' Gul MUHAMMAD KHAN, J.-The appellant challenges the order dated 7th May, 1980, passed in Writ Petition No, 169/80, through this appeal.
2. Briefly, the facts leading to this appeal are that the appellant who was a depot-holds, tendered his resignation which was accepted by the District Food Controller, Gujranwala on 28th October, 1979. Earlier, on 25th September, 1979, he had contested the election of a Member from Ward No, 4, Municipal Committee, Kamoke, and succeeded. A redpoll was held on 14th October, 1979, and the appellant again succeeded. The result of the election was notified on 22nd November, 1979.
3. Respondent No, 3, who is a voter in the said Municipal Committee filed a Constitution Petition No, 169/80, praying that the action of respondent No. 1 in accepting the nomination papers of the appellant be set aside, his election as a Member, as well as Chairman, be declared to be without lawful authority and he be restrained from acting as such.
4. The case was considered by a learned Single Judge of this Court who on finding that the appellant was disqualified under section 21(f) of the Punjab Local Government Ordinance, 1979, read with Article 10(2)(b)(8) of the President's (Post-Proclamation) Order (5 of 1977), held that the appellant is disqualified to be a Member of the Municipal Committee.
5. It is contended by the learned counsel that as the appellant had resigned as a depot-holder and the same was accepted on 28th October, 1979, there was no disqualification left and the impugned order is not wand. It is to be noted that the election was held on 25th September, 1979. Its repolling took place on 14th October, 1979. According to Annexure 'A' an election petition filed by Haft Abdul Shakoor, the defeated candidate, is also awaiting decision before the Election Tribunal.
' Respondent No, 3, who is a voter, could not file an election petition and, therefore, he is entitled to file this petition under Article 199(1)(b)(ii) of the Constitution. The scope of the constitutional jurisdiction is limited to the extent that the respondent is ordered to show the warrant or authority under which he was holding a particular public office. The learned Single Judge has relied on Sardar Muhammad Jaffar Khan Leghari v. Election Commission (1) to hold that being a depot- holder, the appellant was disqualified to be nominated or elected a member. The Supreme Court upheld that view in Umar Draz Cheema v. Nazar Muhammad. There can thus be no dispute about the finding as such. What is to be considered is whether the constitutional jurisdiction should have been exercised when the appellant had already resigned?
7. The learned counsel for the appellant has relied on a judgment of the Supreme Court in Alimuddin v. Muhammad Riaz C. P. S. L. A. No, 361 of 1980. The High Court in that case had refused to dismember a person against whom an election petition was also pending. The Supreme Court also refused to grant special leave to appeal as it did not like interfering with the discretion exercised by the High Court (see Writ Petition No, 1326/&). It is argued that as the case in hand was founded on precisely similar facts there should have been no interference in it either for the sake of consistency particularly when the previous action had been approved by the Supreme Court as the intra Court Appellate Bench (I.-C. A. No, 56 of 1980). It may further be noted that the relief in such cases is in the discretion of the Court and cannot be asked for as a matter of course as held in the case of Azizur Rehman Chaudhry (3).
8. The appellant was undoubtedly not qualified to contest the election on the relevant day as a depot-holder for the established position of law that far. This disqualification was, however, temporary as it would vanish after the appellant resigned on 28th October, 1979. The learned counsel sought support from a judgment of the same Court where a writ petition of a voter was rejected for the reason that the respondent-member had resigned on 17th February, 1980, before the filing of the writ petition on 13th March, 1980 (See Writ Petition 2936/80).
9. It would appear from the above that there is an evident inconsistency. However, the later view is supported by the Supreme Court judgment in the case of Dr. Kamal Hussain (4). The facts of that case were that the election to the Bar Council was held on 30th November, 1966 while the disqualification was removed on 31st December, 1966. The Bar Council was to be constituted after that date. The Supreme Court. Therefore, held it not be a fit case where the High Court should have interfered. Consequently, the discretion exercised by the High Court was interfered with and its order issuing a writ of quo warranto set aside.
10. It is proved on record that an election petition was pending decision at the time when the writ petition was filed. Strictly speaking that is no bar to a petition seeking interference in the nature of quo warranto as held in Farzand Ali v. Province of West Pakistan (5). It is also correct as held in C. P.
S. L. A. No, 361 of 1980, referred to above that the Supreme Court generally will not interfere with the discretion properly exercised by the High Court. The, learned Single Judge was, however, bound to follow his own view particularly when it had been upheld in lntra-Court Appeal as well as by the Supreme Court. Further, the discretion exercised otherwise was interfered with in the case of Dr. Kamal Hussain.
11. Again, it is to be noted that consistency in decisions of a Court {{FOOT NOTE}}
(1) PLD 1978 Lab. 76 (2) 1980 SCMR 156
(3) PLD 1965 SC 236 (4) PLD 1969 SC 42
(5) P L.11 1970 SC 98 {{FOOT NOTE}} ' is very necessary for maintaining the confidence of the people and for permitting them to order their affairs accordingly. Consequently in view of the two judgments of the Supreme Court as well as the Division Bench, we think that the learned Single Judge has not exercised his discretion properly.
' For the reasons given above, this appeal is allowed and the writ petition is dismissed. Respondent No, 3 shall pay the costs.