' ZAICIUDDIN PAL, J.-The appellant contested election from peasant seat to Zila Council Sargodha.
His nomination paper from that seat was . Accepted by the Returning Officer concerned. A miscellaneous application was filed before the Election Authority to the effect that since nomination paper of the appellant as well as, of an another person Iftikhar Ahmad Kahloon from the aforesaid seat had been illegally accepted by the Returning Officer, therefore, the same might be rejected under section 17 of the Punjab Local Government Ordinance, 1979. Respondent No, 1 while entertaining the application stayed the election of the appellant on 12th of December, 1979.
Another application was also filed by respondent No, 2 against the appellant on 17th December, 1979 under the aforesaid provisions of law challenging the validity of the order dated 4th of December, 1979 of the Returning Officer accepting the nomination paper of the appellant. It was held after due inquiry and probe by the Election Authority that the appellant not being a peasant was not eligible to contest election to the Zila Council as such.
2. Writ Petition No, 753 of 1980 was filed by the appellant challenging the validity of the order of the Election Authority mainly on the ground that there being no evidence on record to show otherwise, the appellant was a peasant and as such was eligible to contest election, This plea was repelled by the learned Single Judge while agreeing with the finding of the Election Authority.
3. The present appeal has been filed on the ground that the Election Authority has no jurisdiction to deal with the matter under section 17 (2) of the Punjab Local Government Ordinance, 1979 as well as rule 13 of the Punjab Local Councils (Election Petitions) Rules.
1979. Subsection (2) provides that anything contained in subsection (1) of section 17 shall be construed to mean that the Election Authority has no power to inquire into any matter or pass any order in respect of anything relating to an election which can be called into question before the Election Tribunal by an election petition under the Ordinance. The, aforesaid rule 13 provides that the Election Tribunal shall declare the election of a returned candidate to be void if it is satisfied that the nomination of that candidate was invalid or the returned candidate was not, on the nomination day qualified for, or was disqualified from being elected as a member of the Local Council.
4. Mr. Kiramat Nazir Bhandari, learned Assistant Advocate-General, Punjab, appearing for respondent No, 1 as well as Mr. C. M. Latif Rawn, Advocate, learned counsel for respondent No, 2 have raised the following contentions :---
(i) Objection with regard to jurisdiction of respondent No, 1, The Punjab Local Council Election Authority, Lahore, was not raised before the Authority itself nor before the learned Single Judge in the grounds of writ petition nor during the arguments. As such it cannot be allowed to be raised at this stage.
(ii) The Election Authority has jurisdiction to interfere in the matter like the present one under subsection (1) of section 17 of the Ordinance till the notification of returned candidate is issued.
Since after the issue of notification remedy by way of election petition is available, therefore, before the issue of the notification jurisdiction vesting in Election Authority under subsection (I) of section 17 can be exercised by the same.
(iii)
(iv) Election petition can be filed by a contesting candidate, against a returned candidate after" the notification has been issued in his favour. Since respondent No 2 was not a contesting candidate, therefore, the only remedy available to him was as provided by subsection (1) of section 17 of the Ordinance.
(iv) The process of election started with the submission of nomination papers, was to end with the issue of the notification. No election petition was competent even by the contesting .Candidate against the acceptance of the nomination papers, hence the Election Authority was competent to examine the question of eligibility of the appellant in order to ensure that elections were conducted fairly, honestly and justly in accordance with the provisions of the Ordinance and the Rules.
(v) Section 103 of the Representation of the People Act, 1976 contains a similar provision like section 17 (1) of the Punjab Local Government Ordinance, 1979. Since the Election Commission can stop the polls at any stage of the election it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election, review an order passed by an officer under the Representation of the People Act, 1976 or the rules, including rejection of a ballot paper and to issue such instructions and exercise such powers, and make such consequential orders, as may, in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of the Act and rules, similarly the Election Authority in the present case enjoys the same powers under subsection (1) of section 17 of the Ordinance.
(vi) The scope of power to review as contemplated by subsection (1) of section 17 of the Ordinance having not been determined in the Ordinance itself ordinary dictionary meaning of the word 'review' would be attracted in the present case.
4. The main question involved in the present case is as to what is the effect of subsection (2) of section 17 of the Ordinance. The aforesaid provision provides that nothing contained in subsection
(1) shall be construed to mean that the Election Authority has power to inquire into any matter or pass any order in respect of anything relating to an election which can be called in question before the Election Tribunal by an election petition under this provision. Election has been defined in rule 2
(d) of the Punjab Local Councils (Election. Rules), 1979 framed under the Ordinance. It means an election held under the Ordinance and the Rules to fill a seat in a Local Council or of a Chairman or of a Vice-Chairman. It means a process covering different stages starting with the submission of nomination papers culminating in the filling of a seat in a Local Council etc. Returned candidate has been defined in rule 2 (o) of the said Rules as a candidate who has been declared elected as a member, Chairman or a Vice-Chairman of a Local Council, but according to law a returned candidate in spite of having been declared elected as a member cannot take seat in Local Council nor perform his functions as such unless notification is issued in the Official Gazette. According to rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, an Election Tribunal shall declare the election of a returned candidate to be void if it is satisfied that
(a) the nomination, of the returned candidate was invalid,
(b) the returned candidate was not on the nomination day qualified for, or was disqualified from being elected as a member or Chairman or Vice-Chairman as the case may be,
(c) .
(d) .
' In the present case the appellant contested election to the Local Council in question from the reserved seat of a peasant. It has been held by the Election Authority that since his status as such was not covered by the definition of a peasant as given in section 3 (xxvii) of the Ordinance, therefore, he being ineligible to contest election from that seat, his nomination paper was invalid. It has been argued that since the appellant was not a returned candidate having been declared elected as a member to the Local Council nor his election had been notified in the Official Gazette, therefore, no election petition was competent. Further according to rule 16 of the Election Rules, 1979 no appeal is maintainable against the acceptance of nomination papers. A candidate whose nomination paper has been rejected can file an appeal before the Deputy Commissioner of the district or any other Officer authorised in this behalf by the Election Authority. It is submitted that in the circumstances since respondent No, 1, Punjab Local Council Election Authority, Lahore, is obliged under the law to conduct elections of the Local Councils honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules, therefore, it was rightly moved by respondent No, 2 to take action against the appellant in rejecting his nomination paper which was invalid, the appellant being not a peasant. It is true that respondent No, 1, Election Authority is obliged to conduct Local Councils 'elections honestly, justly and fairly and can take necessary action in that behalf. It is also correct that it enjoys powers to review an order passed by an Officer under the Ordinance or rules, so that Election may be held fairly. We are of the view that even if some restraint is imposed upon the powers of the Election Authority/Commission in the statute even then it is its duty to see that Elections are held on just and fair basis to a particular extent and it can take all necessary steps in that behalf. It may be mentioned here that no such restraint as provided by subsection (2) of section 17, of the Ordinance has been provided in section 103 of Representation of the People. Act, 1976 so far as the powers of the Election Commission to conduct the Elections to National and Provincial Assemblies on just and fair basis are concerned. There is no proviso to section 103 of the Act containing any such restriction as provided by subsection (2) of section 17 of the Ordinance.
5. As discussed above subsection (2) of section 17 of the Ordinance prohibits respondent No, 1, Election Authority from inquiring into any matter or pass any order in respect of anything relating to an election which can be called in question before the Election Tribunal by an election petition. The validity or otherwise of the nomination paper of a returned candidate can be challenged under 'rule 13 (a) of the Punjab Local Councils (Election Petitions) rules 1979. As such the Election Authority is obviously not competent to determine the validity or otherwise of nomination paper of a returned candidate. The argument that since the appellant was not a returned candidate at the relevant time, therefore, in order to ensure the conduct' of fair election, respondent No, 1 was competent to interfere no substance in view at the stage preceding the declaration of result has of the fact that such power has been specifically taken away under subsection (2) of section 17 of the Ordinance. This power has been given to Election Tribunals set up for disposing of election petitions. They have been authorised to see amongst other matters as to whether nomination of a returned candidate was valid and whether the said candidate was qualified on the day when nomination paper was submitted. The scope of powers of Election Tribunals having been specifically determined by law for deciding the matter in question and respondent No, 1 having been restrained from dealing with such matter it makes no difference if such question is decided by an Election Tribunal after the result of the Election is (notified. If the interpretation put on subsection (.1) of section 17 of the Ordinance by the learned counsel for the respondents is accepted then the provision as contained in subsection (2) of section 17 would become redundant as the Election Authority would replace the Election Tribunals in deciding the matters as contemplated by rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979. The intention of the legislature by introducing subsection (2) of section 17 o the Ordinance clearly appears in restraining the Election Authority from dealing with and deciding such matters as would be subject matters of Election petitions under rule 13 of the aforesaid Rules. The power o Election Authority to review an order passed by an Officer under the Ordinance or rules is subject to the provision as contained in subsection (2) of section 17 of the Ordinance. If the limitation as imposed by the aforesaid provision on the powers of Election Authority had not been there then situation may have been different but in presence of aforesaid subsection (2), Election Authority cannot deal with any such matter which can be dealt with by the Election Tribunals under rule 13 of the aforesaid Rules.
As such the provision as contained in section 24 of th Ordinance to the effect that no election shall be called in question except by election petition should be read in conjunction with section 17 (1)
(2) of the Ordinance.
6. Section 17 of the Ordinance was amended on 29th October, 1979 whereby this provision was renumbered having subsections (1) to (4). Since the Election Authority had already come into being, therefore, many petitions or complaints challenging the validity of elections held on 25th of September, 1979 were filed before respondent No, I and at the time when the aforesaid amendment was introduced on 29th of October, 1979 such petitions were already pending before it in large numbers. Subsection (3) of section 17 of the Ordinance provides that such petitions or complaints (Election petitions) as contemplated by subsection (2) of section 17 of the Ordinance pending before the Election Authority would be deemed to have abated. However, it was provided in subsection (4) that the Election Tribunals would not be debarred from taking into consideration the matters agitated in such petitions. It means that the legislature was quite clear in its mind that the Election Authority would not deal with such matters as contemplated by rule 13 of the aforesaid Rules which could be dealt with by the Election Tribunals. In this view of the matter the. Election Authority can take all such actions as are contemplated .By subsection (1) of section 17 of the Ordinance in order to conduct the elections on just and fair basis but it cannot deal with such matters which relate to an election and which can be called into question before an Election Tribunal through election petition under rule 13 of the aforesaid Rules. Subsection (2) as a matter of fact has demarcated the jurisdictional spheres of Election Authority and that of the Election Tribunals though it is not a proviso to section 17 (1) of the Ordinance, yet it has placed certain limitations upon the power of the Election Authority so far as matters relating to election which can be called into question through an election petition are concerned. As such the contentions raised at (ii to vi) above having no substance are hereby repelled.
5. Mr. Karamat Nazir Bhindari, learned Assistant Advocate-General, Punjab, while appearing on behalf of respondent No, 1 has contended that since the appellant has failed to raise any objection with regard to jurisdiction before respondent No, 1, Election Authority as well as before the learned Single Judge in the writ petition, therefore, he is not entitled to grant of discretionary relief under Article 199 of the Constitution. It is contended that it was obligatory for him to raise objection under subsection (2) of section 17 of the Ordinance before respondent No, 1 when the appellant appeared in compliance with a notice and further in the grounds of writ petition as well as during the arguments before the learned Single Judge. Reliance in this behalf has been placed upon Ghulam Mohi-ud-Din v. Chief Settlement Commissioner, Lahore and others (1) ; Miran Bakhsh v. Settlement and Rehabilitation Commissioner, Lahore and others (2); Sh. Nasim Anwar v. Income Tax Officer, Investigation Circle (III), Dacca and others (3), Idrees Ahmad Khan v. Syed All Raza and another (4) and Mst. Ghulam Fatima v. Muhammad. Hussain- and 5 others (5).
6. In PLD 1964 Supreme Court it was held that Proviso (c) to subsection (I) of section 21, Displaced Persons (Compensation and Rehabilitation) Act, 1958 was in the nature of an exception to the general power of review given by the opening words of the section and it clearly not only excluded the jurisdiction to review where an appeal or a petition for revision had already been preferred but also by the use of the mandatory word "shall" prohibited the authorities concerned from reviewing their own orders or the orders of their predecessors in such circumstances. It was held that the result of such prohibition was that if any such power was exercised by the Settlement authority concerned then it would be of no legal effect. It was held that a bar as contemplated above effectively took away the jurisdiction of review if the circumstances mentioned in the proviso were available. In spite of the fact that circumstances as mentioned in the aforesaid proviso (c) to subsection (1) of section 21 of the Act being available in that case writ was refused to be issued on the ground that objection with regard to jurisdiction of the Settlement Authority had not been raised at the appropriate time. It was observed by the Supreme Court in that case that the appellant before it knew that he had filed a second revision petition before the Chief Settlement Commissioner and it was a circumstance which prevented the Settlement Commissioner in law from exercising his power of review notwithstanding that the appellant not only did not raise any objection to the hearing of the review but actually participated it its hearing on merits. It was held that the principle upon which the writ was to be refused in such cases was not that jurisdiction had been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order was without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he bad stood by and allowed the Tribunal to usurp a jurisdiction which it (1) PLD 1964 SC 829 (2) PLD 1967 Lah. 81 (3) PLD 1968 Dacca 76 (4) PLD 1972 Kar. 493 (5)
PLD 1970 SC 729 did not possess knowing that the Tribunal rincerned was committing such an illegality in consequence of somet-Ang done by that person himself.
7. In PLD 1967 Lahore, the petitioner before the High Court was transferred a shop in Multan City by the Deputy Settlement Commissioner on 26th July, 1960. This transfer was, however, cancelled from his name by the Settlement and Rehabilitation Commissioner (Enforcement) on 1st of December, 1962. And the shop was ordered to be transferred to respondent No, 2 as an informer. The order was challenged on the ground inter alia that the petitioner before the High Court being a claimant displaced person and having been in possession of the shop since 1955 was entitled to its transfer and further that Sh. Muhammad Rafique, Settlement Commissioner (Enforcement) being not Settlement Commissioner of Multan district on 1st of December, 1962, was not competent to exercise as revisional jurisdiction against the petitioner. It was further pleaded before the High Court with regard to jurisdiction that since with effect from 13th January, 1962 clause (2) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was deleted, therefore, neither any reference could be made by the Enforcement Staff nor any Settlement Authority was left with jurisdiction to decide such reference in view of the law laid down by the Supreme Court in Muha,,:;mad Siddique v. Chief Settlement Commissioner and others (1). The High Court, however, refused to issue writ against the respondents inter alia on the ground that the plea with regard to jurisdiction of Sh. Muhammad Rafique, Settlement Commissioner having no jurisdiction to deal with the matter was never raised before him, and as such the same could not be allowed to be raised before the High Court.
8. It was held in P.L'D 1968 Dacca that the objection with regard to the time being inadequate for compliance of the orders, having not been taken below all well as in the writ petition was not available to be taken in the High Court during the arguments. The High Court also did not allow the aforesaid point to be agitated on the ground that the same had been agitated in the appeal filed before the Appellate Assistant Commissioner.
9. 'In PLD 1972 Karachi it was contended that the land in question was not acquired at the relevant time under section 4 of the Displaced Persons (Land Settlement) Act, 1958. The fact, however, remained that the appellant prior to that had himself invoked the jurisdiction of the Rehabilitation Officer and never objected to the jurisdiction of Mr. Anwar Kamal, Rehabilitation Authority concerned at any time during the departmental proceedings in spite of the fact that such proceedings remained pending for about three years and in the circumstances objection with regard to jurisdiction of Mr. Anwar Kamal to deal with the matter was not accepted.
10. The last case relied upon is the case reported in PLD 1976 Supreme Court. In that case the respondents before the Supreme Court had twice challenged the orders of the Assistant Collector in appeals before the Collector under section 6 of the Punjab Land Revenue Act. They had also appeared without protest before the Member, Board of Revenue and even in their review application challenging the jurisdiction of the revenue (1) PLD 1965 SC 123 authorities for the first time, they did not explain why they had not taken up this objection earlier. Their case at a later stage was that the revenue authorities had no jurisdiction to deal with the matter but prior to that they, themselves challenged the orders of the Assistant Collector in appeals before the higher revenue authorities meaning thereby that they themselves submitted to the jurisdiction of the revenue authorities. They also appeared before the Member, Board of Revenue as respondents but never raised any plea with regard to lack of jurisdiction on the part of revenue authorities. They raised such plea for the first time in their review application but without any explanation as to why such objection could not be taken up earlier. Keeping in view such conduct of the respondents it was held by the Supreme Court that the rule laid down in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner etc. Was attracted to the facts of the case and writ petition on that ground was liable to be dismissed. In the judgment the Supreme Court has also referred to Muhammad Afzal v.
Member, Board of Revenue (1). In that case the appellant before the Supreme Court was aggrieved of an order passed against him under the Sind Irrigation Act by the Board of Revenue on a revision filed by the respondent. The appellant challenged this order in the High Court in writ jurisdiction on the ground that the order was without jurisdiction, the Board of Revenue having no power whatsoever to entertain the revision under the aforesaid Act. The High Court dismissed the writ petition mainly on the ground that the appellant had waived his objection with regard to jurisdiction of the Board of Revenue by his conduct. The Supreme Court in appeal set aside the judgment of the High Court and it was held as follows :--- "If that were to be accepted as a good ground for denying to the subject the benefit of Article 98, actions in excess or perversion of public powers would gain enormous access of immunity. Like the law-and-order administration, the revenue administration, in its impact on the cultivator has all pervading authority which the individual cannot be expected to confront, on allegations of illegality on his own strength. The usual and the wise course that he takes is to submit for the time being, and seek his redress through the more powerful agency of the Superior Courts. These Courts have now been specially empowered to provide such relief. They cannot be permitted to diminish that authority by the imposition of such, a condition as that which the learned Judges have applied in this case.
' By mere submission, in the capacity of a respondent, to the authority of the Member, the appellants could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner."
' While referring to the case as reported in PLD 1967 Supreme Court it was observed in 1976 Supreme Court that it was not held in the former judgment that writ was barred in every case in which the petitioner had., failed to challenge the jurisdiction of the tribunal at the relevant time It was found that in order to invoke discretionary, remedy of writ petition the petitioner had to prove that he was a mere passive spectator having no power to prevent the commission of the illegality.
It was observe that (1)D 1907S C 314 such question could always be decided according to the facts and circumstances of each case. There may be a case in which a party may be able to make out a case for invoking the Court's discre tion because of the problems that had confronted him in challenging the legality of the tribunal before which it had to appear. With regard to the facts of the case of PLD 1976 Supreme Court it was held that the dispute in that case related to the claim under the Displaced Persons (Land Settlement) Act, 1958, and litigation about claims under the said Act was so common and so frequent that in the absence of some very strong and cogent evidence it was not possible to believe that the respondents were not able to assert their position properly before the learned Member, Board of Revenue.
' We are of the view that the facts of the case as reported in PLD 1976 Supreme Court which have been narrated above are quite different from the facts of the present case. In the present case as mentioned above the appellant was summoned by respondent No, 1, to appear before him after his election had been stayed. In compliance with the aforesaid order of the Election Authority the appellant appeared before it and contested the case though without any success. It is also correct that neither before the Election Authority nor before the learned Single Judge he raised any plea with regard to jurisdiction of respondent No, 1 to deal with the matter in view of subsection 2 of section 17 of the Ordinance. Section 17 of the Ordinance was amended on 29th of October, 1979, whereby it was renumbered as subsection (1) and subsections (2) to (4) were added thereto.
' The election to the seat of special interest was held on 12th December, 1979 and the same day it was stopped under the orders of respondent No,
1. It means that hardly 11 months before the impugned order was passed by respondent No, 1, the relevant provision as contained in section 17 was amended incorporating subsection (2) whereby jurisdictional spheres of the Election Authority as well as of the Election Tribunal were demarcated. The aforesaid provision being newly added and there being no case law at least not reported on the subject, it was not possible for the appellant to appreciate the real import of the provision as contained in subsection (2). Unlike the case of Mst. Ghulam Fatima reported in PLD 1976 Supreme Court, the point involved with regard to jurisdiction of the Election Authority in dealing with the matter in question had not yet been decided by any competent Court. In PLD 1976 Supreme Court such situation does not obtain. Litigation with regard to claims for transfer of evacuee land was so common and so frequent as observed by the Supreme Court at the time when the Assistant Collector passed his order that it was not possible to believe that the respondents in that case did not know that the revenue authorities had no jurisdiction to deal with the matter.
' We are of the view that on this basis the appellant has made out a case for invoking this Court's discretion to be exercised in his favour under Article 199 of the Constitution. In this view of the matter the case of Mst. Ghulam Fatima reported in P L 0 1976 Supreme Court is quite distinguishable from the present one The Rule of law, therefore, laid down in Muhammad Afzal's case reported in PLD 1967 Supreme Court will be applicable to the facts of the present case. The objection with regard to jurisdiction of respondent No 1, therefore, being question of law in the given circumstances of the case is allowed to be raised for the first time in this appeal and since it has been raised successfully, therefore, the appeal cannot be dismissed on account of waiver or acquiescence.
' We, therefore, set aside the order dated 19th January, 1980 passed by respondent No, 1 being without lawful authority and of no legal effect. The appellant will be allowed to contest election for the peasant seat of Zila Council, Sargodha, and the question of his nomination paper being invalid on account of his being not a peasant would be examined by the Election Tribunal in election petition, if filed under the law.
' The appeal is accepted in the aforesaid terms without any order as to costs, and the order, of the learned Single Judge dated 26th January, 1980 stands upset.