SYED SHABBAR RAZA RIZVI, J.--- The petitioner is a General Councillor in Union Council No. 146/7, Sargodha. The Nazim of the said Union Council was recalled, thus, petitioner was elected as an officiating Nazim as required under Section 156(7) of the Punjab. 'Local Government Ordinance, 2001 (hereinafter referred as Ordinance). Under the same section, a vacancy of Union Nazim is required to be filled through by-election within 120 days of the occurrence of vacancy in accordance with sub-section (1) of Section 148 of the Ordinance. By election to the seat of Nazim of Union Council No. 146/7 of Sargodha has been scheduled.
2. The petitioner also filed his nomination papers to contest for the seat of Nazim Union Council.
Considering himself subject to Section, 158 of the Punjab Local Government Ordinance, 2001, the petitioner resigned from post of officiating Nazim of the Union Council to contest the by-election.
However, respondent No. 3 filed an objection petition to the nomination papers of the petitioner.
The objection was accepted and petitioner's nomination papers were rejected on 15.2.2007 by respondent No. 2. The petitioner filed an appeal before respondent No. 1 which was also dismissed on 17.2.2007. The learned counsel for the petitioner has called in question before his Court the above mentioned orders.
3. According to the learned counsel for the petitioner, the respondents No. 1 and 2 failed to appreciate the law and rules on the subject, and passed incorrect and illegal orders. The petitioner has a constitutional and statutory right to contest the election and he cannot be deprived of the said right. The learned counsel further submits that the petitioner resigned from his office as required under Section 162 of the Ordinance.
4. The order of respondent No. 2 reads that . Nomination papers of the petitioner were rejected as he was not qualified to contest the election under Section 156(7) being officiating Union Nazirn. According to order of respondent No. 1, the petitioner had not resigned from his office. On the contrary, Secretary Union Council had certified that the petitioner was performing his duties as officiating Naib Nazim on the day of filing nomination papers. The respondent further observed that even if is ,presumed that the petitioner- appellant submitted the, resignation. It was not submitted to the competent authority in accordance with provisions of Section 83 of the Ordinance, 2001.
5. I agree to the proposition that the petitioner is not qualified to 'contest the election for the seat of Union Nazim, but for different reasons that referred to by the respondent No. 1, learned District Returning Officer/District and Sessions Judge, Sargodha. Under Section 87 of the Ordinance, there shall be a Union Council in each Union comprising 13 members. Under Section 148 of the Ordinance, Members of a Union Council including Union Nazim and Union Naib Nazim shall be elected through direct election based on adult franchise and on the basis of joint lectorate. Under Section 156(7) of the Ordinance when the office of Union Nazim and Union Naib Nazim fall vacant, the Members of concerned Union Council shall, by a majority vote elect an officiating Union Nazim or as the case may be, Naib Nazim from amongst its members and the person so elected shall continue to retain his office as a Member as well; provided that the officiating Nazim of Naib Nazim shall not be a candidate in the by-election to be held for the Union Nazim or as the case may be, Union Nazim.
Under Section 158 of the Ordinance, a Zila Nazim, Zila Nab Nazirn, Tehsil Nazim, Tehsil Naib Nazim, Town -Nazim, Town Naib Nazim, .Union Nazim and Union Naib Nazim may contest election for any political office after resigning from the office of Nazim, or as the case may be, Naib Nazim. It is further provided that a member of the above-mentioned councils may contest election for any other political office without resigning from the membership of such council. It is also provided that such member shall not hold more than one office at one time. The above-mentioned list of Nazims and Naib Nazims do not include officiating Nazim of any council including a Union Council. That means provisions of Section 158 of the Punjab Local Government Ordinance, 2001 are not applicable to Officiating Nazim of a Union Council. According to the Ballentine's Dictionary, to officiate means to oversee. Therefore, officiating Nazim means a person who oversees or look after work of Union Nazim in his absence or until his election. And according to Section 156(4) of the Ordinance, a vacancy of Union Nazim or Union Naib Nazim shall be filled through by-election within 120 days of occurrence of the vacancy. My view is further strengthened by proviso to sub-section
(7) of Section 156 of the Ordinance, which reads as under:--
6. "Provided that the officiating Nazim or Naib Nazim shall not be a candidate in the by-election to be held for the Union Nazim or as the case may be, Naib Nazim."
Above view is further supported by provisions of Section 158 of the Ordinance which bars holding dual membership. It does not contain office of officiating Nazim in the above context. Moreover, Sections 156 (6) & (7) of the Ordinance allow officiating Nazims of all the Councils mentioned therein to retain their offices as a member also, their holding office of officiating Nazim does not bar them to nold office of a Member, as a second office despite provisions of 2nd proviso of Section 158 which reds: "Member shall not hold more then one office at one time". An officiating Nazim is not considered by law as a permanent or regular incumbent, that is why, bar contemplated under Section 158 does not (11.. R. include officiating Nazim An officiating Nazim or Naib Nazim holds office temporarily to overseed the work of Nazim or Naib Nazim until they are elected in a by-election as no office can be left vacant even for a single day. Therefore, an officiating Nazim/Naib Nazim may function from the day of his election until arrival of an elected Nazim/Naib Nazim within 120 days of the occurrence of vacancy. If officiating Nazim/Naib Nazim was also allowed to resign to contest in by-election, it would lead to vacuum and inconvenience to the functioning of the respective counsil/union council. Thus, the provisions of proviso of sub-section (6) and proviso of sub-section (7) of Section 156 expressly provide that officiating Nazim of Zila Council, Tehsil Council, Town Council and Union Council shall not be a candidate in by-election to be held for the respective councils: Therefore, whether the resignation was tendered by the petitioner or not, he' could not and cannot contest in by-election as, it is expressly barred by provisions of Sections 156 of the Punjab Local Government Ordinance, 2001.
7. As indicated above, an officiating Nazim is a different person than a Nazim. The provisions of Section 158 are not applicable to an officiating Nazirn. Likewise, provisions of Section 83 or 91 of the Punjab Local Government Ordinance, 2001 are also not applicable to an officiating Nazirn. The learned District Returning Officer/District and Sessions Judge,. Sargodha wrongly referred to Section 83 to hold that resignation of the petitioner was not submitted to the competent authority.
Section 83 refers to resignation of a Union Nazim. Section 83 reads as under:--- "The Union Nazim, may resign from his office .By tendering resignation in writing addressed to Naib Zila Nazim.
Section 91 reads as under:--- "Naib Union Nazim may resign from his office by tendering resignation in writing addressed to Naib Tehsil-Nazim."
Both the above sections do not mention resignation of officiating Nazim or Naib Nazim. As a matter of fact, the whole Ordinance does not provide for resignation of an officiating Nazim or Naib Nazim.
The reason for not providing so is obvious. As elaborated above, an officiating Nazim or Naib Nazim holds office only temporarily from the day vacancy falls until by-election is held within 120 days of the occurrence of vecancy. According to the new illustrated Oxford Dictionary, Volume H, Page 1170, "Officiate" means to act in some official capacity especially on particular occasion..
8. Above are the reasons on basis of which, I hold that an officiating Nazim or Naib Nazim of any council is not entitled to contest by-election as he is expressly barred by Sections 158(6) and (7) of the Ordinance, even if he resigns from the office of officiating Nazim. I further hold that an officiating Nazim or Naib-Nazim of all Councils, under the Ordinance, is a separate entity than the'
Nazim and Naib Nazim of such Councils.
9. As a sequel to the above discussion, this writ petition is dismissed, in limine. .