Nomination papers of Mst. Sumera Bano, petitioner and Yasir Ali Bajwa, (respondents No. 5 and 6 in W. P. No. 8571 of 2015) for the joint candidature of Chairman and Vice Chairman of Union Council No. 5, City, Bahawalpur were rejected by the Returning Officer/respondent No.2 vide order dated 11.10.2015 on the ground that certain parts of Declaration of Assets appended with the nomination papers for the seat of Chairman were not signed. However, appeal filed by the petitioner was accepted by the appellate authority/ respondent No. 1 vide order dated 27.10.2015 and the nomination papers were accepted. It so happened that counterpart of Mst. Sumera Bano petitioner, namely, Yasir Ali Bajwa, respondent No.15/candidate for the seat of Vice Chairman in the panel of the petitioner, submitted an application before the Returning Officer/ respondent No. 2 for withdrawal of his nomination papers on 6.11.2015 which was allowed by the Returning Officer on the same day and his nomination paper for the seat of Vice Chairman was withdrawn. On the same day the petitioner also filed an application submitting that she does not want to withdraw her nomination paper. On 7.11.2015 the petitioner filed an application before respondent No.2 for allotment of symbol which was rejected same day on the ground that her counterpart i.e. Candidate for the seat of Vice Chairman had withdrawn the nomination papers. By not accepting said order the petitioner approached Distt. Returning Officer/ respondent No.3 by way of an appeal in which said respondent vide order dated 7.11.2015 directed respondent No.2 to allot the symbol to the petitioner as per rules maintaining that nomination papers for the joint candidature of Chairman and Vice Chairman could not be withdrawn by only one member of the panel.
Resultantly, respondent No. 2 allotted symbol to the petitioner but in the list of contesting candidate he did not show name of her counterpart i.e. Candidate for the seat of Vice Chairman. Feeling dissatisfied with this act of respondent No. 2 the petitioner has filed instant petition challenging the legality of order of withdrawal of nomination paper dated 6.11.2015.
2. Malik Jaffar Mahmood (brother of the petitioner) and Syed Mazhar Abbas Bukhari, respondents No. 13 and 14, being rival candidates of the petitioner have also knocked the door of this court by way of Writ Petition No. 8571 of 2015 calling in question the above mentioned order dated 27.10.2015 whereby appeal of the petitioner was accepted by the appellate authority and the order dated 7.11.2015 passed by the Distt. Returning Officer/ respondent No. 3 whereby the Returning Officer/ respondent No. 2 was directed to allot symbol to the petitioner.
3. Since both these writ petitions are inter-connected and common questions of law and fact are involved in them, therefore, the same are being disposed of together through this single order.
4. Arguments on behalf of the parties have been heard at length and record perused with the assistance of learned counsel for the parties.
5. Moot point to be resolved by this court is as to whether single member of a panel for the joint candidature is competent to withdraw nomination papers on behalf of whole panel without obtaining consent/signatures of other members of his panel or the whole panel has to give notice for the said purpose after signing the same by each member as is the procedure for filing of nomination papers?
6. The other question is as to whether non signing of any part of the declaration of assets appended with the nomination papers is fatal leading to rejection of the nomination papers or is a defect not substantial in nature and is condonable considering the same being clerical mistake.
7. Rule 12 of the Punjab Local Governments (Conduct of Election) Rules 2013 (hereinafter to be called the Rules) deals with nomination of Election. Since these petitions relate to the joint candidature of Chairman and Vice Chairman of Union Council as such in order to avoid unnecessary details, I would like to refer the provisions of law only relating to said joint candidature.
The candidates for the seats of Chairman and Vice Chairman file their nomination papers under Rule 12(3)(i) as joint candidates. Since said provision is of much relevance as such the same is reproduced hereunder: "12. Nomination for elections.-- (3) Every nomination shall be made by separate nomination paper which shall be signed both by the proposer and seconder and shall, on solemn affirmation made and signed by the candidate or, as the case may be, the candidates for an election of:
(i) the Chairman and the Vice Chairman of a Union Council as joint candidates in Form-II(A)"
(underlining and emphasis are mine)
This Rule says that every nomination shall be made by separate nomination papers which shall be signed by both the proposer and seconder and shall, on solemn affirmation made and signed by the candidates for an election of the Chairman and the Vice Chairman of a union council as joint candidate in Form-II(A). Sub Rule (4) envisages that every nomination paper made under Sub Rule
(3) shall be accompanied by the declarations, signed by the candidates that they have consented to the nomination and they fulfill the qualification specified in section 27(1) of the Act and are not subject to any of the disqualifications specified in section 27 (2) of the Act or any other law for being elected as member.
8. Rule 16 deals with the withdrawal and retirement of candidates. Sub Rule (1) says:- "Any validly nominated candidate, or as the case may be, joint candidates may, by notice in writing signed by the candidate(s) and delivered to the Returning Officer on or before the withdrawal day, either by the candidate in person or by an agent, duly authorized in this behalf in writing by such candidate(s), withdraw his candidature, as the case may be, and such notice shall not be open to recall or cancellation." (underlining and emphasis are mine)
Since fate of these petitions hinges on interpretation of these Rules in the light of word "joint candidates/candidature" as such with the assistance of learned counsel for the parties I have microscopically examined this provision of law.
Needless to mention that basic principle of interpretation of Statute is that the same is to be read as a whole and while interpreting the same Courts are expected to keep in mind intention of legislature to promulgate said law. A careful perusal of sub Rule (1) supra would demonstrate that it simultaneously deals with two categories: One, the cases of candidate for seat meant for single person e.g. Ward, and the other with Seats of joint candidature consisting of more than one member comprising a panel e.g. Chairman and the Vice Chairman. Where this provision deals with the seat meant for single person e.g. Ward, the words, `by notice in writing signed by the candidate(s)? Are to be read as, `by notice in writing signed by the candidate? And where it deals with the case of joint candidature, one candidate/member of the panel being only spur, words "by notice in writing signed by the candidates" have to be read. This inference of mine gets support from the fact that in the later part of the provision it has again been reiterated while authorizing an agent to withdraw on their behalf that, "duly authorized in this behalf in writing by such candidate(s)". If only one member of the panel was sufficient to withdraw the nomination papers on behalf of the whole panel then such member alone could have been empowered to authorize an agent to withdraw and there was no need to repeat letter (s) with candidate by making the same to read as candidate(s). Relying on the principle that various provisions of Act have to be read together and not in isolation thereof and that even no part of a section of a statute should be read in isolation without making reference to other parts of same section, I am of the view that this provision of law has to be read in conjunction with Rule 12(3)(i) where it is made incumbent upon the candidates for the election of the Chairman and the Vice Chairman of a Union Council to file nomination papers after signing by both of them after making affirmation. Likewise sub Section (4) postulates that every nomination paper made under sub-Rule (3) shall be accompanied by the declaration signed by both the candidates that they have consented to the nomination and that they fulfill the qualifications and are not subject to any of the disqualifications enumerated in section 27(2) of the Punjab Local Government Act, 2013. If law does not allow any person to file nomination papers to contest election individually at any one seat of Chairman or the Vice Chairman because of joint candidature, it does not appear that the legislature would intend to allow any member of a panel to withdraw his nomination papers individually from any one seat of the said joint candidature. While interpreting above provision I am mindful of the principle of Interpreting the Statute which is the formal expression in writing of the Will of legislature that Interpretation of a provision of law should be harmonious. I am also aware that the Court should adopt an interpretation, which may give meanings to each word of an enactment taking into consideration the spirit of such piece of legislation. An interpretation, whereby any portion of an enactment is rendered ineffective is not to be adopted when clear meanings can be given to various provisions of an enactment in a harmonious manner. Authorizing only one member of a panel to withdraw nomination papers without consent or even signatures of other member would mean to allow even an unscrupulous person, with the connivance of the opponent, to singly file an application for the withdrawal of the nomination papers to the detriment of the other member of his panel, who does not wish to withdraw from the election. This would run counter to the concept of joint candidacy and would also amount to condemn the other person unheard which is against the fundamental principle of audi alteram partem?. Such an eventuality is ridiculous and superfluous and does not appear to be the intention of law makers. Needless to mention that an interpretation should not lead to contradictory or derisive consequences and a provision of law has to be interpreted in a manner more conducive to the interest of justice and practically possible.
9. Therefore, the notice of withdrawal ought to have been sent by both the candidates after signing and not by any one of them. It seems that the Returning Officer has not adhered to the Rule in letter and spirit and he has put the other candidate at risk of withdrawal of the nomination papers by one candidate without any notice to him. In my humble view, to cater for such a situation the legislature has inserted "joint candidates" and letter (s) with the word candidate? In case of a panel basing on the premises that all members of a panel have to swim or drown together as a result of the election.
10. So this Court is of the considered view that a single member of the panel who submitted joint nomination papers in the panel along with other members as joint candidature for Chairman and Vice Chairman cannot withdraw the nomination papers at his own without consent or signature of the other members of his panel. In the present case the respondent-Returning Officer appears to have acted in a very hasty manner inasmuch as neither he bothered to note that notice of withdrawal (application submitted by Yasir Ali Bajwa, candidate for the Seat of Vice Chairman in the panel of the petitioner) did not carry signature of other member of the panel as mandated by sub-rule (3) of Rule 16 ibid nor caused a copy of the notice to be affixed at a conspicuous place in his office. This act of respondent No.2 is, therefore, not sustainable in the eye of law.
11. So far as other question relating to Writ Petition No. 8571 of 2015 is concerned that as to whether omission of signatures of the candidate on the Declaration of Assets appended with the nomination papers is a substantial defect or this deficiency can be allowed by the Returning Officer to be cured under the powers provided in sub rule (7) of Section 14. For facility of reference said provision may also be reproduced which runs as under: "14(7). The Returning officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith, including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls."
Bare reading of this rule would reveal that the power of the Returning Officer has been controlled for not rejecting the nomination papers on any defect which is not of substantial nature and he has been empowered to allow a candidate to remove a defect of procedural nature such as an error.
In the present case the candidates signed their nomination papers. However, one of them i.e. The candidate for the seat of Chairman of the Union Council put her signatures at some places and omitted to sign the other. Such an omission was a clerical mistake which was condonable.
However, if one of the candidates had not signed the nomination papers, the position would have been different. The Appellate Authority had, therefore, rightly accepted the nomination papers of Mst. Sumera Bano?s panel.
12. Net result of above discussions and observations is that nomination papers filed by the panel of joint candidature of Chairman and Vice Chairman cannot be withdrawn by a single member of the panel and resultantly Returning Officer misconstrued the relevant law by allowing such withdrawal.
Consequently, Writ Petition No. 8771 of 2015 is allowed, the order dated 7.11.2015 allowing withdrawal of nomination papers on the application of Yasir Ali Bajwa, alone candidate for the Seat of Vice Chairman of Union Council are set aside being not sustainable in the eye of law and the respondent-Returning Officer is directed to issue revised list of contesting candidates inserting name of said Yasir Ali Bajwa as candidate for the Seat of Vice Chairman of Union Council No. 05 of Municipal Corporation, Bahawalpur.
13. Since the omission of non-signing a part of Nomination Paper was curable and such defect can be remedied under the law being clerical mistake as such the appellate authority rightly allowed the appeal filed by Mst. Sumera Bano vide order dated 27.10.2015. Writ Petition No. 8571 of 2015 is, therefore, dismissed being devoid of merits.