SYED SHABBAR. RAZA RIZVI, J, ELECTION TRIBUNAL.--- We decide the following eight election appeals together by this judgment as similar facts and same legal propositions require adjudication: =--
(1) Election Appeal No,22-R of 2007 (2) Election Appeal No,23-R of 2007 (3) Election Appeal No,24-R of 2007 (4) Election Appeal No,37-A of 2007 (5) Election Appeal No,38-A of 2007 (6) Election Appeal No,77-R of 2007 (7) Election Appeal No,134-R of 2007 (8) Election Appeal No,74-R of 2007.
2. The main points require decision in these election appeals are whether bar or disqualification contained in section 158 of the Punjab Local Government Ordinance, 2001, is applicable to candidates contesting for Senate, National Assembly or Membership of Provincial Assembly? If bar is attracted, whether resignation is imperative before filing nomination papers or after, or during the process of scrutiny of the nomination papers and before the publication of validity nominated candidates.
3. The general elections, scheduled on 8-1-2008 are being held under the Conduct of General Elections Order, 2002 (hereinafter to be called as Order (7 of 2002). The said order was also protected under Article 270-AA of the Constitution. Under section 3 of the Order 7 of 2002, the provisions of this Order shall have effect notwithstanding anything contained in the Constitution or in any other law for the time being in force relating to forthcoming elections, to the Senate, National Assembly and the Provincial Assemblies. According to section 8-D(2)(q) of the Order, 2002, "A person shall be disqualified from being elected or chosen as, and from being a member of Majlis- e-Shoora (Parliament) or a Provincial Assembly, if he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being enforced".
4. Section 158 of the Punjab Local Government Ordinance, 2001 is a law which is enforced and reads as under:- "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."
5. Expression "any law" used in section 8-D(2)(n) includes section 158 of the Punjab Local Government Ordinance, 2001 [hereinafter called Ordinance of 2001]. Section 158 contains expression "any other political office" also includes office of membership of Senate, National Assembly and a Provincial Assembly. Thus, in our opinion, collective reading of the above mentioned provisions of the Representation or the People Act, 1976, and Conduct of General Elections Order, 2002, require a Union Nazim or Naib Union Nazim to contest election after resigning from the office of Nazim or, as the case may be, Naib Nazim if he wishes so. During the arguments, it has been contended by the learned counsel for the appellant in Election Appeal No,134-R of 2007, that bar in section 158 is not applicable to the candidates of National Assembly and Provincial Assembly. It applies to elections held under the Punjab Local Government Ordinance, 2001, only.
Disqualifications, those mentioned in section 99 of the Act, 1976 are attracted to the present cases, according to the said learned counsel.
6. We considered the above contention but find it inconsistent with the language and spirit of subsection (1) of section 158. For example, this subsection reads that a Nazim or Naib Nazim may contest election for any other political office after resigning from the office of Nazim/Naib Nazim. If for the arguments sake, in the present appeals we treat Nazims of Union Councils as Nazims of District Council, can we expect them to contest for any other political office under the Punjab Local Government Ordinance, 2001? All other political offices under the Ordinance are subordinate offices to the office of District Nazim i,e, Tehsil Nazim, Naib Tehsil Nazim, Union Nazim and Naib Union Nazim. A District Nazim, if wants to contest election for any other political office, it can only be a higher political office than office of District Nazim and that could only be an office of Member of Senate, National Assembly or a Provincial Assembly outside the ambit of the Ordinance, 2001.
Likewise, if we examine subsection (2) of section 158, we come to know that a Union Nazim or Naib Union Nazim is not stopped becoming member of the Zila Council or Tehsil Council. Under section 37, all Union Nazims in the District or by virtue of their office are Members of a Zila Council and same is the position under section 65: all Naib Nazims of all Union Council in the Tehsil or Town are members of Tehsil/Town Councils by virtue of their offices. They can also be elected as Naib Zila Nazim or as the case may be Naib Tehsil Nazim. Under section 158, Union Nazim and Naib Nazim are allowed to be elected to the office of Naib Zila Nazim or as the case may be, Naib Tehsil Nazim without resigning from their posts. The first proviso allows a member of Zila Council, Tehsil Council, Town Council or Union Council that they may contest election for "any other political office" without resigning from the membership of such council. This exception is given to the members of the above mentioned councils who are directly elected members of Zila Council, Tehsil, Union Council, etc. As office of membership is not as responsible and important as of Nazim/Naib Nazim of the above councils, therefore, members are exempted from the bar contained in section 158.
7. Thus, in view of the above discussed reasons, we hold that a sitting Nazim or Naib Nazim of a Union Council may contest election for the office of a membership of Senate, National Assembly or a Provincial Assembly after resigning from the office of Nazim Union Council or as the case may be Naib Union Nazim.
8. However, the second question is, what is the stage and time when a Union Nazim and Naib Union Nazim, as the case may be, tender his resignation. According to the existing section 158 of the Ordinance, 2001, the Nazim/Naib Nazim may "contest election after resigning" from the office. The expression that he may "file nomination papers after resigning" from the office, is not used in existing section 158. In our opinion, to appreciate the above difference, we need to examine different stages of election process. These stages are similar under -the Punjab Local Government Ordinance, 2001 and under the Representation of the People Act, 1976, therefore, for the purpose of brevity we only refer to provisions of the Representation of the People Act, 1976. According to section 2-iv (Definitions), a candidate means a person proposed as a candidate for or seeking election as a member. Under this section, candidate means a person proposed as a candidate.
Under section 2(viii) "contesting candidate" means a "validly nominated candidate" who has not withdrawn his candidature. According to this subsection a person is a contesting candidate if he has been validly nominated in the list of valid candidates and he has also not withdrawn from the contest/election. Under section 2(xxvi) validly nominated candidate means a candidate whose nomination papers have been accepted. Under section 12, a qualified person may be proposed and seconded by any elector of a constituency. Under section 14, process and requirements of scrutiny is provided of a candidate before the Returning Officer as well as the Tribunal. Under section 15, the Returning Officer is required to prepare and publish in the prescribed manner a list of validly nominated candidates. After stage of scrutiny, word candidate is not used anymore it is prefixed with "validly nominated". Under section 16 expression contesting candidate is used instead of a candidate or validly nominated candidate. Under section 16, if a validly nominated candidate does not withdraw his candidature, he becomes a contesting candidate, in other words, a qualified person to contest the election under the law. Again under section 17, a contesting candidate is given opportunity that he may retire from the contest. The above survey of different provisions of the Representation of People Act, 1976 shows that a stage to contest arrives as contemplated under sections 14 and 16. That is why, section 158 envisages, that a Nazim or a Naib Nazim may contest election for any other political office after resigning from the office of Nazim/Naib Nazim.
The reason to use the expression 'may contest election' is that merely filing a nomination paper is not sufficient to be qualified to contest election. A person who files his nomination papers may be declared disqualified during the process of scrutiny. Under the law, a person is considered or treated as a contesting candidate once he is declared qualified/ fit to contest. The Legislature deliberately opted to amend section 158 of the Ordinance, 2001, in 2002 and 2005. In the original text, the holder of an elective office could contest election for any other political office provided he "resigns before filing his nomination papers". The amendment has been made deliberately and this change also supports our findings.
9. In view of the above discussion, we hold that it is not necessary that a Union Nazim or Naib Union Nazim must resign before filing his nomination papers to become qualified to contest any election under the Conduct of General Elections Order, 2002 (Chief Executive Order 7 of 2002) or under the Representation of the People Act, 1976. Thus we hold that a Nazim or Naib Nazim may resign from office of Nazim/Naib Nazim to contest election for any other political office after filing nomination papers but before a list of validly nominated candidates is published.
10. In Election Appeal No,22-R of 2007, titled Rana Salman Mehmood Khan v. Returning Officer, etc., the nomination papers of the appellant for PP-296, Sadiqabad were rejected on the objection of respondent No,2, on the ground that the appellant had not shown his intention to resign from the office of Union Nazim, hence his nomination papers were rejected. Therefore, if the appellant resigns and submits the same before the learned Returning Officer, his nomination papers shall be accepted and his name shall be included in the revised list of validly nominated candidates, as required under section 15 of the Representation of the People Act, 1976. Thus, E.A.No,22-R of 2007 is allowed in the above terms. In Election Appeal No,23-R of 2007, titled Muhammad Arshad Khan Laghari v. Returning Officer etc. The nomination papers of the appellant for PP-297, Rahim Yar Khan were rejected on the ground that he had not resigned from the office of Nazim Union Council before filing the nomination papers. Therefore, if the appellant resigns and submits the same before the learned Returning Officer, his nomination papers shall be accepted and his name shall be included in the revised list of validly nominated candidates, as required under section 15 of the Representation of the People Act, 1976. Thus, E.A.No,23-R of 2007 is allowed in the above terms. In Election Appeal No,24-R of 2007, titled Muhammad Arshad Khan Leghari v. Returning Officer and others, the nomination papers of the appellant for N.A-197, Sadiqabad were rejected on the ground that he had not resigned from the office of the Union Nazim before filing his nomination papers. The appeal is allowed provided the appellant submit his resignation from the office of Nazim Union Council and submit the same before the learned Returning Officer. If the same is done, the learned Returning Officer shall revise the list of validly nominated candidates and include the name of the appellant therein.
11. In Election Appeal No,37-A of 2007 titled Abdur Rauf v. Muhammad Riaz and others the nomination papers of respondent No,1 for PP-290, Rahim Yar Khan were accepted despite objection raised by the appellant. According to the appellant the respondent was a Naib Nazim of a Union Council, thus, was disqualified as he had not resigned before submission of his nomination papers, as a candidate for PP-290, Rahim Yar Khan. No one appeared on behalf of respondent No,1 despite notice, dated 6-12-2007, which has been served upon him as required under the law. However, in view of our findings above, if the respondent No,1 resigns from the office of Naib Nazim, the order of the learned Returning Officer shall hold the field. This appeal is dismissed in the above terms. A copy of this order shall be sent to respondent No,1 as well as Returning Officer. In Election Appeal No,38-A of 2007, Abdur Rauf v. Sabir Ali, etc., the appellant's objection against respondent No,1 from PP-290, Rahim Yar Khan was not allowed and nomination papers of respondent No,1 were accepted by the learned Returning Officer. The objection of the appellant was that being sitting Nazim of Union Council No,73, Khanpur, District Rahim Yar Khan, respondent No,1 was not qualified to contest upcoming general elections as he had not resigned from the office of Nazim Union Council before filing his nomination papers. We have been informed that respondent No,1 has already resigned from the office of Nazim Union Council on 24-11-2007. In this regard, a copy of resignation has already been provided to the learned Returning Officer. Thus, in light of our above findings, this appeal is dismissed.
12. In Election Appeal No,134-R/2007, titled Ch. Manzoor Ahmad Warraich v. Returning Officer, the nomination papers of the appellant for PP-293 and PP-294, Rahim Yar Khan were rejected on the ground that he had not resigned from the office of Nazim Union Council No,33-D, District Rahim Yar Khan before filing his nomination papers. The learned counsel for the appellant after arguing his case at some length submitted that appellant wants to resign from office of Nazim Union Council to become qualified to contest general elections, therefore, if the appellant resigns from his office of Nazim Union Council and submit a copy of resignation to the learned Returning Officer, the learned Returning Officer is directed to include his name in the revised list of validly nominated candidates. This appeal is allowed in the above terms.
13. In Election Appeal No,74-R of 2007, Iftikhar Rasool Khan v. Returning Officer, etc, the appellant submitted his nomination papers to contest election of Provincial Assembly from PP-293, Rahim Yar Khan. His nomination papers were rejected on the objection of respondent No,2 on the ground that being Naib Union Nazim and not resigning from U.0 No,32-C, Rahim Yar Khan, he was ineligible o contest general elections. After arguments, the appellant has informed this Tribunal that he has already resigned from the office of Naib Union Nazim, on 3-12-2007 and in this regard he has placed a copy of resignation on the file. In view of our above decision and findings, this appeal is allowed and the learned Returning Officer is directed to include the name of the appellant in the revised list of validly nominated candidates under section 15 of the Representation of the People Act, 1976. In Election Appeal No,77-R of 2007, Rana Tariq Mehmood Khan v. Returning Officer etc, the nomination papers of the appellant for PP-296, Rahim Yar Khan were rejected on the ground that he had not resigned from the office of Union Nazim, UC No,13, District Rahim Yar Khan before filing his nomination papers. The appellant has shown his willingness to resign immediately from the post of Nazim Union Council. In the light of our findings above, if the appellant resigned, his name would be included by the Returning Officer in the revised list of validly nominated candidates.