' ZIA-UD-DIN KHATTAK, J.---The eligibility of Hamayun Saifullah Khan, respondent No,1 herein, to contest Election for National Assembly from Constituency No,NA-27, is subject-matter of the other petition vide W.P.No,44/2008 (Noor Saleem Khan. v. Hamayun Saifullah Khan and others), also and therefore, these are disposed per this single judgment.
2. Briefly, facts of the case are that respondent No,1 was Zillah Nazim, Lakki Marwat who intended to contest Election from NA-27 which was to be held on 8-1-2008, subsequently postponed to 18-2- 2008. In this connection, he resigned from his office on 24-11-2007 by tendering resignation to the Chief Executive/Chief Minister N.-W.F.P. On 25-11-2007 through Fax as well as at his residence.
Thereafter, he filed nomination papers on 26-11-2007 which after scrutiny were accepted by the Returning Officer on 29-11-2007. After expiry of the prescribed period for filing appeals before the Election Appellate Tribunal, N.-W.F.P. And decision thereof, the Returning Officer concerned issued list of contesting candidates on 16-12-2007. The name of respondent No,1 appeared at S.No,13 of the said list as one of the eligible candidates for concerned constituency. Subsequently on 11-1-2008, Naseer Muhammad Khan petitioner herein filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan that since the resignation of respondent No,1 dated 24- 11-2007 had been accepted by the Chief Minister on 28-11-2007, the respondent No,1 was still enjoying his office of Zilla Nazim till 26-11-2007, the date of filing nomination papers and for that reasons, he was disqualified from contesting the election.
3. Mr. Naveed Maqsood Seth, Advocate learned counsel for the petitioner on the strength of authority of august Supreme Court of Pakistan reported in (PLD 2007 Supreme Court 52) contended that the acceptance of resignation tendered by respondent No,1, by competent authority was an essential requirement for its effectiveness and till such time that it was accepted, the respondent No,1 was deemed to have had continued to be Zilla Nazim. That is to say, the resignation having been accepted on 28-11-2007 i,e,, after the last date of filing the nomination papers, he was Zilla Nazim at the time of filing nomination papers and so was disqualified from contesting the election.
He submitted that since respondent No,1 had held office of profit as Zilla Nazim, he was disqualified under section 99 (I-A) (0) of the Representation of People Act, 1976.
4. Conversely, Mr. Abdul Latif Yousafzai, Advocate appearing for respondent No,1 assailed the maintainability of the writ petitions under Article 199 of the Constitution on two grounds; firstly, that the petitioners had no locus standi to file their constitutional petitions and secondly, that the subject-matter of the petitions related to an election dispute which could be, assailed by way of an Election Petition as required under Article 225 of the Constitution read with section 52 of the Representation of the People Act, 1976. He relied on the judgments of august Supreme Court of Pakistan reported in (PLD 1989 Supreme Court 396) and (PLD 2005 Supreme Court 52).
5. We have heard petitioner Naseer Muhammad Khan in person as well as learned counsel for the parties and have gone through the available record.
6. The first point which requires determination is whether tender of a resignation by a Zilla Nazim would require acceptance of the competent authority for its effectiveness or otherwise. The subject of resignation of Zila Nazim is dealt with independently under section 21 of the Local Government Ordinance, 2001 according to which the Zilla Nazim may resign from the office by tendering resignation in writing to the Chief Executive/Chief Minister of the Provinces. This tendering of the resignation is not qualified by some other conditions for its acceptance.
' It was observed that the act of relinquishment of office or its acceptance or otherwise is dependent on the nature of the office/post held by an incumbent. The act of relinquishment may take different forms or assume a unilateral or bilateral character depending upon the nature of the office and the conditions governing it. In case, the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated or conveyed to the competent authority. In such case, the competent authority is not required to take any further action and the relinquishment is effected from the date of such communication.
Conversely, if the act of relinquishment is of bilateral character, the communication of the intention to relinquish, by itself would not be sufficient to result in relinquishment of the office and some further action is required to be taken on the communication of intention to relinquish e.g. Acceptance of the said request to relinquish the office and in such a case the relinquishment would not become effective or operative till such action is taken.
7. The holder of office of Zilla Nazim under the Local Government Ordinance, 2001 would relinquish his office merely by tendering his resignation under section 21 of the Local Government Ordinance, 2001 and acceptance of the resignation is not a sine qua non for it. Admittedly, the respondent No,1 had tendered resignation on 24-11-2007 which was accepted by the competent authority, as such, his seat had become vacant with effect from the said date as was notified by the Election Commission of Pakistan under section 164 of the Local Government Ordinance, 2001 vide Notification No,F-5(7)/2006-Elec.(H) dated 7-12-2007.
8. As regards the contention of respondent No,1 that the issue in these petitions pertained to an election dispute and this Court has no jurisdiction to entertain the same for it would be decided only by way of an election petition under section 52 of the Representation of the People Act, 1976 in view of the provisions of Article 225 of the Constitution, the matter was initially examined by the august Supreme Court of Pakistan in the case of "Election Commission of Pakistan v. Javed Hashmi and others" (PLD 1989 Supreme Court 396) and subsequently in a case of "Ayatullah Dr. Imran Liaqat Hussain v. Election of Pakistan, Islamabad and another" (PLD 2005 Supreme Court 52), it was held that the dispute relating to pre-election qualifications or disqualifications of members could only be determined in accordance with the Election Law in force and the High Court in its jurisdiction under Article 199 of the Constitution was not competent to determine such disputes. It hardly needs any emphasis that "all steps in conduct of election could be challenged only by way of election petition by a rival candidate. As filing of nomination forms is a step in the conduct of election and could only be assailed through an election petition, a statutory remedy is provided under the law with mandate under Article 225 of the Constitution".
9. In the light of the above, we are of the view that respondent No,1 after tendering resignation from the office of Zilla Nazim on 24-11-2007 was not hit by any clause of disqualification. The nomination papers filed by him had already been scrutinized and accepted which remained unquestioned either before a Returning Officer or before the Election Appellate Tribunal. The said acceptance has also been culminated in the issuance of final list of candidates showing their respective election symbols.
10. We, however, observe that our findings shall not prejudice any proceedings to be taken by either of the parties before the Election Authorities at post election stage.
11. Resultantly, we find no merit in these writ petitions which have been dismissed accordingly vide our short order dated 14-2-2008. The above are the reasons therefor.