MUZAMIL AKHTAR SHABIR, J.---Through this election appeal under Section 46 of the Punjab Local Government Act, 2013, the appellants have called in question order dated 30.05.2017 passed by Election Tribunal, Multan whereby the election petition filed by respondents Nos,1 and 2 was allowed and the election of the appellants was set aside on the ground that on the day of election, appellant No,2 being under-age did not qualify to be the candidate.
2. The brief facts of the case are that the appellants Nos, 1 and 2 respectively were elected as Chairman and Vice Chairman for Union Council No,56, Dakhna Gharru, Tehsil Kehror Pacca, District Lodhran and the respondents Nos,1 and 2 were runners up who filed election petition before the Election Tribunal, Multan on 12.01.2016 for challenging the Notification dated 21.12.2015 whereby the appellants were declared as returned candidates. The appellants contested the said election petition. The Election Tribunal, Multan vide order dated 30.05.2017 accepted the election petition and declared the election of the appellants as null and void being not qualified to contest the election and refer the matter to the Election Commission of Pakistan "ECP" with direction to hold elections in the said constituency. The said order is under challenge through the titled election appeal.
3. The learned counsel for appellants has argued that the Election Tribunal wrongly reached the conclusion that Zeeshan Imtiaz, appellant No, 2 (the elected Vice Chairman), was under-age on the date of filing of nomination papers as according to the record available in the office of Registrar of Births, the date of birth of appellant No,2 was 08.06.1990 and not 01.01.1991 as shown in his national identity card and matriculation certificate. Besides, the National Identity Card and matriculation certificate have subsequently been modified and amended by due process of law and now show the date of birth of appellant No,2 as 08.06.1990 instead of 01.01.1991, therefore, the order passed by the Election Tribunal declaring the appellant No,2 as not qualified to be elected is liable to be set aside.
4. On the other hand, learned counsel for respondents Nos,1 and 2 has argued that on the last date of filing of nomination papers i,e, on 11.09.2015, the law required that the minimum age of the candidate must be at least 25 years whereas appellant No,2 was 24 years 8 months 10 days old only and, therefore, he was not qualified to contest the election in terms of Section 27(1)(b) of the Punjab Local Government Act, 2013 "the Act, 2013".
5. Arguments heard. Record perused.
6. The appellants and respondents Nos,1 and 2 along with respondents Nos,3 and 4 contested the election for the office of Chairman and Vice-Chairman for Union Council No,56, Dakhna Gharru, Tehsil Kehror Pacca, District Lodhran, as a consequence of which, the appellants having obtained highest number of votes were declared as returned candidates vide Notification dated 21.12.2015.
Subsequent to issuance of said notification, an election petition was filed by respondents Nos,1 and 2 for challenging the elections of appellants as Chairman and Vice Chairman of the afore-referred Union Council on the ground that on the date of filing of nomination papers, the appellant No,2 was under-age and did not qualify to be elected.
7. With the nomination papers, appellant No,2 had attached his National Identity Card wherein his date of birth was mentioned as 01.01.1991 and if the said date was correct then the appellant No,2 was less than 25 years of age which was the basic requirement for a candidate to contest the afore-referred elections with only exception being a candidate for the post of youth member who could be less than the said age and above 21 years of age; hence the appellants were required to be at least 25-years of age on last date for submission of nomination papers. The Returning Officer did not look into the National Identity Card or any other document filed by appellant No,2 to verify that he had the required age qualification as prescribed under Section 27(1)(b) of the Act, 2013, consequently his nomination papers were accepted. It is pertinent to note that the nomination papers of respondents Nos,1 and 2 were rejected on some other ground against which the said respondents filed appeal, through which, they were permitted to contest the afore-referred elections. Subsequently, in the election process, the appellants got elected and notified as returned candidates and at this stage, the election petition was filed by the respondents to challenge the results of the elections. It has been contended on behalf of appellants that respondents did not raise the afore-referred objection before the Returning Officer and the appellate authority at the time of scrutiny of nomination papers as required in terms of Rule 14 of the Punjab Local Government (Conduct of Election) Rules, 2013 "the Election Rules, 2013", therefore, they are now precluded to raise the said objection subsequently through election petition after declaration of result. For resolving the said controversy reference may be made to rules 12 and 14 of the Election Rules, 2013, which are reproduced below: "12. Nomination for elections.--(1) A Returning Officer shall, as soon as may be, after the announcement of the Election Schedule under rule 11, give a public notice in Form-I, in respect of the constituency or constituencies for which he has been appointed as Returning Officer, inviting nominations, specifying the date(s), time and the place at which nomination papers shall be received by him.
(2) Any voter of a constituency 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 that constituency.
(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-11(A);
(ii) .....................
(iii) ..............................
(iv) ................................
(v)................. and (vi)the Chairman and the Vice Chairman or Vice Chairmen of a District Council or, as the case may be, a Municipal Committee, and the Mayor and the Deputy Mayor or Mayors of a Municipal Corporation or Metropolitan Corporation, as joint candidates, in Form-11(F): Explanation.-- For purposes of sub-rule (3)(v) and (vi), the proposer and seconder shall be the members of the local government for which the candidate or joint candidates seek an election.
(4) Every nomination paper made under sub-rule (3) shall be accompanied by the following declarations, signed by the candidate or the candidates:
(i) that he/they have consented to the nomination and that he/they fulfill the qualifications specified in section 27 (I) of the Act and is/are not subject to any of the disqualifications specified in section 27 (2) of the Act or any other law for being elected as a member;
(ii) ...........................
(iii) ...................and
(iv) .....................................
(5) .........................................................
(6) Every nomination paper shall be delivered by the candidate or his proposer or seconder to the Returning Officer, who shall assign a serial number to every nomination paper and endorse thereon the name of the person presenting it and acknowledge the receipt of the nomination paper specifying the date and time of receipt, and inform such person of the time, date and place at which he shall hold scrutiny.
(7) .....................................
(8) ..............................
(9) ..................................
(10) The objection, if any, shall be taken into consideration at the time of scrutiny of nomination papers.
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.
(3) The Returning Officer may, either on his own accord or on an objection, conduct such summary inquiry as he may think fit and reject a nomination paper if he is satisfied that:
(a) the candidate is not qualified to be elected as a member, a Chairman and a Vice Chairman, or a Mayor and a Deputy Mayor
(b) .................;
(c) any provision of rule 12 or rule 13 has not, been complied with; or
(d) ........................
(4) ........................................
(5) The Returning officer may, for purposes of scrutiny, require any agency or authority to produce any document or record.
(6) In case of joint candidacy, the rejection of the nomination of either a Chairman or a Vice, Chairman or a Mayor or a Deputy.
Mayor shall be construed as rejection of nomination all those joint candidates.
(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.
(8) ..........................................
(9) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and, in case of rejection, record brief reasons therefor.
(10) ................................................
(11) ......................................
(12) .........................................................................
8. The rule 12 provides that after the announcement of Election Schedule, the returning officer shall invite nominations, specifying the date, time and place at which nomination papers shall be received. Voters of the constituency may propose and second the names of candidate or candidates as the case may be through nomination papers to be signed by the proposer, seconder and the candidate or candidates, as the case may be. The Chairman and Vice Chairman are to apply as joint candidates. Every nomination paper is to be accompanied by some declarations signed by the candidate including the declaration that he has consented to the nomination and he fulfills the qualifications specified in section 27(1) of the Act and is not subject to any disqualification specified in section 27(2) of the Act. The complete nomination papers are to be delivered to the Returning Officer by the candidate or his proposer or seconder, who is required to assign a number to every nomination paper and endorse the name of person presenting it and acknowledge the receipt of nomination papers specifying the date and time of receipt and inform the such person of the time, date and place at which he shall hold scrutiny.
9. The rule 14 provides for procedure of scrutiny. The scrutiny of nomination papers is to 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. The returning officer is required to give reasonable opportunity to the persons present for examining all nomination papers delivered to him. Thereafter, the Returning Officer is required to examine the nomination papers and decide objections raised by any person to the nomination for which purpose the Returning Officer may also conduct summary inquiry or require any agency or authority to produce any document or record. The Returning Officer may reject nomination papers if the candidate is not qualified to be elected and in case of joint candidacy, the rejection of nomination of one candidate would be construed as rejection of nomination papers of all those joint candidates. However, the Returning Officer may not reject a nomination paper on ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith.
10. In the present case, the candidate was required to declare that he was qualified to be elected and it was the duty of the Returning Officer to verify the same. Section 27(1)(b) of the Act provides that the candidates shall not be less than 25 years of age on the last date fixed for filing the nomination papers. The appellant No,2 on the basis of National Identity Card attached with the nomination papers was less than 25 years of age. Although the objections were not raised against the candidature of the appellant No,2 on the basis of being under age but the Returning Officer was himself required to verify the age of the candidate to check if he was qualified to be elected as a candidate, even if no objection is raised by any party as the same related to basic qualification to contest the election. The said aspect of the matter was inadvertently overlooked by the Returning officer.
11. The question that needs to be addressed is that whether the said objection relating to qualification or disqualification of a candidate can be raised at the stage of election petition after declaration of result when the said objection was neither raised at the time of scrutiny of nomination papers nor determined by the Returning Officer under Rule 14 of the Rules. An election to a constituency in Local Government can only be called in question through an election petition under section 38 of the Act and not otherwise. The grounds for declaring the election of a returned candidate as void are provided in section 42 of the Act. Reference may be made to Section 42(1)
(b) of the Act, 2013 where it has been mentioned that election may be declared as void if the returned candidate was disqualified or not qualified to be elected as member. The said Section is reproduced below: "42. Ground for declaring election of returned candidate void.--(1) The Election Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-- (a) or (b)the returned candidate was not, on the nomination day, qualified for or was disqualified from, being elected as a member;
(c) ...............................
(d) ..........................
This means that even if the objection is not raised to the qualification or disqualification of the candidate to contest the election at the time of filing nomination papers, the same can be raised subsequently to call in question his election as returned candidate.
12. Although the rule 14 does not expressly provide that if no objection is raised about the qualification of a candidate to contest the election at the time of scrutiny, the same could not be subsequently raised, the petitioner has argued that it bars raising of the said objection by necessary implication.
13. It is by now settled law that the rules and regulations are the progeny or offspring of a statute and were to be strictly interpreted in conformity with the provisions of the statute whereunder same were framed. Rules framed under a statute were to remain within the precincts of the statute itself and could not transgress the limits and parameters of the parent statute itself. All efforts were to be made to interpret the rules so as to bring them in conformity and without injuring the intent and spirit of the statute, however where it was not possible then the rules in as much as they injured the very intent and spirit of the statute must yield to the statute. Reliance is placed on National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited (2016 SCM R 550)
14. It is also settled law that the operation of a statute or any statutory provision is not dependent upon framing of the Rules. However, in some cases, the absence of Rules may affect the enforceability or operatability of the statute. The framing of Rules would be generally relevant for determining as to whether the power under the statute has been exercised properly or not, but the existence of Rules could neither save nor destroy the constitutional validity of the Statute. Reliance in this regard is placed on Shahid Pervaiz v. Eiaz Ahmad and others (2017 SCM R 206) wherein it is held as under: "In some cases, the absence of Rules may affect the enforceability or operatability of the statute as happened in the case of section 9-A of the Sindh Civil Servants Act, where the Rules were to prescribe the procedure for claiming benefits under the provision and such could not be claimed unless the procedure prescribed in the statute was adopted. However, for considering the constitutionality or otherwise of a statute on the touchstone of the Constitution or Fundamental Rights, framing or non-framing of the Rules under that statute could hardly be relevant. The framing of Rules would be generally relevant for determining as to whether the power under the statute has been exercised properly or not, but the existence of Rules could neither save nor destroy the constitutional validity of the Rules. Thus the reasoning in the earlier judgments with respect to section 9-A of the Sindh Civil Servants Act, is fully applicable to section 8-A of the Punjab Civil Servants Act."
Besides while interpreting the law, all possible efforts should be made to adhere to rules of purposive and harmonious construction so that allegedly conflicting provisions should be reconciled and saved. Reliance is placed on Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others (PLD 2018 SC 81). While relying upon the afore referred judgment, it is observed that Rule 14 is to be interpreted through harmonious construction to reconcile the same with Sections 38 and 42 of the Act. The Rule 14 provides for challenge to the nomination papers of a candidate on the grounds of disqualification or absence of qualification through process of scrutiny of nomination papers prior to the holding of elections whereas the Sections 38 and 42 of the Act relate to declaration of result of elections as void, inter alia, on the grounds of disqualification or absence of qualification to contest elections after a candidate has been declared as returned candidate, therefore, both the provisions can co-exist side by side. Moreover, in case reported as Abdul Rashid and another v. Election Appellate Authority and others (2016 SCM R 1215), the Hon'ble Supreme Court has observed that where the concerned local authority under the Punjab Local Government Act, 2013 allowed a candidate to contest the elections by accepting the nomination papers, the same could not challenge in the writ jurisdiction of this Court for the reason that such challenge could be thrown in post-election proceedings through an election petition under Section 38 of the Punjab Local Government Act, 2013.
15. By placing reliance on the afore referred judgments, it is observed that Rule 14 neither expressly nor by necessary implication prohibits the raising of objection relating to disqualification or absence of qualification of a candidate to contest the elections through an election petition filed after the candidate has been declared as returned candidate in case the said objection has not been raised during the process of scrutiny of nomination papers prior to the holding of elections.
Furthermore, challenge to election on the afore referred grounds is provided through election petition under Sections 38 and 42 of the Act and there cannot be any estoppel against the law.
Reliance is placed upon Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others (2017 SCM R 2066). Thus, the objection raised by the appellants that under Rule 14 (supra) the respondents were barred or estopped to call in question the elections of the appellants through election petition is misconceived and without any substance therefore the same is declined.
16. The section 27(1)(b) of the Act, 2013 provides that the appellant No,2 should have been of 25 years of age at least for contesting the said election and the documents/I.D. Card produced by the appellant No,2 with the nomination papers clearly mentioned that his date of birth was 01.01.1991 and as per said document on 11.09.2015 i,e, last date for submission of nomination papers, his age was 24-years 8-months 10-days which is less than the minimum age of 25-years prescribed for all candidates except for Youth Member. Even, the matriculation certificate of appellant No,2 also mentioned the date of birth as 01.01.1991, therefore, appellant No,2 was not qualified to contest the said election. Even if, the actual date of birth of the appellant No,2 was 08.06.1990, the document placed by the appellant in support of nomination papers did not mention the same. Subsequently, after the filing of election petition on 20.01.2016, the appellant filed an application for correction of his date of birth in National Identity Card and matriculation certificate which has been allowed, however, on the relevant date, the afore-referred documents i,e, National identity Card and matriculation certificate to which presumption of authenticity was attached mentioned the date of birth as 01.01.1991. The National Identity Card had been placed on record with the nomination papers by the appellant No,2 himself, therefore, the Election Tribunal was justified in accepting the election petition filed by respondents Nos,1 and 2 and declaring the appellant No,2 as not qualified to contest the elections. The candidature of both the candidates was joint and both the candidates had to swim and sink together on the basis of doctrine of sinker. Reliance in this regard is placed on Ch. Muhammad Azeem v. Election Tribunal/District and Sessions Judge and 8 others '(2007 M LD 1717). Consequently, the election result of both the joint candidates has rightly been set aside and their election has rightly been declared void.
17. The appellant No,2 filed an application for his ossification test, however, the request of appellant No,2 was declined by the Election Tribunal in view of the presumption of authenticity and validity of the documents available on record. Besides for scrutiny of nomination papers the Returning Officer was required to conduct summary inquiry and not to enter into detailed process of scrutiny of record and recording of evidence to determine whether the dates in documents produced by the petitioner were rightly or wrongly incorporated and the Election Tribunal had just to determine whether the appellants were qualified to be elected on the last date fixed for submission of nomination papers on the basis of available record and evidence relating to the same led by the parties, which has rightly been done by the Election Tribunal. No exception can be taken to the same under the law in the given circumstances of the case.
18. It has been argued that the documents of the appellant No,2 have now been corrected therefore, he cannot be removed from the elected office at this stage as he presently has documents in his possession to show that he was qualified to be elected on the basis of age. I am not much impressed by the argument raised by the appellants because where a law requires a thing to be done in a particular manner, it should be done in that manner and all other modes would not be permissible rather the same would be against the law and legislative intent and could not be treated as mere technicalities. Reliance is placed on Zia ur Rehman v. Syed Ahmad Hussain and others (2014 SCM R 1015). Same principle has been laid down in Muhammad Anwar and others v. Ryas Begum and others (PLD 2013 SC 255). Moreover, any inherent disqualification or disability is not curable by any subsequent eventuality. If the original appointment was void any subsequent development for ratifying the same would not be conducive to public policy. Reliance may be placed on Farhad All Khan v. Ch. Muhammad Siddique and others (1998 SCM R 2190).
Hence by placing reliance on the principles laid down in the above mentioned judgments, it is held that when the appellant No,2 failed to demonstrate that he was qualified to be elected on the last date fixed for submission of nomination papers, any subsequent development would not make him qualified to be elected with retrospective effect.
19. The learned counsel for the appellants has argued that the Election Tribunal was persuaded to decide the matter against the appellants due to some overwriting in entry in the copy of register of births produced in evidence, whereas the original record was free from any such overwriting which fact has not been taken into consideration by the Election Tribunal. Be that as it may, the said overwriting, if any is inconsequential because the Election Tribunal was justified to place reliance on Identity Card and matriculation certificate available with the appellant No,2 at the time of filing of nomination papers for reaching conclusion against the said appellant that he was not qualified to contest election being underage,. No exception can be taken to the same in the given circumstances of the case.
20. For what has been discussed above, this election appeal being devoid of any force is dismissed.