JUDGMENT IFTIKHAR HUSSAIN CHAUDHRY, C.J.
Petitioner, Amanullah Sial, respondent No. 1 and respondents Nos. 2 to 4 submitted nomination papers for the office of Tehsil Nazim. Jhang. The nomination papers of the candidates were accepted by the Returning Officer. Election to the office of Tehsil Nazim have yet to be held. Present petition has been submitted on the ground that Amanullah Sial/respondent was elected as Member of Union Council No. 78, Hassan Khan, District Jhang and took oath of office as Union Nazim and, thereafter, could not have taken part in the election of Tehsil Nazim, in view of the bar contained in section-158 of the Punjab Local Government Ordinance, 2001.
2. Notice of the petition was issued to respondents. Learned counsel for the petitioner, learned counsel for respondent, learned Standing Counsel for the Federation of Pakistan and learned Addl.
Advocate-General have been heard in the matter.
3. Learned counsel for the petitioner contended that bar contained in section 158 was specific, unambiguous and clearly debarred respondent No. 1 to contest the election to the office of Tehsil Nazim, It was submitted that the High Court had already decided that a Union Nazim, when he takes the oath of office, shall be deemed to have assumed the office of Union Nazim and as the respondent had taken oath of office and had assumed the office of Union Ns dm, therefore, he could not take part in the election.
Learned counsel -for the respondent, on the other hand, contended that when nomination papers were. Submitted by respondent, he was qualified and eligible to have contested the election and now bar contained in section 158 of the Punjab Local Government Ordinance did not operate against him. According to learned counsel, the respondent could withdraw from the election even on the day, when the polling was to take place, It was submitted that the respondent was qualified and disqualification contained in section 158 of the Ordinance could not be imported into the qualifications, It was also submitted that petition was not competent as nomination papers of respondent were duly accepted and those could not be rejected by this Court in exercise of Constitutional jurisdiction. Learned counsel referred to 2003 CLC 1068 and PLD 1998 Lahore 414 in support of his contentions. Learned Standing Counsel and learned Addl. Advocate- General supported the stand taken by petitioner and submitted that a Union Nazim, after assumption of the office, could not take part in the election to the office of Tehsil Nazim and he was bound to withdraw the nomination papers or his nomination papers could be rejected.
4. Section 158 of the Punjab Local Government Ordinance, 2001 reads as under:- "158. Bar against Nazims for dual membership etc.- (1) A Zila Nazim, Naib Zila 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.
(2) Nothing in sub-section (1) shall apply to a Union Nazim or Naib Nazim, becoming members of the Zila Council or Tehsil Council, or member elected against reserved seats in the Zila Council or Tehsil Council, or being elected as Naib Nazim or, as the case may be, Naib Tehsil 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 one time."
Sub-section (1) of section 158 provides that a Union Nazim amongst others, may contest election for any other political office after resigning from the office of Nazim or, as the case may be, Naib Nazim. The provisions of the Punjab Local Government Ordinance, unfortunately, were not implemented in letter and spirit. After elections of the Union Nazims and Councillors, they ought to have been administered oath of office, prior to commencement of proceedings for election of Tehsil Nazims and Zila Nazims. Since this was not done, an anomalous situation was created.
Certain petitions were filed before this Court when elected Union Nazims submitted nomination papers for the office of Tehsil Nazims or other officers. The view of this Court was that prior to assumption of office, an elected Union Nazim could submit nomination papers and after assumption of office, he had an option, either to retain the office, or to withdraw from the office of Tehsil Nazim or, for that matter, any other office, In this case, respondent No: 1 was elected as Union Nazim. He submitted nomination papers and, at that time, bar contained in section 158 of the Punjab Local Government Ordinance was not applicable to him. His nomination papers, therefore, could not have been rejected by the Returning Officer. Respondent No. 1, however, took oath of office of Union Council No. 78, Hassan Khan, District Jhang and, thereafter, could take part in the election only after he resigned from the office of Union Nazim. He, so far, has not done that.
Obviously, he cannot be allowed in view of the clear provisions of section 158 of the Punjab Local Government Ordinance to take part in the election of the Tehsil Nazim, In case he is allowed to take part in the elections, this would be in violation of the statutory provisions.
5. Under Article 223 of the Constitution of Pakistan, a person can contest election for different offices but, thereafter, he is required to retain only one office, In the Punjab Local Government Ordinance, a deviation has been made from the above principle. Now, an elected Union Nazim, inter alia, is not debarred from contesting the election for other political offices prior to assumption of office. Holding, at the same time, of different political offices, and contesting election for different political offices, are altogether different things. If a Union Nazim was debarred from holding different offices, only then he could have been allowed to contest the election. Since this is not the legal position, respondent could not be allowed to contest the election for the office of Tehsil Nazim, unless he resigns from the office of Union Nazim, which office has since been assumed by him after taking oath of the office, In order to take part in the elections, he has to forego the office of Nazim of Union Council, and if he retains the office, then cannot be permitted to contest the election. .6. As a consequence, the petition is allowed. The order passed by the Returning Officer, whereby nomination papers of respondent No. 1 were accepted, is hereby set aside. The Returning Officer shall scrutinize the nomination papers of respondent keeping in view the later developments and, thereafter, pass an appropriate order thereon, In case respondent No. 1 does not resign from the office of Union Nazim or does not withdraw his nomination papers, the same shall be rejected by the Returning Officer.
7. The parties to appear before the Returning Officer for the office of Tehsil Nazim, Jhang, on 21.12.2005.