MIAN SAQIB NISAR, J.---This petition has been filed. Against an impugned judgment dated 29.10.2015 passed by the learned Single Judge of the Lahore High Court, Lahore wherein he has accepted Writ Petition No, 31940/2015 without notice to the respondents (petitioner in this petition).
The brief facts giving rise to the instant petition are that the petitioner filed his nomination papers before the Returning Officer for Union Council 199, Ward No, 1 as a candidate for election as general councilor. Vide order dated 16.9.2015 the Returning Officer rejected the nomination papers of the petitioner on the basis that his proposer Mr. Nabeel Ali was neither from Ward No, 1 nor Union Council 199 but instead from Union Council 198. On 23.9.2015 the Additional District Judge (appellate authority) allowed the petitioner's appeal against the Returning Officer's order ibid and allowed his nomination by allowing inclusion/substitution of fresh proposer in the nomination papers. Being aggrieved, the respondent No, 1 challenged the aforesaid appellate order through Writ Petition No, 31940/2015 which was allowed by the learned Single Judge of the Lahore High Court without assigning any reasons of his own rather by exclusively relying on the Full Bench judgment dated 19.10.2015 passed in Writ Petition No, 31556/2015 the result whereof is/was that the nomination papers of the present petitioner for election as a general councilor from Ward No, 1 of Union Council 199, were rejected.
2. As the petitioner has expressed his inability to engage a legal counsel on 21.7.2016 and 28.7.2016 we appointed Ms. Ayesha Hamid, Advocate Supreme Court as amicus curiae to assist this Court on the legal issues.
3. The petitioner in person argued that the Returning Officer wrongly rejected his nomination papers and that the appellate authority correctly allowed the petitioner to substitute the name of the proposer, Nabeel Ali with the name of one Dr. Muzaffar. He argued that this was a minor defect which could be rectified at the time of scrutiny of nomination papers and the appellate forum has allowed the rectification.
4. The learned counsel for respondent No, 1 supported the Full Bench judgment of the Lahore High Court dated 19.10.2015 in Writ Petition No, 31556/2015 (hereinafter the Full Bench judgment) and stated that the admitted defect of the petitioner's proposer not being from the constituency of the petitioner was a defect of a substantial nature which could not be rectified through allowing substitution of new proposer.
5. The learned amicus curiae stated that the legal questions before the Full Bench of the Lahore High Court were firstly whether a proposer and/or seconder under Rule 12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 (hereinafter the 2013 Rules) must be from the same constituency from which the candidate is nominated and secondly the subsequent question arises that if the proposer and/or seconder are from another constituency, is such a defect of a substantial nature or can it be remedied by the Returning Officer under the provisions of Rule 14(7) of the 2013 Rules, at the time of scrutiny. She further stated that a number of subsidiary questions arose from consideration of the aforesaid legal propositions:---
(i) What is the object or purpose of nomination by a proposer and seconder?
(ii) Are the provisions of Rule 12(2) of the 2013 Rules mandatory; and
(iii) If there is a defect in nomination papers with respect to the proposer and seconder not being from the constituency, is the same amenable to rectification in terms of Rule 14(7)?
(iv) What is the constituency? Is it the ward or the union council which is to be treated as a constituency?
' In this regard she placed reliance on Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 SC 277), Mudassir Qayyam Nahra v. Election Tribunal Punjab, Lahore (2003 M LD 1089) and Brijendralal Gupta v. Jwalaprasad, etc. (AIR 1960 SC 1049). After tracing the legislative history of the provisions of Rules 12(2) and 14(7) of the 2013 Rules she further stated that the only qualification of a proposer and/or seconder are that they be a voter and therefore in the absence of said qualification the Returning Officer is obliged to reject the nomination papers under Rule 14(3)(b) of the 2013 Rules and that the power for remedying and rectifying a defect under Rule 14(7) of the 2013 Rules is limited to defect of a clerical nature. A defect with respect to the proposer and/or seconder not being a voter of the constituency would go to the heart of his qualification to be a proposer or seconder as the same was the only qualification required of such person and same was not amenable to rectification. Under Rule 14(10) of the 2013 Rules the appellate authority could not allow substitution as it was limited by the scope of powers granted to the Returning Officer for scrutiny, rejection, rectification of the nomination papers.
6. We have given anxious consideration to the legal questions raised before us. First of all we are constrained to note that the learned Single Judge of the Lahore High Court ought not to have passed the impugned judgment without notice to the petitioner, no matter how squarely the Full Bench judgment hit the facts of the present case. We cannot appreciate and uphold such an approach but in the instant case as we have supplied the omission (of lack of hearing afforded to the petitioner) and on account of our opinion nothing much turns on this lapse of the Court, therefore, we are not persuaded to interfere in the matter on this score. Having carefully examined the rationale of the Full Bench judgment with the assistance of the learned amicus curiae, we are of the view that the question as to whether the provisions of Rule 12(2) of the 2013 Rules are mandatory or not stand settled in the light of the ratio of the case of Rana Muhammad Tajammal Hussain (supra) where this Court held with respect to Section 12(1) of Representation of People Act, 1976 (which provision is pari materia to Rule 12(2) of the 2013 Rules) that:- "the object of section 12(1) of the Act, 1976 is that elector of the constituency may propose or second the name of any duly qualified person as a candidate for election as a member for that constituency, clearly spells out the intention of the legislature. Therefore, keeping in view that intention of the legislature the word 'may' used in section 12(1) has to be read as 'shall' and nor having held that the word 'may' can be interchanged with the word 'shall' to enhance the intention of the legislature, the candidate is bound and under mandatory obligation to ensure filing of nomination papers from the constituency duly proposed and seconded by the electors therefrom.
There is no cavil with the proposition that once it is found out that a provision of the law is mandatory by its implication, the same is bound to be strictly following as has been held in Dalchand v. Municipal Corporation Bhopal AIR 1983 SC 303".
' Hence the provisions of Rule 12(2) of the 2013 Rules are mandatory. Rule 12(2) is reproduced hereunder:- "12(2) Any voter of a Union Council or Ward may propose or second the name of any duly qualified person to be a candidate for an election of a member or as the case may be, the Chairman and the Vice Chairman of a Union Council."
' It would appear that the only qualification for a proposer and/or seconder is that they are a voter of the constituency. Voter is defined at Section 2(111) of the Punjab Local Government Act, 2013 as under:---.
"Voter" means a person, whose name for the time being appears on the electoral roll prepared or adapted for the purpose of the election under this Act".
' Proposer and/or seconder are not defined anywhere in the Act ibid or the 2013 Rules, therefore, it would appear that the only qualification of a proposer and/or seconder are that he/she be a voter of the constituency. As this is the sole qualification of a proposer and/or seconder a defect with respect to said qualification would go to the heart of the qualification of such proposer and/or seconder to subscribe to the nomination papers and the same would be liable for rejection under Rule 14(3)(b) of the 2013 Rules. That takes us to the question of whether failure of the proposer and/or seconder to be a voter of the constituency from which a candidate is nominated is a defect of a substantial character in terms of Rule 14(7) of 2013 Rules.
7. The nomination form 11(b) for election to general seats of wards in Union Councils/Municipal Committees requires a declaration by the proposer and the seconder to the effect that he is registered as a voter at serial No, such and such of electoral roll for the electoral area of ward No, such and such of the union council/municipal committee. The declaration with respect to the proposer and/or seconder being the essence of his qualification, therefore, if he is not such a voter of the relevant constituency he cannot act as proposer and/or seconder. The question of the object and purpose of nomination by a proposer and/or seconder have been dealt with by a judgment of this Court cited as Federation of Pakistan v. Mian Muhammad Nawaz Sharif (PLD 2009 SC 284) wherein at paragraphs 78 and 79 this Court held that the proposer and seconder are recommendees with respect to the candidate nominated for election. The ineluctable conclusion is that the proposer and the seconder must be voters of the same constituency, who put forward the name of a duly qualified candidate whom they considered suitable to represent the electorate. It is an endorsement of the nominated candidate by voter(s) of the same constituency, Therefore, should it be discovered that the proposer and/or seconder are not voters of the said constituency it would be tantamount to no nomination at all and thus a defect of a substantial nature. Rule 14(7) of the 2013 Rules only empower a. Returning Officer to allow a defect other than one of a substantial nature to be remedied, such as the name, or the corresponding serial number in the electoral roll or other particulars of the candidates or his proposer or seconder and son as to ensure that the same are accurate. But if the name of the candidate and his particulars are altogether missing and/or same is the position of the proposer/seconder the Returning Officer cannot be allowed to add these afresh. The same shall be the position with regard to substitution as the said rule does not envisage substitution of the name of the disqualified proposer and/or seconder and the Returning Officer has no lawful authority to allow an altogether new person to be replaced as a seconder or proposer for a person who is absolutely disqualified or ineligible to propose or second. In the present case the petitioner, did not ask the Returning Officer for such substitution; in fact it is not his case in the memo. Of appeal that he either requested the Returning Officer to allow the substitution later allowed to him by the appellate forum. The Returning Officer and the Appellate authority are barred from correcting a defect of a substantial nature; if the fact that the proposer and/or seconder is not a voter of the constituency is not a defect of a substantial nature, then what is? Therefore, there can be no valid appellate orders allowing substitution or rectification of a defective nomination paper. In the case reported as Mudassar Qayyum Nahra v.
Election Tribunal, Punjab, Lahore (2003 M LD 1089) (full bench of the Lahore High Court), it has been held:--- "The unqualified proposer or seconder leads to the rejection of nomination papers as provided in section 14(3) (b) and, therefore, such a defect cannot be held to be not of substantial nature because such a defect can be removed only by the substitution of the proposers or the seconders and the safety valve has been provided to the candidates by permitting them by filing up to five nomination papers."
' Whilst the aforesaid finding is with respect to the equivalent provision of the Representation of People Act, 1976 we see no reason to differ from an eminently logical interpretation of the same.
The same finding is therefore upheld with respect to Rule 14(7) ibid; it does not allow substitution of proposer or seconder who is found to be unqualified to subscribe to a nomination paper.
8. It is notable that in the Punjab Local Governments Ordinance, 2001 general councilors to be elected as members of union council were elected from a multi number constituency comprised of the entire union council. In those circumstances perhaps the difference between different wards would not have been of material consequence but in the present scheme for election to the union council under the Punjab Local Government Act, 2013 the six general members of the union council are to be elected one from each ward of the union council. Therefore, the smallest unit in terms of a constituency is the ward which elects a general member to the union council. The proposer and seconded must therefore be from the same ward of the union council from where the candidate for election as general member of the union council is to be nominated.
9. In the light of the aforesaid findings, we dismiss the instant petition. Having done so we uphold the decision of the Full Bench of the Lahore High Court dated 19.10.2015 in Writ Petition No, 31556/2015.
' Before parting, we would like to appreciate the very valuable assistance provided to us by the learned amicus in this case.