' SHAHID KARIM, J.--- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, lays a challenge to the order dated 28.09.2015, passed by the Appellate Authority, Lahore.
2. The facts are fortunately refreshingly simple. The respondent No,1 is a candidate from the Union Council-107, Lahore. The petitioner alleges that he filed objections to the nomination papers of the respondent No.
1. According to the learned counsel for the petitioner, those objections were not dealt with by the Returning Officer and the nomination papers of respondent No.1 were accepted. An appeal was filed to the Appellate Authority which proceeded to pass the impugned order.
3. The primary submission of the learned counsel for the petitioner is that the objections of the petitioner were not dealt with in accordance with the mandate of rule 14 of the Punjab Local Government (Conduct of Elections) Rules, 2013 (Rules, 2013) and were not considered at the time of the scrutiny of the nomination papers of the respondent No.
1. This has seriously impinged upon the right, conferred by rule 14 of the Rules, 2013, upon the petitioner and also alleges male animo against the Returning Officer.
4. The learned counsel for the respondent No.1 has controverted and denied the allegations made by the petitioner in the instant petition and in a nub submits that, in fact, no objections were filed to the nomination papers of the respondent No.1 and the objections raised now and in the appeal filed before Appellate Authority is a figment of the petitioner's imagination and is an afterthought.
5. The learned counsel for the petitioner has based his objections to the nomination papers of the respondent No.1 on section 27(2)(e) of the Punjab Local Government Act, 2013 (Act, 2013). The relevant portion reads as follows: "27 (2) A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he-
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(e) is in the service of any statutory body or a body which is owned or controlled by the Government or a Provincial Government or the Federal Government or a local government or, in which any of such Government or local government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement."
6. The learned counsel for the petitioner contends that the respondent No.1 was in the service of a body which is owned and controlled by the Provincial Government (Govt. Of Punjab) and in which the Govt. Of Punjab has a controlling share or interest and is not covered by the exceptions mentioned in the said provisions viz. That the respondent No.1 was neither a part-time official, remunerated either by salary or fee nor is a holder of elected public office. According to the learned counsel, a period of two years has not elapsed since the resignation tendered by the respondent No.l.
7. The fact that the petitioner has resigned as a Director in the Lahore Waste Management Company (public sector company wholly owned by the Govt. Of Punjab) and the Lahore Transport Company is not denied by the respondent No.
1. However, the learned counsel for the respondent No.1 denies that this act of the respondent No.1 is caught by the mischief of the disqualification enumerated in section 27(2)(e) of the Act, 2013. The Appellate Authority has formed its opinion on the basis of the following conclusion: "4. Perusal of record reveals that the appellant has not annexed any order against whom he has filed the instant appeal. According to own version of the appellant, alleged objection filed by him before the learned Returning Officer/respondent No.) are yet to be decided. More over the appellant has not produced any notification issued by the competent authority to show that the respondent No.) was holding such office which bars him to contest the up coming elections, therefore, this appeal being devoid of any legal force is dismissed."
8. It can be seen from a reading of the portion reproduced above that the real reason which weighed with the Appellate Authority was that the petitioner/appellant had not annexed any order against which the appeal was filed. Though the Appellate Authority did not elaborate upon the finding so rendered, the reference clearly was to rule 14 of the Rules, 2013. For facility, the relevant sub-rules of rule 14 are reproduced as under: "14. Scrutiny. --- (1) The scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made objections against the nomination papers, and any voter of the constituency with the permission of the Returning Officer, before the commencement of the scrutiny, and the Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under rule 12.
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub- rule(1), examine the nomination papers and decide an objection raised by any such person to a nomination."
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(10) An appeal against the decision of the Returning Officer rejecting or accepting the nomination paper of the candidate(s) may be preferred by any person present at the time of scrutiny under sub-rule (1) to the appellate authority, who shall be the District and Sessions Judge or any other judicial officer, appointed for the purpose by the Election Commission.
9. The joint reading of the parts of the rule 14, reproduced above, would lead to the ineluctable conclusion that an appeal against the decision of the Returning Officer, rejecting or accepting the nomination papers of a candidate, may be preferred by any "person present at the time of scrutiny under sub-rule (1)". Therefore, the right of appeal has been conferred upon a certain class of persons. We must begin the discussion by reiterating the principle, vouched by respectable authority that a right of appeal is a right conferred by statute and cannot be A inferred or presumed. In the instant case, the right is conferred only upon those persons who are present at the time of scrutiny. From this, clearly an inference can be raised that a person who is present at the time of the scrutiny must have also raised objections to the nomination papers. There is however a sub-category of persons present at the time of scrutiny of papers who file objections, too. The learned counsel for the petitioner, passionately and inexorably, urged that the petitioner raised objections at the time of scrutiny of papers. This Court in W.P No.29330 of 2015 has had the occasion to dilate upon this issue and the following observations in that judgment are pertinent: "6. It is evident that an appeal can only be preferred by any person present at the time of scrutiny under sub-rule (1). Therefore, the right of appeal is circumscribed and is only conferred upon persons who are present at the time of the scrutiny of the nomination papers. It may be stated that the principle has long been settled by respectable authority and superior courts of Pakistan that an appeal is a right which can only be conferred by statute and cannot be inferred or presumed. Therefore, the provisions of rule 14(10) have to be strictly construed...."
8. Moreover, it has been held by the Appellate Authority that it was not necessary for objections to the scrutiny of the nomination papers to be filed in writing. The right of raising objection has been conferred by rule 14(2) of the Rules, 2013 and is as follows: "14(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub- rule(1), examine the nomination papers and decide an objection raised by any such person to a nomination."
9. Although, it has not been mentioned Specifically that objections must be in writing in the context of the filing of the appeal this issue assumes importance and in order to maintain an appeal, it would be necessary for a person to bring home the fact that he was present at the time of the scrutiny. In case objections have been filed, for the purposes of the provisions relating to appeal, it would be a relevant fact that those objections were filed in writing and received by the Returning Officer so that the person filing an appeal can validly say that he had filed objections and was present at the time of the scrutiny. Ideally, the Returning Officer should mention the names of the persons who are, at the time of the scrutiny, present and also as regards those persons who raise an objection. These are important safeguards in order to thwart unscrupulous and frivolous appeals being filed against validly accepted nomination papers ..."
10. Therefore, a baseline question arises in the instant matter. Whether the petitioner was present at the time of the scrutiny and did raise an objection validly and properly before the Returning Officer? Unless, the petitioner is able to cross this threshold, it will be deemed that his appeal before the Appellate Authority was not competent and, therefore, the Appellate Authority was correct in concluding that there were, in fact, no objections and thus an appeal was not competent.
11. The learned counsel for the petitioner has passionately urged that objections were, in fact, filed before the Returning Officer. The Returning Officer has appeared in the Court and upon query denies that either the petitioner appeared before him at the time of the scrutiny or that objections were filed in writing before him. The petition itself is lacking in material particulars with regard to the precise date and time of the filing of the objections. It merely states that the "petitioner's objections were rejected by the Returning Officer unfortunately without passing any order". I have gone through the objections filed by the petitioner too. These objections are un-dated and, therefore, it cannot be gleaned from a perusal of these objections as to when they were filed actually. Also there is no noting on these documents with regard to the receiving of these objections at the office of the Returning Officer, Moreover, the learned counsel for the respondent No.1 has drawn my attention to the portion of the objection petition where it is mentioned that "and the respondent is at the same time being elected unopposed as Chairman of UC-107. So the petition requires urgent attention". The learned counsel for the respondent No.1 invited this Court to draw the inference from this portion of the objection petition that these were filed after the process of scrutiny had come to an end as a member can only be elected unopposed when the process of scrutiny is complete.
12. From the resume of facts, which have been brought forth, it is not clear whether the petitioner filed the objections to the nomination papers of the respondent No.1 nor that he was present at the time of the scrutiny of the nomination papers. This gives rise to competing and controversial set of facts which cannot be gone into in the constitutional jurisdiction of this Court. The parties are at the opposite end of the spectrum with regard to the assertion regarding the filing of the objections to the nomination papers. The Returning Officer 'who appeared before the Court denied that the petitioner was present and simply submitted that there was no specific procedure prescribed for the receipt of the objections to the nomination papers. He merely stated that any objections received by the Returning Officer are stapled to the nomination papers and then considered at the time of the scrutiny. As mentioned above, the Returning Officer has filed his comments and has denied the factum of the filing of the objections by the petitioner. Again this aspect, relates to veracity of the word of the petitioner as against the word of the Returning Officer, which cannot be gone into in the present proceedings.
13. As adumbrated, the primary challenge to the disqualification of respondent No.1 was on the basis of section 27(2)(e) of the Act, 2013. That stage has not arrived and may not arrive in the instant matter as the Appellate Authority has not dilated upon or determined on the merits of the objection raised by the petitioner but has dismissed the appeal on the ground that it was unclear as to whether any objections were filed and considered by the Returning Officer. Therefore, the question whether the respondent No.1 is disqualified on the touchstone of section 27(2)(e) of the Act, 2013 becomes moot and do determination can be made on the said question in the present proceedings. The petitioner may, if so advised, bring appropriate proceedings to challenge the election of the respondent No.1 on the basis of the disqualification which is purportedly engaged in this case and in which a decisions can be given upon a proper ID objective analysis. This petition is, therefore, dismissed.
14. Before I part with this order, a word regarding the grey areas which permeate the provisions of rule 14 of the Rules, 2013 and its susceptibility to becoming a hotbed of uncertenities and rancour. It is a truism that the right to appear and raise objection at the time of scrutiny of nomination papers is of fundamental importance. The need to preserve that right inviolate cannot be overstated. This, in turn, gives rise to the right to file an appeal and is the provenance for it. The present is a watershed case and can be cited as a classic example of what can go drastically wrong at this stage of the elections. From the synoptical resumption of facts it is clear that rule 14 is not happily worded and falls short of the standard to be followed by the Returning Officer in these matters. The Returning Officer stated that he had no guidelines to look up to nor was the path clearly mapped in this regard. The entire controversy revolved around whether the petitioner was present or not or that he filed the objections. There was no prescribed procedure for receiving objections nor to take down the presence of all the persons present at the time of scrutiny. The Returning Officer's discretion is thus left unstructured and he has a complete sway over the matter. This is so whimsical and irrational that it cannot be countenanced and eclipses. The real purpose of the scrutiny of nomination papers. He may not, for any extraneous and political consideration, want to deal with an objection and so may brush it under the carpet at his convenience. The person raising the objections will be left to cross the insuperable barrier of proving his presence and the filing of objection. Unless clear proof is forthcoming, this will be an uphill task to accomplish. Thus it is imperative that a clear and transparent procedure is prescribed for receiving and dealing with the objections and other matters ancillary to the scrutiny of nomination papers.
' A copy of this order shall be transmitted to the Secretary, Election Commission of Pakistan, who shall put in motion appropriate steps for plugging the loopholes in this regard. For the purpose powers under section 19 of the Act, 2013 may be triggered and the Election Commission of Pakistan, by making use of these powers, or any other powers delineated in law, take necessary steps and make appropriate and sufficient provisions in respect of the scrutiny of nomination papers.