Petitioners were candidates in election for Nazim and Naib Nazim to the Union Council No. 37 District Khushab. Respondents No. 1 and 2 also filed their nomination papers for the same offices.
Petitioners No. 1 and 2 filed objections at the time of scrutiny of their nomination papers. The objections were accepted and nomination papers of Respondents No. 1 and 2 were rejected by the learned Returning Officer vide his order dated 23.7.2005, holding that respondent No. 1 was not qualified in terms of clause(1)(e) of Section 152 of the Punjab Local Government Ordinance, 2001.
2. Respondents No. 1 and 2 filed an appeal before the learned District Returning Officer Khushab who vide order dated 27.7.2005, accepted the appeal hand Respondents No. 1 and 2 were permitted to, contest the election. The present writ pctition has been filed to impugned the order dated 27.7.2005 passed by the learned District Returning Officer.
3. The learned counsel for the petitioner contended that sub-section (1)(e) of section 152 clearly lays down that "A person shall qualify to be elected or to hold an elective office or membership of a local Government, if he has academic qualification of not less than matriculation secondary school certificate or equivalent from a recognized institution, for contesting the election of a Nazim or a Naib Nazim." Learned counsel submits that Respondents No. 1 and 2 have annexed with their nomination papers "Sanadats" which are not issued by any recognized institution. According to him the "Sanadats" were issued by Ittehad Al-Madaris Al-Arabia Pakistan, Daul Alum Islamia Anwarul Alum Powerati Mardan. Learned counsel in this regard produced a letter of Higher Education Commission Islamabad dated 7.4.2001. According to the learned counsel for the petitioners respondents were not qualified in the above terms, therefore, they were disqualified to contest the election . The learned counsel pointed out some other disqualification of respondents No. 1 and 2 but his main focus and decisive attack remained on disqualification mentioned above.
4. The Respondents No. 1 and 2 were noticed on 3.8. 2005 and the case was fixed for 8.8.2005. On 8.8.2005 respondents did not appear, the case was adjourned for 10.8.2005. On 10.8.2005. On the request of Ch. Muhammad Ramzan, Advocate, who appeared for Respondents No. 1 and 2 the case was adjourned to 11.8.2005,. After arguments of the learned counsel for the petitioner on 11.8.2005, the learned counsel for Respondents No. 1 and 2 submitted that on the same point, an appeal was pending before the Hon'ble Supreme Court and the final order was likely to be pronounced soon i.e. On 12.8.2005. In view of the request of learned counsel for respondent No. 1 and 2 the case was adjourned for 15.8.2005. On 15.8.2005, on the request of learned counsel for Respondents No. 1 and 2, the case was adjourned to 17.8.2005.
Though the decision was announced on 16.8.2005, but copy of the orders was not available on 17.8.2005. It was requested by the learned counsel for the respondent No. 1 and 2 that he was unable to argue his case as copy of the orders was still not available; parties may be allowed to contest the election due on 18.8.2005 (the following day), subject to final decision of the writ petition, in light of the order of the Hon'ble Supreme Court. The case was adjourned to 22.10.2005.
For convenience and to rule out any misunderstanding order dated 17.8.2005 is reproduced as below:--- "17.8.2005 Presence as before.
I have been informed that a Bench of the Hon'ble Supreme Court, presided by the Hon'ble Chief Justice of Pakistan, sitting at the Lahore Registry, have announced their final order on the same point. On the other hand, the election is due tomorrow i.e. 18.8.2005. In such situation, I have no option except to keep pending this petition before me. And allow parties to contest election which will be subject to order of this Court in this writ petition which will be taken in the light of order of the Hon'ble Supreme Court, as ordained in Article 189 of the Constitution. Adjourned to 22.8.2005." .
5. On 22.8.2005, the case was again adjourned to 6.9.2005 as copy of the orders was not yet ready, as agreed between the parties. The 'order of 22.8.2005 reads as under:- "22.8.2005.
Adjourned to 6.9.2005, as agreed."
6. On 6.9.2005, the learned counsel for the Respondents No. 1 and 2 submitted that Respondents No. 1 and 2 had been declared returned candidates. He further submitted that respondents are matriculate and added that they have passed additional subjects of English, Urdu and Islamic Studies, therefore, the requirement of section 152(1)(e) of Punjab Local Government Ordinance, 2001 has been fulfilled. He sought time to produce the required result which has not been produced till to-date despite above statement. He also submitted that after the notification of result of election, the writ was not competent and the petitioners should now approach to the concerned Election Tribunal to seek their remedy.
7. On the other hand, the learned counsel for the petitioners submitted that proceedings in this writ petition before this Court started prior to the election. He also submitted that parties bound themselves that election result would be subject to the final order of this writ petition to be delivered in the light of the judgment of the Hon'ble Supreme Court as it is evident from the order- sheet. He added that the learned counsel for the respondents No. 1 and 2 is estopped at this stage to submit that this Court is denuded of power to decide this writ petition. He further submitted that impugned order which was passed by the learned DRO was illegal at the very outset and there was hardly any reason for any factual inquiry, therefore, this Court was competent to decide this writ petition in light of judgment on the same point of Hon'ble Supreme Court dated 16.8.2005 in civil petition for leave to appeal No. 1569-L of 2005 and five other petitions.
8. I have heard the learned counsels. As already mentioned in the foregoing paras, particularly order dated 17.8.2005, the learned counsel for Respondents No. 1 and 2 categorically requested that he would be bound by the decision of this Court to be decided in the light of the order of the Hon'ble Supreme Court on the same point in the abovementioned case. He also requested that he needed time to read judgment of the Hon'ble Supreme Court to address this Court. It is not appropriate for him to contend that since Respondents No. 1 and 2 have been notified as successful candidates, therefore, this writ petition should be disposed of and petitioners may seek their remedy from the Election Tribunal. The case, on 17.8.2005 was adjourned on his request as, according "to him, certified copy Of the order of Hon'ble Supreme Court was not available. On 17.8.2005, this Court know that Election Tribunals would be constituted and this fact was also known to the learned counsel for the parties, including the learned counsel for Respondents No. 1 and 2 yet the learned counsel for Respondents No. 1 and 2 made a request that the parties be allowed to contest election and the result of election would be subject to the final decision of this Court.
Therefore, in view of the peculiar features of this case, narrated above in detail, this Court has jurisdiction to decide this matter in light and guidance of the recent decision of the Hon'ble Supreme Court delivered on 16.8.2005 However, before that, some earlier decisions of superior Courts are proposed to be discussed as earlier.
9. On powers of High Court to issue a writ of certiorari the Hon'ble Supreme Court in Rahim Shah's case held as under:- "PLD 1973 SC 24"
"Cases of no evidence, bad faith, misdirietion or failure to follow judicial procedure, etc. Are treated as acts done without lawful authority and vitiate the act done or proceedings under taken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior Tribunal in support of some point material to the conviction or order, certiorari will be granted."
10. In the present case, the learned DRO passed impugned order clearly in disregard of provisions of section 152(1)(e) of the Punjab Local Government Ordinance, 2001. Not only that, the learned counsel for Respondents No. 1 and 2 requested this Court that this case be not decided until the certified copy of the order of the Hon'ble Supreme Court is available and gone through, though he knew very much, that after election i.e. 18.8.2005, Election Tribunals would be in place. So if the request of the learned counsel for respondents No. 1 and 2 was allowed, should he now be permitted to back out? Would it not mean to allow something unfair and unjust and taking undue advantage of accommodation shown by this Court on request of the learned counsel for respondents No. 1 and 2 on 17.8.2005? This would not be allowed to happen in the honour, and majesty'of the law as well as this Court.
11. The Hon'ble Dacca High Court held in a case where parties had bound themselves to refer the matter to the Arbitrator. Subsequently one party tried to challenge the impugned order strictly on legal grounds, the Court held as under:- "The parties having agreed to refer the dispute to arbitration took the matter outside the ambit of legal rights. Their agreement to refer this dispute to an Arbitrator implies consent to have the disputes settled without reference to strict legal provisions. {Abdul Halim vs. Faizunnessa Bibi (PLD 1969 Dacca 670)}.
12. Article 225 of the Constitution provides that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). Provisions of Article 199 of the Constitution are subject to the Constitution. Constitution does not provide such provisions for dispute regarding elections of local councils, therefore, rule 65 of the Punjab Local Government Elections Rules, 2005 cannot be equated with provision of Article 225 of the Constitution in any sense. Yet in certain circumstances, the superior Courts of the country have held that the High Court can interfere under its Constitutional jurisdiction. For example the Hon'ble Supreme Court in Ghulam Mukafa Jatoi's case approved a minority decision expressed in an earlier case reported as Election Commission of Pakistan vs. Javed Hashmi (PLO 1989 SC 396). In Ghulam Mustafa Jatoi's case the Hon'ble Supreme Court held as under:--- "In view of the above peculiar features, the abovenoted case is distinguishable from the present case. In the above report, the minority view was rendered by one of us, Nasim Hassan Shah, J. (as he then was), in which it was held that the order of the Returning Officer altering the approved list and substituting it with a new list of the staff was without jurisdiction and the same was fit for interference under Article 199 of the Corstitution. We are inclined to hold that the appellant's above Constitution petition was competent and the High Court., by declining to exercise its constitution jurisdiction for the reason quoted hereinabove has failed to exercise jurisdiction vested in it.
13. Section 152 of the Punjab Local Government Ordinance, 2001 and Election Rules, 2005, particularly rule 3 of the Punjab Local Government Election Rules, 2005, make it incumbent on the Chief Election Commissioner and other Election Functionaries to ensure that elections are held fairly and justly and in accordance with law.
In this context to ensure strict observance of provisions of section 152(1)(e) was duty of the learned District Returning Officer. However, the respondents No. 1 and 2 managed to get their nomination papers accepted despite their disqualification detail of which has been mentioned in the preceding paras. The mandate of the law is very clear, therefore, it cannot be countenanced as helpless onlooker on the ground that election tribunal shall take care at the appropriate stage and in the meanwhile, the respondents No. 1 and 2 be allowed to reap the benefits of their disqualification etc.
14. In another case, a Division Bench of this Court held as under:- it is a settled principle of law that wherever this Court finds order by any tribunal, Court, or authority as without jurisdiction or in excess of jurisdiction or in manifest breach of some law, this Court has jurisdiction to come to the help of the petitioner and set said such order in Constitutional jurisdiction." (NLR 1992 Civil 696).
15. There is another aspect of this case and to elaborate that a reference may be made to a case decided by-a learned Single Bench of this Court. A writ petition was filed before this Court whereby an election of a returned candidate was challenged by a candidate on ground of disqualification.
It was contended before the Court that respondent had been declared to be an elected member and that his name had been notified as such and that the notification was by itself a sufficient answer to an objection to a notice issued by the Court. His Lordship held as under:--- "I regret my inability to agree with this contention of the learned counsel. In quo-warranto proceedings the validity of the notification can be questioned and the mere fact that an elected person is in possession of a notification declaring him to be elected cannot dives t C. L. R. this Court of its jurisdiction to determine the validity of the notification itself."
16. In the instant case the disqualification was challenged before this Court before the election was held and it remained pending on request of the learned counsel for respondents No. 1 and 2 to await the order of the Hon'ble Supreme Court. The details of which have already been given and not required to be repeated. It would be sufficient to state that the present case is at better footing than the case mentioned above. So, even if this writ petition is treated as a writ of quo-warranto, challenging the disqualification of the respondents, it can be decided as the respondents No. 1 and 2 have manifestly breached and violated the provisions of section 152(1)(e) and suffering disqualification to held public office, their success or notification of their success cannot bar this Court to decide the present case.
17. Hon'ble Supreme Court, giving its final verdict in C.P.L.A. No. 1569-L of 2005 along with other five petitions decided on 16.8.2005, has held in its para. 28 as under:- "Thus, it is concluded that:--- (i)
If `Sanad' i.e. Shahadat-ul-Aalmia-Fil-UloomUI-Arabia-Wal-Islamia obtained by a candidate from a "Deeni Madrash" (seminary), which is duly recognized by UGC/HEC and its holder had passed examination of additional subjects as it has been mentioned in notification dated 17th November 1982 (No. 8-418/ Acad/82/128) issued by UGC/HEC and equivalence certificate has also been issued by Higher Education Commission under Section 10(o) of the Higher Education Commission Ordinance 2002, then it is acceptable for the purpose of employment and for any other purpose `including the elections of Local Government.
AND
(ii) Sanad' of Shahada-tul-Sanvia-tul-Aama (SSC) and Shahada-tul-Sanvia-tul-Khasa (HSSC), if obtained by a candidate from recognized "Deeni Madrasha" by UGC/HEC and he has also passed examination of English, Urdu and Islamic Studies, from any Board of Intermediate and Secondary Education and had obtained equivalence certificate from IBCC, in pursuance of Notification No. IBCC/ES/Misc/1219, dated 21st July, 2005 read with Notification No. F.5- 5/90-JAE(CW), dated 22nd April 1990 he shall be qualified to contest the Local Government/Elections, according to the provisions of Section. 152(1)(e) of Punjab Local Government Ordinance, 2001."
18. Under Article 189 of the Constitution, any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. Therefore, in view of the provisions of Article 189 of the Constitution, the statement of learned counsels of the parties made before this Court on 17.8.2005 and 22.8.2005 and obvious disqualification of respondents No. 1 and 2 this writ petition is allowed. The order of the learned District Returning Officer dated 27.7.2005 is set aside and declared illegal and of no legal effect on the ground that respondent No. 1 is not matriculate or possessed with equal education.
Consequent to that, the election of respondents No. 1 and 2 is declared void and the concerned authorities are directed to hold a fresh election of U.C. No. 37/Utta Janubi, Khushab because the votes cast in favour of respondents No. 1 and 2 cannot be treated as thrown away votes. .