SYED ZAHID HUSSAIN, J, ELECTION TRIBUNAL.--- In these appeals i,e, E.A. No,119-A of 2007, E.A.
No,190-A of 2007, E.A. No,176-A of 2007 and E.A. No,196-R of 2007, the Nazims/Naib Nazims, who were desirous of contesting the general elections scheduled to be held on 8-1-2008, their nomination papers were either accepted or rejected by the respective Returning Officers whereagainst these appeals have been filed under section 14(5) of the Representation of the People Act, 1976. Since issue in all these connected appeals is about the true import and content of section 158 of Punjab Local Government Ordinance, 2001, we have heard the learned counsel and the learned Additional Advocate-General, Punjab as well in this matter.
2. The provisions of section 158 of Punjab Local Government Ordinance, 2001 are reproduced for ready reference:--- "158. Bar against 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: 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 at one time.
(2) Nothing in subsection (1) shall apply to a Union Nazim or Naib Union Nazim, becoming members of the Zila Council or Tehsil Council, or the Members elected against reserved seats in the Zila Council or Tehsil Council, or being elected as Naib Zila Nazim or, as the case may be, Naib Tehsil Nazim."
Before the above provision of law, the relevant part of section 158 of Punjab Local Government Ordinance, 2001 as it existed prior to amendment, was:-- "158. Bar against dual membership.--- The holder of an elective office may contest election for any other political office: Provided that he resigns before filing his nomination papers for election to the new office."
The comparison of phraseology of section 158 of Punjab Local Government Ordinance, 2001, amended and unamended, shows that the holder of an elective office could contest election for any other political office but he had to resign "before filing of his nomination papers for election to the new office". The phrase "before filing his nomination papers", however, has been done away with by the Legislature in the amended provision. According to the provision now existing, a Nazim or Naib Nazim "may contest election for any other political office after resigning from the office of Nazim or, as the case may be, Naib Nazim". The condition of resignation before filing of nomination papers has now lost its relevance or importance. It is a significant change and omission in law, aimed at to enable him to file nominations without resignation. According to the amended provision, the resignation can be tendered at any time before "contest" of. The election. In this context, the words "contest election" have assumed somewhat importance. No precise definition of the said phrase has been brought to our notice. In order to find out the import of the phrase "contest election", some provisions of the relevant law i,e, the Representation of the People Act, 1976 will have to be kept in view. According to definition clauses mentioned in section 2 of the Representation of the People Act,1976, a "contesting candidate" means a validly nominated candidate who has not withdrawn his candidature (clause viii). A "validly nominated candidate" as per clause (xxvi) means a candidate whose nomination has been accepted. Another clause relevant in the context is clause (xxvii), which defines "withdrawal day" to mean "a day appointed under section 11 on or before which candidature may be withdrawn". It may be mentioned that Chapter IV deals with conduct of elections. Section 11 of the Representation of the People Act, 1976 which falls in the said Chapter concerns the announcement of date of elections and schedule of events. Once the said schedule is announced, the stage of filing of nomination papers begins.
Section 12 of the Representation of the People Act, 1976 deals with that stage under which the Returning Officer is charged with certain duties and then scrutiny of nomination papers takes place under section 14 of the Representation of the People Act, 1976. On conclusion of that stage i,e, acceptance/rejection of nomination papers, a list of validly nominated candidates is to be published by the Returning Officer under section 15 of the Representation of the People Act, 1976. A validly nominated candidate can avail the chance to withdraw his candidature before the withdrawal date as per section 16 of the Representation of the People Act, 1976. According to subsection (4) thereof, the Returning Officer is to prepare and, publish the list of "contesting candidates". This appears to be the stage when a real "contest" of the election inter se the validly nominated candidates is contemplated by law. In K. Kamaraja Nadar v. Kunju Thevar and others AIR 1958 SC 687, it was observed that the candidates, who survive the date of the withdrawal of the candidature, are the contesting candidates. In Har Swarup and another v. Brij Bhushan Saran and others AIR 1967 SC 836, the words "returned candidates" and "contesting candidates" were considered and it was held that "a returned candidate is one who has been elected and a contesting candidate is one who has not withdrawn his candidature under section 37". Thus, it is evident that the stage of withdrawal is of significance and importance in the context of contest of election. Therefore, the schedule of election issued by the Election Commission of Pakistan vide Notification, dated 20-11-2007 needs to be kept in view.
SR.No Events Dates 1 Dates of filing of nomination papers21-11-2007 to 26-11- with the Returning Officers by the candidates2007 2 Dates of scrutiny of nomination papers by the Returning Officers27-11-2007 to 3-12- 2007 3 Last date for filing of appeals against decisions of the Returning Officers rejecting/accepting nomination papers7-12-2007 4 Last date for deciding appeals by the Tribunals.14-12-2007 5 Last date for withdrawal of candidature15-12-2007 6 Publication of revised list of Candidates16-12-2007 7 Polling day 8-1-2008
3. The perusal of the above events as per schedule in the Notification would indicate that upto 14- 12-2007 is the stage relating to the filing of nomination papers, scrutiny by the Returning Officer, filing of appeals and decisions of the appeals by the Tribunals. That stage becomes over with the decisions of appeals by the Tribunals i,e, 14-12-2007. Then comes the last date for withdrawal of candidature which, according to the schedule, is 15-12-2007, whereafter, a final list of candidates is to be published. It appears from the events that contest of election in practical terms begins from the expiry of date of withdrawal of candidature. Before that, withdrawal is permissible to a candidate on any date. Once that date is over and final list of candidates is published, a stage of competition reaches as is spelt from the definition of "contest" given of this word in. The "concise Oxford Dictionary of current English page 282". It is, thus, evident that a Nazim or Naib Nazim may file nomination papers without resigning but will have to resign from the office of Nazim or Naib Nazim before the expiry of date of withdrawal of candidature i,e, 15-12-2007. The underlying idea appears to be that during the contest of election, the Nazim or Naib Nazim, as the case may be, may not influence the voters of the constituency in view of their position and office held by them.
Till that day he gets a chance to make a choice to continue as Nazim or Naib Nazim or to go for contest for any other political office. Thus, the fate of nomination papers filed by Nazims or Naib Nazims is determinable by keeping in view the provisions of section 158 of Punjab Local Government Ordinance, 2001, as discussed in the above context.
4. In the instant appeal (E.A. No,119-A of 2007) nomination papers filed by Rana Faisal Rauf Khan for PP-91, Gujranwala-I were accepted by the Returning Officer on 28-11-2007 and could not be objected to for the simple reason that he was Nazim of Union Council on the said date. His learned counsel has also produced before us the resignation, dated 10-12-2007 tendered by him. As per section 162 of Punjab Local Government Ordinance, 2001, the said resignation is deemed "to be accepted and effective forthwith". The Returning Officer, thus, did not commit any illegality in accepting his nomination papers. The appeal is dismissed accordingly.
E.A. No,190-A of 2007 Ch. Muhammad Rafee, Nazim, Union Council filed nomination papers for PP-125, Sialkot, which were accepted by the Returning Officer on 30-11-2007. The same have been assailed through this appeal under section 14(5) of the Representation of the People Act, 1976, primarily by invoking the provisions of section 158 of Punjab Local Government Ordinance, 2001. According to the learned counsel, the cutoff date for determination of qualification of a candidate is the last date for filing of nomination papers and since the respondent had not tendered resignation from the office of Nazim, he is not qualified to contest the election and his nomination papers have illegally been accepted.
5. The view that we have taken in E.A. No,119-A of 2007 is that there was no condition now under section 158 of Punjab Local Government Ordinance, 2001, to resign before filing of nomination papers. The Nazim or Naib Nazim could file nomination papers but will have to tender resignation before the expiry of date of withdrawal of candidature i,e, 15-12-2007. In view whereof the acceptance of nomination papers by Returning .Officer on 30-11-2007 suffers from no illegality.
The appeal is disposed of with the observation that in case the respondent does not resign from office of Nazim, Union Council by or before the last date of withdrawal of candidature, i,e, 15-12- 2007 his nomination papers will stand rejected and his name will not be included in the final list of the candidates.
E.A. No,176-A of 2007 Sabir Mahmood Ali, Nazim, Halqa No,87/51, Gujranwala had filed nomination papers for PP-93, Gujranwala-III, which have been accepted by the Returning Officer on 28-11-2007. This appeal under section 14(5) of the Representation of the People Act, 1976 has been filed qua the same primarily on the ground that since the respondent had not resigned from the office of Nazim, his nomination papers have illegally been accepted.
6. The view that we have taken in E.A. No,119-A of 2007 is that there was no condition now under section 158 of Punjab Local Government Ordinance, 2001, to resign before filing of nomination papers. The Nazim or Naib Nazim could file nomination papers but will have to tender resignation before the expiry of date of withdrawal of candidature i,e, 15-12-2007. In view whereof the acceptance of nomination papers by the Returning officer on 28-11-2007 suffers from no illegality.
The appeal is disposed of with the observation that in case the respondent does not resign from office of Nazim, Halqa by or before the last date of withdrawal of candidature, i,e, 15-12-2007 his nomination papers will stand rejected and his name will not be included in the final list of the candidates.
E.A. No,196-R of 2007 Umar Sharif Ahmad, Nazim of Union Council had filed nomination papers for PP-133, which were rejected by the Returning Officer on 1-12-2007 for the reason that he was Union Council. Nazim from which office he had not resigned. This is appeal under section 14(5) of the Representation of the People Act, 1976 qua the same.
7. None has appeared to contest this appeal. Be that as it may, for the view taken by us in E.A.
No,119-A of 2007, no valid objection could be raised to the filing of nomination papers by the appellant, who, however, could enter the contest of election only after resigning from the office of Nazim, Union Council before the last date of withdrawal of candidature i,e, 15-12-2007. His nomination papers will stand accepted with the proviso that if he does not resign from the office of Nazim, Union Council by or before 15-12-2007, his nomination papers will stand rejected and his name will not be published in the final list of candidates. The appeal is accepted in these terms and disposed of accordingly.