RAJA FAYYAZ AHMAD, J.--- In this Constitutional Petition following relief has been claimed:-- "It is prayed that in consideration.Of above, impugned orders dated 7.4.1999 and 12.4.1999 may kindly be declared to have been passed without lawful authority and appropriate direction may kindly be issued to Returning Officer for deletion of name of respondent No. 3 from list of contesting candidates against Peasants Seats of District Council, Quetta."
2. The brief facts of the case are that for the two Special Interest seats viz. Of 'Peasant' of District Council, Quetta the petitioner, respondent No. 3 and four other candidates filed their nomination papers to contest the Local Bodies Elections held on 17.4.1999. The nomination paper filed by the petitioner and the respondent No. 3 were accepted by the Returning Officer and they both besides the other candidates were declared to be validly nominated candidates vide order dated 7.4.1999. It is the case of the petitioner that the respondent No. 3 was not eligible to contest the Local Bodies Election against the allocated seat of the 'Peasant' because he happens to be a Zamindar by profession and the Returning Officer without making even a summary enquiry into the objection so raised at the time of the scrutiny of nomination papers, by writing one word order 'Accepted' declared the respondent No. 3 as a validly nominated candidate, although, the Returning Officer was under obligation to have had satisfied himself that the candidate was neither the landless tenant or he was not owning more than 5 acres of land and under self-cultivation for maintenance within the meaning of sub-section (39) of Section 3 of Balochistan Local Government Ordinance No. II of 1980.
The petitioner being dis-satisfied with the candidature of the respondent No. 3 and the other contestants (validly nominated candidates) for the two seats of 'Peasant' filed joint appeal before the Commissioner/Appellate Authority, Quetta Division, Quetta and the learned Appellate Authority vide order dated 12.4.1999 dismissed the appeal of the petitioner as against his rival candidates including respondent No. 3 except Hameedullah whose nomination paper was rejected by the Appellate Authority on the ground that he is having the ownership of more than 5 acres land independently. Both the orders respectively passed by the Returning Officer and the Appellate Authority have been assailed in the instant petition.
3. It has been contended in para No. 4 of the petition that the petitioner submitted before the Appellate Authority that respondent No. 3 owned agricultural lands in Kechi Baig and Mastung District measuring thousands of acres who is also a 'Sardar Khel' of Shahwani Tribe and that his brother is an ex-M.P.A. From Bolan District namely Mir Muhammad Hashim but the Appellate Authority did not make any inquiry into the such question of fundamental import nor he summoned any revenue record. It has further been contended in the petition that the petitioner has been able to obtain on 'Fax' from Sadar Qanoongo, Bolan. District at Dander, the detail of the property owned by the respondent No. 3 measuring more than 29 poles, over 7 acres besides he is a registered voter in Haji Shehr District Bolan at Serial No. 1130 and is also an ex0member of District Council, Bolan in the last election.
Respondent No. 3 has filed his counter-affidavit wherein plea has been taken that the revenue extracts pertaining to the property bearing Khewat No. 1 Khatooni No. 1 situated at Mouza Khan Muhammad Chishti, Tehsil Bhag Nari, District Bolan does not belong to him and he is neither owner of the property nor has got any concern about the mutation entry which according to his' plea was incorporated in the revenue record fraudulently nor the mutation entries confer any right of ownership of property in his favour.
Petitioner also filed authenticated copies of the revenue extracts pertaining to the lands owned by the respondent under official stamp and signature of the revenue officer by means of Civil Misc.
Application No. 795/99 photostat copies whereof were already annexed with the petition.
4. We have heard the learned counsel for the parties and Mr. Noor Muhammad Achakzai learned Additional Advocate General at length. Mr. M. Aslam Chishti contended that at the time of scrutiny of nomination papers objection was specifically taken by the petitioner before the, Returning Officer that the respondent No. 3 is not eligible to contest the Local Bodies Election against the 'Peasant' seats of District Council, Quetta because he is the owner of the lands more than 5 acres and being a big Zamindar of the area, not entitled to contest such elections and is not a 'Peasant' to qualify for the election but the Returning Officer without considering the eligibility of the respondent No. 3 to contest the election, within the meaning of sub-section (39) of Section 3 of Balochistan Ordinance No. II, 1980 by one word order 'Accepted' declared the respondent No. 3 to be a validly nominated candidate. According to Mr. Muhammad Aslam Chisti the above-noted objection was also taken before the Appellate Authority besides contending that the respondent No. 3 has shown himself not a 'Peasant' but a 'Zamindar' by Profession in his nomination for during the course of hearing of the appeal filed by him but the Appellate Authority did not attend to such legal aspects of the matter and in a perfunctory manner rejected the appeal hastily nor did it even care to make any re-enquiry. The learned counsel with reference to the revenue extracts of jamabandis available on record submitted that the respondent No. 3 is a landlord of more than 5 acres of land and is not eligible to contest the Local Bodies Election against the reserved seats of the 'Peasants' of the District Council, Quetta within the meaning of sub-section (39) of Section 3 of Balochistan Local Government Ordinance No. II and to further supplement such plea he placed reliance on the notification dated 17.5.1992 issued by the Balochistan Local Councils Election Authority published in the Official Gazette (extraordinary) dated 17.5.1992 showing that the respondent No. 3 was elected as member of the Union Council (Haji Shehr) competent part of the District Council, Bolan in the last elections and thus, the learned counsel argued that the respondent No. 3 was a returned candidate in such election not against the seat of a 'Peasant' but contested election against the general seats of the Union Council, Haji Shehr of District Bolan. Mr. M.
Aslam Chishti also contended that the respondent No. 3 is a defaulter of Agricultural Development Bank of Pakistan, Dandar to the tune of Rs. 2,11,928/- as per certificate issued by M.C.O., A.D.B.P., Dahar and therefore, not eligible on such score as well, to contest the Local Bodies Elections within the purview of Clause (ii) of sub-section (3) of S. 17 of Balothistan Ordinance No. I of 1999. M. M.
Aslam Chishti contended that since the respondent No. 3 was not eligible to contest the election of the Local Bodis against one of the Special Interests seats viz., 'Peasant' and also not qualified to the membership of the Local Council as being a defaulter of Bank dues therefore, his candidature be declared to be void and of no legal effect including the impugned orders and for any consequential relief which may be deemed fit and proper by the Court. Mr. Muhammad Aslam Chishti in support of his pleas placed reliance on the reported judgments i.e. 1992 MLD (Quetta) page 1959 and PLD 1993 (Quetta) 75.
5. Mr. M. Riaz Ahmed the learned counsel for the respondent No. 3.Contended that the petitioner did not object to the candidature of the respondent No. 3 at the time of the scrutiny of the nomination papers conducted by the Returning Officer and for the first time in appeal his candidature was assailed but without any specific plea hence the Appellate Authority in the proper exercise of jurisdiction vesting in it rejected his appeal therefore, according to the learned counsel the specific objections taken in this petition about the candidature of the respondent No. 3 cannot be allowed to be raised for the first time. He placed reliance on PLJ 1994 (Quetta) 43 (D.B.). Mr. M. Riaz Ahmed with reference to the revenue extracts of jamabandies available on record, authenticated copies whereof placed on record vide Misc. Application submitted by the respondent No. 3; contended that the ownership of the respondent No. 3 as per such documents do not exceed 5 acres of land therefore, the respondent No. 3 is not ineligible to contest the Local Bodies Election against the seat of 'Peasant' within the meaning of sub-section (39) of Section 3 of Balochistan Local Government Ordinance. The learned counsel emphatically contended that on the basis of documents available on record the respondent No. 3 cannot be deprived to contest Local Bodies Election on any ground and the impugned orders were passed by the competent forums in accordance with law.
Mr. Additional Advocate General submitted that the respondent No. 3 in view of the revenue documents about the ownership of the respondent No. 3 is not eligible to contest the election against the seat of 'Peasant'.
6. We have considered the contentions putforth on behalf of the parties learned counsel and the views expressed by the learned Additional Advocate General, in the light of the relevant provisions of law, Rules and the documents available on record. The case-law cited by the learned counsel for the parties have also been gone through carefully including the impugned orders. It may be seen that during the arguments being advanced by Mr. M. ,Riaz Ahmed, he did not stick to the plea taken in the counter-affidavit that the revenue extracts annexed with the petition pertaining to the landed property of the respondent No. 3 are not genuine documents and contained fraudulent entries and that the respondent No. 3 has no concern with such property or documents, rather; conversely the learned counsel contended that the area of the lands as per revenue extracts owned by the respondent No. 3 does not exceed 5 acres and thus the respondent No. 3 is not ineligible to contest the election. In order to resolve controversy about the total area of the land owned by the said respondent as per revenue documents based upon mat-hematical calculation therefore, we deemed it proper to call for Sadar Qanoongo District Quetta for assisting the Court in making calculation in acreage, and; accordingly Mr. Bashir Ahmed attended the Court and made the required calculation of the total area of the land as per extracts of jamabandies in presence of the parties learned counsel, and in his own hand under his signature indicating that the total area of the land held by the respondent No. 3 a per revenue extracts of the jamabandies bearing khewat and khatooni No. 1/1-14 comes to 60 acres 2 rodes. The private respondent -who was present in Court, was confronted to the authenticated revenue extracts to which he stated that he owns the landed property as per these documents and submitted that such land property is the joint holding of the Shahwanies. Perusal of these documents/revenue extracts, reveal that the share of the land held by the respondent No. 3 in the doing holding has been separately recorded with reference to the measurement of the land in Rods and Poles. Mr. M. Riaz Ahmed also did not dispute the revenue entries and the measurements recorded in such documents nor he disputed the calculation of the area of land converted into acreage as per recorded measurements and thus, it is abundantly clear that the respondent No. 3 is the owner of the landed property measuring more than 5 acres.
7. Apart from the general seats to the membership of the Local Councils representation of the Special Interests seats viz., 'Peasant', worker and woman have also been created by Section 15 of Balochistan Local Government Ordinance, 1980 as being the one of the integral parts of the composition of the Local Councils by virtue of Section 12 of the Ordinance, election whereof is regulated by Rule 50 of the Balochistan Local Government (Election) Rules, 1983 and the qualification to the membership of a Local Council Elections against the reserved seats of a 'Peasant' has been given in sub-section (39) of Section 3 of Balochistan Local Government Ordinance No. II of 1980 which reads as under-- "Peasant" means a person who is a landless tenant or who for a continuous period of five years preceding the year in which the election is held is or has been the owner of not more than five acres of land and engages himself personally in cultivation for his maintenance."
Undoubtedly as per definition of the word 'Peasant' it can be safely concluded that in view of the above noted admitted revenue documents, respondent No. 3 is the owner of the land measuring more than 5 acres and for such -reasons probably it has not been claimed by him that he is a landless person and thus appropriately in the nomination paper filed by him, he has shown himself as 'Zamindar'. As per definition referred to above, owner of a land not more than 5 acres no doubt will be eligible to contest the Local Bodies Election against a 'Peasant' seat provided that he for a continuous period of 5 years preceding the year in which the election is held is or has been the owner of such land and engages himself personally in cultivation for his maintenance and thus, if these specified conditions are not available, even the owner of a land not more than 5 acres will not be eligible to contest the election against the seat of a 'Peasant'. A candidate who strictly qualifies to the conditions of a 'Peasant' defined in sub-section (39) of Section 3 of Balochistan Ordinance No. II of 1980 will only be eligible to contest election against such reserved seat and the object of the law for providing separate seats is to ensure induction of deprived classes of people of Special Interests who might have to face serious ordeals to be elected as members of Local Bodies, 1992 MLD 1959 ref. It has been held in the afore-mentioned reported judgment of the Hon'ble Division Bench that Court has to strike a balance and protect oppressed classes to save the system from being eroded and referring to the facts of the case, of which the Hon'ble Division Bench was seized of, observed that the petitioner being a licenced arms dealer, belonged to rich family of area and about to acquire share of landed property, left by his deceased father could not be deemed to be a peasant within the definition contained in Section 3(39) of Balochistan Local Government Ordinance. In the other reported judgment of the Hon'ble Division Bench f this Court i.e. PLD 1995 75, as well cited by Mr. M. Aslam Chishti, it has been held by the Hon'ble Court, while dilating upon the provisions cf Section 3(39) of Balochistan Local Government Ordinance, 1980, that it expressly controls and regulates eligibility of a candidate offering to contest election against Special Interest seat of 'Peasant' and indirect tactics could not be devised to thwart object of law and deny members of special class from their participation in Local Bodies.
8. As held in the above-quoted authorities in the light of provisions of S. 3(39) of Balochistan Ordindoce No II, 1980 there is no doubt to hold in view of the revenue extracts referred to above that the respondent No. 3 was not eligible to contest the Local Bodies Election against the 'Peasant' seat.
9. Reverting to the contention of Mr. M. Riaz Ahmed that the petitioner did not raise objection to the eligibility of the candidature of the respondent No. 3 before the Returning Officer nor even in appeal, as canvassed by the petitioner's learned counsel in this Court. Admittedly, the petitioner challenged the eligibility of the respondent No. 3 to contest the Local Bodies Election against the 'Peasant' seat by filing appeal as provided under Rule 18 of the Balochistan Local Government (Election) Rules, 1983, although, in the memo. Of appeal, copy whereof is available on record, objections to the eligibility were not specifically taken and the perusal of the order passed by the Appellate Authority further reveals that the petitioner was not represented by any Advocate nor does it appear as to on what grounds the eligibility of the respondent No. 3 was questioned but such reason alone in the circumstances of the case discussed herein above and the ground taken in the memo. Of appeal about the ineligibility of the respondent No. 3 to contest the election, will deprive the petitioner from invoking the Constitutional jurisdiction of this Court wherein substantial grounds about the ineligibility has been raised in the light of the provisions of S. 3(39) of Balochistan Local Government Ordinance, not attended to by the competent forums below, despite of the fact that the respondent No. 3 specifically mentioned his occupation in the nomination form as 'Zamindar'. Moreover, Mr. Zafar Magsi, Director Local Government, during the course of hearing produced original record of the nomination paper of the respondent No. 3 maintained by the Returning Officer, for perusal. He also placed on record photostat copy of the statement in writing under the signature of the candidates to the Special Interests seat of the District Council, Quetta against reserved seats of 'Peasant' submitted to the Returning Officer i.e. The petitioner, respondent No. 3 and the other contestants, to the effect that none of them is the cultivating owner of more than 5 acres of land and that they have no objection to the candidature of each other. Mr. Zafar Iqbal Magsi under his signature placed such photostat copy of the document on record and perused by the learned counsel for the parties. Mr. M. Riaz Ahmed did not dispute this document and on the strength thereof contended that the petitioner is estopped by his conduct to question the candidature of the respondent No. 3 so in such view of the matter, assuming that had such document in writing was submitted by the candidate to the Returning Officer, it was all the more required on the part of the Returning Officer to have had satisfied himself with great care and caution that the respondent No. 3 or any other candidate was/were eligible to contest the Local Bodies Election against reserved 'Peasant' seats or otherwise but it appears that the Returning Officer blindly acted upon such document and in violation of the provisions of S. 3(39) of Balochistan Local Government Ordinance, 1980. The contention above- noted of Mr. Riaz Ahmed, is devoid of any substance because the stated agreement/settlement between the parties cannot operate as estopple against statute or which defeats the provisions of law, hence the petitioner did not suffer any legal disability to question the candidature of the respondent No. 3 in accordance with law.
As above-noted by means of Civil Misc. Application No. 795/99 besides the authenticated revenue extracts of jamabandies the petitioner also placed on record a certificate issued by A.D.B.P. Dandar to the effect that the respondent No. 3 is a defaulter of the Bank dues, on the strength whereof Mr. Muhammad Aslam Chishti contended that the respondent No. 3 is not qualified to contest the election as being a defaulter of the Bank dues within the meaning of clause (ii) of sub-section (3) of Section 17 of the Balochistan Local Government (Amendment) Ordinance, 1999. Since such document was not annexed with the petition and subsequently during the course of arguments was placed on record through the Civil Misc. Application but opportunity to rebut the same was not afforded due to the urgency of the matter, to the respondent No. 3 and also the document being not the certified copy of any public document or Bank record therefore, was kept out of consideration.
In view of the foregoing discussion and reasons we found the impugned orders to be violative of the law and the respondent No. 3 to be not eligible to contest the election of the Local Bodies against the seat of 'Peasant' therefore, vide our short order dated 16.4.1999 the impugned order passed by the Returning Officer and the Appellate Authority (to the extent of the respondent No. 3) were set aside and the respondent No. 3 declared to be not eligible to contest the Local Bodies Election for the Special seat of the District Council, Quetta i.e. The 'Peasant' seat, directing the Returning Officer to delete his name from the list of the validly nominated candidates.
The above are the reasons of our short order. .