from the membership of such council: Provided further that such member shall not hold more than one office at one time.
(2) Nothing in subsection (1) shall apply, to Union Nazirn or Naib Union Nazim, becoming members of the Zila Council or Tehsil Council, or the Members elected against reserved seats in the Zila Council or Tehsil Council, or being elected as Naib Zila Nazim or, as the case may be, Naib' Tehsil Nazim."
It may be pointed out that subsection (2) was added vide Punjab Local Government (Amendment)
Act (XXVI of 2005). Original section 158 consisted of subsection (1) only, and it included all Nazims i.e. Zila Nazim, Naib Zila Nazim, Tehsil Nazim, Naib Tehsil Nazim, Town Nazim, Naib Town Nazim, Union Nazim and Naib Union Nazim. By new subsection (2) of section 158, Union Nazim or Naib Union A Nazim have been taken out of the list given in subsection (1), and there is no bar on them becoming members of Zila Council or Tehsil Council or the members elected against reserved seats in Zila Council or Tehsil Council or being elected as Naib Zila Nazim or as the case may be, Naib Tehsil Nazim. That means bar contained in subsection (1) still applies to a Union Nazim or Naib Union Nazim, if he wants to contest election of Zila Nazim or Tehsil/Town Nazim. This amendment is consistent with Rule 53, which provides that "in the first meeting of Zila Council, Tehsil/Town Council presided by Returning Officer cause the conduct of A poll, where the members of Zila/Tehsil/Town Council, as the case may be, shall elect from amongst themselves a Naib Zila/Tehsil/Town Nazim securing majority votes of total membership of the Council through a secret ballot".
As noted above Nazim Union Council or Naib Nazim Union Council has not been exempted from the bar mentioned in subsection (1) of section 158 of the Ordinance as far as election of Zila Nazim or Tehsil Nazim is concerned. For election of Zila Nazim or Tehsil/Town Nazim, it is not necessary that candidate should be from amongst members of the respective house. For this season subsection
(2) of section 158 of the Punjab Local Government Ordinance, 2001 allows Union Nazim or Naib Union Nazim to contest election of Naib Zila Nazim or as the case may be, Naib Tehsil Nazim without resigning from his office, as both are members of Zila Councils and Tehsil Councils respectively by virtue of their office. But if a Union Nazim or Naib Union Nazim wants to contest the election for the office of Zila Nazim or Tehsil Nazim/Town Nazim, he is required to resign from his office to qualify for the election and the bar mentioned in subsection (1) of section 158 of the Punjab Local Government Ordinance, 2001 will apply with full force.
5. However, it may be clarified that a Nazim of a Union Council shall be deemed a Nazim for the purpose of performance of his functions, duties, rights etc., after his election result has been notified by the Chief Election Commissioner and he has taken oath. Under section 160 of Ordinance, 2001, a Nazim or a Naib Nazim is required to take oath before assuming the charge. Likewise unless a Nazim and Naib Nazim assumes the charge of his office, he cannot perform his functions, duties or exercise any powers etc. It flows from the above that will also not be deemed a Nazim qualified or disqualified as a voter or a candidate to contest any election i.e. As mentioned in Rules 53 of Punjab Local Government Election Rules, 2005. Whenever an oath is provided for any office, the incumbent can only become functional after he has been administered the oath. Section 160 of the Punjab Local Government Ordinance, 2001 is reproduced as under: "(1) The elected Nazims, Naib Nazims and members shall take oath before assuming the charge of their respective offices.
(2) A Zila Nazim, Naib Zila Nazim and the members of Zila Council shall be administered oath of office by the concerned District and Sessions Judge.
(3) A Tehsil Nazim, Naib Tehsil Nazim, Town Nazim, Naib Town Nazim and members of the Tehsil Council and Town Council shall be administered oath of office by an Additional District and Sessions Judge designated by the District and Sessions Judge of the concerned District.
(4) A Union Nazim, Union Naib Nazim and members of a Union Council shall be administered oath of office by a judicial officer designated by the District and Sessions Judge of the concerned District. "
6. To explain further all constitutional office-holders provided under the Constitution become functional only after they are given oath by the nominated persons. In this regard a reference may be made to clause (3) of Article 255 of the Constitution which reads as under:--- "(i.e) Where, under the Constitution, a person is required to make an oath before he enters upon his office, he shall be deemed to have entered upon the office on the day on which he makes the oath."
Can a member of the Parliament or Provincial Assembly become a candidate or a voter for election of the President of Pakistan who has not taken oath?
The present writ petition is disposed of in the above terms i.e. If petitioner has taken oath under section 160 of Ordinance of the Punjab Local Government Ordinance, 2001, he shall be deemed to have assumed office of Union Nazim and therefore, he shall be disqualified to contest election of Tehsil Nazim and his case will be covered by subsection (1) of section 158 of the Punjab Local Government Ordinance, 2001, but if he has not taken the oath, as mentioned under section 160 of the Punjab Local Government Ordinance, 2001, he shall not be deemed to have assumed the office of Nazim Union Council, and in that case the bar contained in subsection (1) of section 158 of the Punjab Local Government Ordinance, 2001 will not apply.