'SYED SHABBAR RAZA RIZVI, J.---I propose to decide Writ Petition No,390/2006 and Writ Petition No,17594 of 2005 together by this single order as legal propositions and facts are same in both these petitions. The grievance is against the same person who is arrayed respondent No,2 and respondent No,3 in both petitions.
2. The petitioner was elected as Nazim of Union Council No, 47, Midh Ranjha, Tehsil Kot Momin, District Sargodha. By virtue of his office, the petitioner was a voter in the Electoral College for the election of Naib Nazim of District Sargodha. Election of Naib Nazim was held on 28-12-2005.
Respondent No,2 contested the said election and was elected.
3. According to the learned counsel for the petitioner, to qualify for election of the post of Naib Nazim District Council, the first requirement was to be a member of the Zila Council, therefore, the respondent No,2 was elected as a member Zila Council against a seat reserved for worker/peasant. The respondent No,2 posed himself as a worker. Respondent No,2 submitted a, declaration showing owner of land which valued Rs,200,000 giving income to him of Rs,10,000 per year. He also declared his Account No, C-1/778/c showing that the said account had Rs,30,000 into his credit. Respondent No,2 also submitted another declaration showing that he was as worker in the National Sugar Mills. A certificate issued by the management shows that he was employed in the administration of the Sugar Mills. The above papers were submitted along with the nomination papers of respondent No,2.
4. The learned counsel referred to Annex-E. According to Annex-E, respondent No,2 was shown owner of 33 Kanals and 557/1/2 Kanals of agricultural land. Annex-E/1 showed that respondent No,2 was owner of 104 Kanals and Annex-E/2 reflected that respondent No,2 was owner of 105 Kanals of land. The above record showed that some land was under his self-cultivation and some in his ownership only.
5. The learned counsel submitted that an objection was raised on his status as a worker at the time of nomination papers by one Muhammad Ali who was a voter of the constituency. However, the objection was dismissed. The appeal was also filed which was subsequently withdrawn by said Muhammad Ali, hence the appeal was dismissed.
6. On the basis of above contentions, the learned counsel submitted that respondent No,2 was disqualified to be elected as a member and subsequently Naib Nazim Zila Council, District Sargodha. The learned counsel submitted that he has attached Annex P1 with replication copy of appeal filed before Tehsildar Kot Momin for partition of family property which showed that respondent No,2 was owner of agricultural land. The learned counsel submitted that he submitted replication to the rejoinder submitted on behalf of respondent No,2 wherein it is shown that respondent No, 2 had obtained loan on agricultural Pass-Book No, 268676 to buy a tractor. Other loan was obtained by him from the Cooperative Bank, Kot Momin, for agricultural purpose showing himself owner of agricultural land. He also obtained loan from Agricultural Development Bank, Kot Momin District Sargodha, on 15-7-2005 of Rs .700,000 to purchase pesticides fertilizes and seeds.
The learned counsel referred to section 2(xli) which reads as under:-- "Worker means a person directly engaged in work or is dependent on personal labour persistent labour and includes a worker as defined in Industrial Relations Ordinance, 2002 (XCI of 2002)"
' Worker is defined in section 2(xxx) of Industrial Relations Ordinance, 2002 as under:-- " 'Worker and workman' means any and all persons not falling within the definition of employer who is employed in an establishment for industry for remuneration of reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity . "
' The learned counsel submitted that certificate which was attached with the nomination papers and submitted before the learned Additional Sessions Judge Returning Officer, Zila Council election, clearly exhibited that he was working on the administrative side in National Sugar "This is to certify that Mr. Sultan Ali son of Manazar Ali resident of Dhingranwali Tehsil Kot Momin/ District Sargodha is serving in this Organization in administrative department. He is found to be hardworking, energetic and quite capable in his job."
' The learned counsel submitted that above facts and documents demonstrated that respondent No, 2 was not qualified in terms of the Punjab Local Government Ordinance, 2002.. The learned counsel further submitted that petitioner being voter of the Constituency was competent to agitate the present writ petition in nature of co-warranto mentioned under Article 199 of the Constitution of Pakistan. He referred to PLD 1966 Kar 1, PLD 1969 SC 223, PLD (sic) Lahore 544, PLD 1962 Lahore 2630, 1981 SCMR 74, 2006 YLR 643 and 2006 CLC 104, PLD 1965 Dacca 330 and PLD 1970 SC 98:
7. The main points of the learned counsel for the petitioner can be summarized as under:-- 'That the respondent No,2 posed and participated in the election as a worker; he submitted an incorrect declaration of assets; he wrongly attempted to introduce himself as an employee/worker in the National Sugar Mills; according to Annex-E, El and E2, the respondent is owner of 814 Kanals of agricultural land; the objection to his disqualification was raised at the time of filing nomination papers which was dismissed; since the respondent No,2 was disqualified to be elected against the seat of worker as member of the Zila Council, he was also disqualified from the very outset to be elected as Naib Zila Nazim. 'According to the learned counsel for the petitioner, Annex-P1 shows that respondent No,1 is owner of Agricultural land and he had obtained loan on agricultural Pass Book No, 268676 to buy a tractor. Similarly, he had also obtained loan from Cooperative Bank, Kot Momin for agricultural purposes being landowner to purchase pesticides, fertilizers and seeds.
8. In reply to the above assertions, the learned counsel for respondent No,2 has taken preliminary objection that since the Election Tribunal had been notified, the writ petition was not competent; the points/questions raised in this writ petition require recording of evidence. Thus, constitutional jurisdiction could not be invoked. The objections Nos.3 and 4 are similar like objections Nos.l and 2.
According to the learned counsel for the respondent No,2, facts mentioned in the writ petition were incorrect and petitioner approached the Court with unclean hands; the status of respondent No,2 as a worker was certified by the DDO (R), Kot Momin and Annex-R1, dated 12-9-2005 signed by Halqa Patwari confirmed that respondent No,2 had no land in village Dhingranwali and Halqa Buccha Kalan. On merits, the learned counsel agreed that respondent No,2 contested the election reserved for the worker; declaration of assets were correctly made by respondent No,2; the job of respondent No,2 fulfilled the criteria of qualification of a worker; the objection on his qualification/worker was correctly decided by the learned Returning Officer at the time of presenting nomination papers and that respondent No,2 was rightly and legally elected. The petitioner had no locus standi, to file the instant writ petition. The learned counsel for respondent No,2 denied that respondent No,2 owned 102 acres or 814 Kanals of land. The learned counsel further asserted that since respondent No,2 had already been declared returned candidate, thus, instant writ petition became infructuous.
9. I have heard arguments of the learned counsel and also perused the documents alluded to by them. The question of maintainability similar like raised in this writ petition has already been decided by this Court in another case, Muhammad Maqsood Sabir Ansari v. DRO, etc., Petition No, 16703/05, wherein it was held:-- "Under Article 199 (1)(b)(ii) of the Constitution, this Court is competent to require a person within its territorial jurisdiction, holding or purporting to hold a public office, to show under what authority of law he claims to hold that office. According to a decision of this Court, a writ of quo warranto can be issued even against an elected person, in this regard a reference may be made to Akhtar Rehman v. Muhammad Latif Tahir, PLD 1981 Lahore 48. In another case, this Court observed that the writ of quo warranto owed to be encouraged to keep a check on those persons who occupy public offices without require qualifications.
(Muhammad Shafiq Raja v. Government of the Punjab, 1991 CLC 617).
10. According to the assertions of the learned counsel for the petitioner, respondent No,2 was suffering from the disqualification when he filed his nomination papers from being elected and still suffering from the same disqualification as his status has not changed, therefore, his initial election as member of Zila Council against a seat reserved for category of worker and later on Naib Zila Nazim is still questionable. A Against this background, in my view provisions of Article 199. (1)(b)(ii) of the Constitution require this Court to satisfy itself whether respondent No,2 is qualified to hold the public office subject-matter of this writ petition. In this regard, a reference may be made to Sardar Asif Ahmad Ali v. Muhammad Khan Junejo, PLD 1986 Lah. 310). In another case, the Honourable Supreme Court, of Pakistan surveyed the case law in context of power of High Court to issue a writ in nature of quo warranto, which I would like to reproduce as under:- "In such-like cases where a writ in the nature of quo warranto is instituted, the duty of the petitioner is to lay information before the Court that such and such officer has no legal authority to retain such office. For a petitioner who acts, in fact, as an informer is not required to establish his locus standi to invoke the jurisdiction of the Court. In this behalf reference may be made to Masood ul Hassan and another, PLD 1963 SC 203. In this report, it has been held that writ of quo warranto in its nature is an information laying against person who claimed or usurped an office, franchise or liberty and was intended to enquire by what authority he supported his claim in order that right to office may be determined. It was further held that it is not necessary for the issuance of writ that the office should be one created by the state of character or by statute and that the duty should be of a public nature. Similarly, in the case of M.U.A. Khan v. Rana Muhammad Sultan Ali and another PLD 1974 SC 228, this Court held that writ of quo warranto could be moved by "any person who even may not be an aggrieved party but is holding a public office created by character or statute by the State." Yet in another case reported from the jurisdiction of High Court of Azad Jammu and Kashmir i.e, Ali Hussain Bukhari and 39 others v. Azad jammu and Kashmir Government through Chief Secretary and 2 others (1992 PLC CS 289), it was observed that any person can move the High Court to challenge the unauthorized occupation of a public office on any such application Court is not only to see that the incumbent is holding the office under the order of a competent authority but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office, the Court has also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provisions of appointment. (2000 SCMR 1720, Captain (R) Nasim Hijazi v. Province of Punjab and others."
11. The allegation against respondent No,2 is that he declared and presented himself as a worker in violation of constitutional provisions and the Punjab Local Government Ordinance, 2001 and hence succeeded unauthorizedly to occupy a B public office for which he was never qualified.
12. Resultantly, the preliminary objection raised by the learned counsel for the respondent No,2 on point of maintainability; on ground of establishment/working of an Election Tribunal, C present occupation of office by respondent No,2, and other subsequent developments, is rejected. The preliminary objection that present writ petition will require appreciation or deeper appreciation of evidence is also not allowed as this Court will only consider the documents attached with the writ petition and written statement etc, by the parties along with reading of the relevant provisions of the Constitution and the law. Other preliminary objections are not relevant to the facts and circumstances of the instant writ petition, therefore, the are also rejected.
13. According to section 2(xli) of the Punjab Local Government Ordinance, 2001, 'worker' means a person directly engaged in work or is depend on personal labour for subsistence living and includes a worker as defined in Industrial Relations Ordinance, 2002 (XCI of 2002). According to the learned counsel for the petitioner, respondent No,2 is owner of around 102 acres of agricultural land and is an D employee on the administration side of National Sugar Industries Ltd. Similarly, according to the learned counsel, a person is a peasant under section 2 (xxvi) of the Ordinance who is land farm worker and during the period of five years, preceding year in which, the election is held has been the owner of not more than five acres of land and depends on it for the subsistent living. In view of the above definition of peasant and worker, according to the learned counsel for the petitioner, the respondent No,2 is neither peasant nor worker. Thus, the Returning Officer has D accepted the nomination papers clearly in violation of the Constitution and the law and thus deprived genuine class of peasants/workers.
14. Nomination papers attached with the writ petition as Annex-A clearly show that respondent No,2 was nominated on the seat of peasant/worker. Annex-B attached to the writ petition indicates declaration of assets that respondent No,2 owned agricultural property (details not given), worth Rs,200,000 through inheritance, giving him income of Rs,10,000 only, per year. The declaration/Annex-B also indicates Bank A/c No, 01177810 of Prime Bank having Rs, 30,000 only in account of the respondent No,2. Annex-D is certificate issued by Station Manager, National Sugar Industries Limited, dated 30-9-2005 which reads that respondent No,2 was working in the said organization in administration department. The said certificate has not E been denied by the learned counsel for the respondent No,2. Annex-E, El and E2 indicate agricultural land of respondent No,2 in different villages. At this stage, I would like to refer to some annexures of the petitioner in replication of the written statement of respondent No,
2. In para 6, the certificate issued by DDO (Revenue) that respondent No,2 was not owner in village Buccha Kalan and Dhingranwali were challenged as false. It was also alleged that the said certificate was issued under the influence of father of respondent No,2 who was Revenue Minister, Punjab at that time. The contention of the learned counsel for the petitioner has been supported by P1 to P3. The above documents show list of loans taken by respondent No,2 against his agricultural land, from Bank of Punjab, Bhalwal District Sargodha, Punjab Provincial Cooperative Bank, Kot Momin, District Sargodha and Agricultural Development Bank, Kot Momin. Detail for the above loans is given as under:-- Bank. Sargodha
(a) Agricultural Pass Book No, 268676, Tehsil Register No, 3068, Unit 2355
(b) Khewat No,8, Khatooni Nos. 28 to 80, share 3050/9645, land measuring 153 Kanals.
(c) Khewet No,9 Khatooni Nos.81 to 87, share 54/141, land measuring 27 Kanals.
(d) Khewat No,13, Khatooni Nos.106 to 111, share 509-3/7 Qitaat 57, land measuring 78 Kanals.
'Total area 258 Kanals, loan availed Rs, 8,31,760 'The Punjab Provincial Bank, Kot Momin, Sargodha
(a) Agricultural Pass Book No,868333, 100 Kanals, valuing Rs, 3 million.
(b) Under No,1263/012, dated 7-9-in favour of land sc No,93
(c) Khewat No, 5 Khatooni Nos.327 to 366, total area Khewat 1619-1/4, share 400/6477, mutation dated 9-9-2000 Tractor obtained against loan valuing Rs, 500,000 'Kot Momin 'Case Loan No,101986, Agriculture Pass Book No, 847717, dated 15-7-2005 loan sanctioned Rs,4,11,866 Pesticides, fertilizer, E seed obtained against loan.
'The application filed before Tehsildar Kot Momin for division of agriculture land of a joint khata in the title P1, respondent No,2 is shown as petitioner No,1.
15. In the written statement, the learned counsel for respondent No,2 relied upon a certificate as R1, "To whom it May Concern." It reads as under:-- "It is certified that Mr. Sultan Ali Ranjha son of Mian Manazar Ali Ranjha Resident of Haveli Mian Sher Ali Dakhi Mauza Dhingranwali is neither the owner F nor cultivates any piece of land in the village of Buccha Kalan and Dhingranwali."
'R2 is signed by Muhammad Hayat Patwari and Khalid Iqbal Patwari of village Dhingranwali and Halqa Buccha Kalan. According to R2, respondent No,2 is not owner of agricultural land in the above said two villages. Both documents are on simple white papers.
16. In the presence of above mentioned documents, enumerated in the proceedings paras, I do not attach much importance to R1 and R2, which were issued by two revenue officers at time respondent No,2's father was a sitting Revenue Minister. For the same reasons, authenticity of these two documents i.e, R1 and R2 was categorically challenged by the learned counsel for the petitioner. On the other hand, all the documents which have been relied upon by the petitioner have not been challenged by the learned counsel for the respondent in term. Of their authenticity.
The learned counsel for the respondent No,2 has also referred to certificate issued by National Sugar Mill to contend that it showed respondent No,2 as a worker. As discussed above, this certificate does not show respondent No,2 as a worker instead it reads as under:-- "This is to certify that Mr. Sultan Ali son of Manazar Ali, resident of Dhingranwali, Tehsil Kot Momin, District Sargodha is serving in the organization in administration department."
' Thus, this certificate supports contentions of the learned counsel for the petitioner instead of the learned counsel for the respondent No,2.
17. Too long list of case law referred to by the learned counsel for respondent No,2 has been examined by me, but it is respectfully stated that these judgments are not applicable to the facts and circumstances of the instant writ petitions.
18. In view of the above discussion, reasons and grounds, these writ petitions are allowed and a writ is issued in nature of quo warranto. Resultantly, it is declared that respondent No,2 was disqualified to contest election against a seat reserved for workers. His election is declared unlawful and of no legal effect. Respondent No, 2's election to seat of Naib Zila Nazim, District Council, Sargodha is also set aside. For the above reasons, the concerned authorities shall take appropriate and required measures in pursuance of this order.