Through this writ petition petitioners have challenged the order dated 15.12.2016 passed by the Appellate Authority Election District Council. Multan/District & Sessions Judge, Multan whereby appeal filed by Respondents Nos. 3 to has been accepted and order of acceptance of nomination papers, filed by the petitioners, passed by the Returning Officer/District Council, Multan has been set aside, nomination papers have been rejected.
2. Brief facts of the case are that joint nomination papers were filed by the petitioners; Petitioner No, 1 filed nomination papers for the office of Chairman and Petitioners Nos. 2 to 5 as Vice Chairman, District Council, Multan before the Returning Officer/Respondent No,
2. After scrutiny nomination papers were accepted. It is pleaded that after the acceptance of nomination papers and after closing of working hours at 4:40 p.m. Respondents Nos. 3 to 7 filed objections to the nomination papers mainly against Petitioner No, 1 on the ground that he has resigned from the office of Chairman Union Council on 18.2.2016 in order to contest the election of National Assembly, as such he was no longer the member of Electoral college for the above said reasons, therefore, nomination papers filed by the petitioners be rejected. Respondent No, 2 passed an order mentioning that the objections have been filed after the prescribed time. The Returning Officer noting that no de-notification showing cancellation of Chairmanship of Petitioner No, 1 for Union Council No, 180 has been issued by the Election Commission Office, Multan or Election Commission of Pakistan and it is further noted that the objector Umar Farooq could not substantiate his objection, therefore, the nomination paper were accepted. Respondents Nos. 3 to 5 opted to prefer an appeal before the appellate authority against the acceptance of nomination papers of the petitioned, Appeal has been accepted vide order dated 15.12.2016 and nomination papers have been rejected. Hence, this writ petition by the petitioned, 3.Learned counsel for the petitioners argues that a single question is involved in this petition that whether a valid resignation has been 'tendered before the competent authority. States that the order of the appellate authority is absolutely without jurisdiction as the appeal has been accepted on the basis of alleged ethical grounds and not on the legal grounds. Prays for acceptance of the writ petition while referring various provisions of the Punjab Local Government Act, 2013, Punjab Local Government (Conduct of Election) Rules, 2013 and the Punjab Local Governments (Resignation) Rule, 2016 as well as case law on the subject.
4.On the other hand, learned counsel for the Election Commission of Pakistan/Respondents Nos. 1 & 2 as well as learned counsel representing Respondents Nos. 3 to 7 have vehemently opposed the writ petition and argued that the order passed by the appellate authority is in accordance with law, same has been passed rightly and the order of Returning Officer accepting the nomination papers of the petitioners has been set aside.
5. I have heard learned counsel for the parties at length and gone through the record.
6.The objection raised by Respondent No, 3 against the submission of nomination papers by the petitioner was that Petitioner No, 1 after he was elected as Chairman Union Council No, 180, Alipur, opted to contest, the Bye-Election of National Assembly for the Constituency NA-153, therefor", he resigned from the Chairmanship of the said Union Council, therefore, he is not eligible to contest the election of Chairman District Council.
7.The Punjab Local Government Act, 2013 will be mentioned as "Act" and Punjab Local Government (Conduct of Election) Rules, 2013 will be referred as "Rules" in the later part of the order.
8. According to the facts surfaced on the record, Petitioner No, 1 on 18.2.2010 tendered-his resignation. As per language of resignation from the office of Union Council, the resignation was addressed and presented to Assistant Director, Local Government, Multan, which was forwarded in original to the District Election Commission, Multan for information and action as per endorsement.
The case of the petitioner is that the resignation was not addressed nor presented to the proper authority in accordance with Section 34 of the "Act", therefore, it was having no value and the resignation tendered before a wrong forum cannot be considered to be a valid tendering of resignation and when a valid resignation has not been tendered before the appropriate forum then no question of effect of resignation. As per learned counsel for the petitioners the resignation was returned by the Government of the Punjab, Local Government & Community Development Department vide letter dated 21.10.2016, before further dilating upon the matter in issue, it will be appropriate to consider the relevant provisions of law.
9. A list of the elected members eligible to vote is provided by the Election Commission to the Returning Officer in accordance with Rule 48 of the Rules, ibid, for the election of Chairman and Vice Chairman and in accordance with the list issued by the Election Commission of Pakistan the name of Petitioner No, 1 is mentioned at Sr. No, 112 for the Electoral rolls for the election of seats of Chairman/Vice Chairman, District Council, Multan. In accordance with sub-rule (8) of Rule 14 the Returning Officer has no authority to inquire into the correctness or validity of the entry in the electoral roll. At this stage it will be appropriate to observe that the Punjab Local Government (Resignation) Rules, 2016 have been promulgated on 4th of August, 2016, whereas, the event of tendering resignation is dated 18.2.2016. It is consensus between learned counsels for both the parties that these rules do not apply on the matter in issue; therefore, it is the consensus that Section 34 of the Act governs the matter in issue. It will be appropriate to note here that the qualifications and disqualifications for candidates and elected members are mentioned in Section 27 of the Act, the case of the petitioners does not fall in the disqualification mentioned in section.
The attack by the respondents was about the fact that Petitioner No, 1 is no more a voter member but it has been admitted that it was never moved by the objector/respondent before the Election Commission for removal of the name of Petitioner No, I From the Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan. There is a specific provision available in the Act for notification of election, resignation and removal under Section 37 of the Act.
Admittedly, the resignation of Petitioner No, 1 has never been notified by the Election Commission and his name has not been removed from the list of Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan. In accordance with sub-section (2) of the said section whereby the Government has to notify the same. Admittedly, the Government has also not notified the resignation or removal of name of Petitioner No, 1 from the Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan. Needless to state that in accordance with Section 20 of the Electoral Rolls Act (XXI) of 1.974 the entries of the voter list can be challenged before the promulgation of the schedule of election. In the instant case the Electoral Rolls list has never been challenged before the Election Commission. The election schedule was promulgated, on 01.1.2.2016. In accordance with sub-rule (5) of Rule of the Punjab- Local Government (Resignation) Rules, 2016 the Government shall, notify the vacation of the office owing to resignation under sub-section (2) of Section 37 of the Act. Admittedly, there is no such notification of the vacancy. The argument that at the time of participating in the reserved seats by Petitioner No, 1 on 12.11.2016 no one has raised the objection with regard to eligibility of Petitioner No, 1 for casting the vote has value. The argument of learned counsel for the contesting Respondents Nos. 3 to 7 that the resignation was though tendered before the Assistant Director, Local Government but copy was sent to the Secretary Union Council, therefore if there was any defect same has been cured when the copy has been sent to the Secretary Union Council, I am unable to agree Co with these arguments on the basis of the judgment of the august Supreme Court of Pakistan reported as "Mian Muhammad Nawazi Sharif versus President of Pakistan and others" (PLD 1.993 Supreme Court 473) because a resignation tendered before the wrong forum should not have been received and in the instant ease the resignation has not been acted upon and it never reached to the forum where it was to be tendered.
10. As per the learned appellate authority the resignation has been tendered before the Returning Officer, I am unable to understand that how it was a valid tender in accordance with Section 34 of the Act. The discussion of the fact of submission of nomination papers by Petitioner No, 1 for Bye- Election of N.A.153 Multan VI is not directly relevant and the ' learned appellate authority on the basis of presumptions non-suited the Petitioner No, 1 which is not permissible under the law. Even otherwise case of Petitioner No, 1 is that he opted to retire from the election of NA-153 on 11.3.2016 whereas polling day was 17.3.2016. The findings of learned appellate authority that if the resignation was not properly addressed, but it was forwarded to Election Commission of Pakistan, the irregularity was rectified, this finding is also based upon misconception as Election Commission of Pakistan is also not an authority before whom the resignation was to be tendered. There comes another important question that at the time of resignation no local government was in existence, even the election of reserve seats was not .yet held at that time, therefore, I have a doubt in my mind that resignation could have been tendered at that time.
11. In view of the above discussion, the order passed by the learned Appellate Authority by ignoring the provisions of law referred supra, when name of Petitioner No, 1 is available in the Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan, the resignation has not been tendered before the Local Government of which he is a Chairman. Unless a resignation is tendered in accordance with sub-section (1) of Section 34 no question of deeming clause of sub-section (2) of Section 34 of the Act arises. The resignation admittedly has not been acted upon the name of Petitioner No, 1 exists in the Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan. In this view of the matter, the order passed by the appellate authority dated 15.12.2016 being against the law and without jurisdiction, is declared as such, same is not sustainable under the law. In view of the above, .instant writ petition is accepted and the result would be that the order dated 10.12.2016 passed by the Returning Officer regarding acceptance of the nomination papers of Petitioner No, 1 as well as Petitioners Nos: 2 to 5 will hold the field.