IBAD-UR-REHMAN LODHI J.:- With the concurrence of learned counsel for the parties, the hearing of all the appeals is being treated as pacca hearing.
2. Through this common judgment, I intend to dispose of this appeal as also Electio n Appeals No.17, 35, 46 and 50 of 2018, as common question in all these appeals, as to whether in view of the provisions of Section 28 of The Punjab Local Government Act, 2013, the Mayor , Deputy Mayor , Chairman or Vice Chairman are barred to contest the election for any other political office unless they resign from their such office in Local Governments. In some of the cases, the rejection of nomination papers filed by such office holders i.e. Mayor , Deputy Mayor , Chairman and Vice Chairman for the forthcoming elections of Provincial and National Assem blies, whereas in some of the appeals, the acceptance of nomination papers of existing of fice holders in Local Government is challenged.
3. On 23.08.2013, The Punjab Local Government Act, 2013 (Act XVIII of 2013) was promulgated to rationalize and reorganize the local government system in the Punjab. Section 28 of The Punjab Local Government Act, 2013, which is reproduced herein below would read as under:- "28. Bar against dual membership.- (1) A Mayor , a Deputy Mayor , a Chairman or a Vice Chairman may contest election for any other political office after resigning from the office of the Mayor , Deputy Mayor , Chairman or Vice Chairman.
(2) A member of a local government, other than the Chairman of a Union Council, may contest election for any other political office without resigning from the membership of the local government but any such member shall not simultaneously hold more than one office.
(3) If a member of a local government is elected to any other political office, on the notification of election of that political office, his seat as member of the local government shall become vacant.
When elections to the Provincial and National Assemblies for 25.07.2018 were announced, some office holders in Local Government in Punjab filed their nomination papers, either for the Provincial Assembly or National Assembly and in number of cases, their candidatures were rejected by the Returning Officers, on scrutiny in view of the bar contained in Section 28 of The Punjab Local Government Act, 2013.
The elections scheduled to be held on 25.07.2018 are to be regulated through The Elections Act, 2017 (XXXIII of 2017) enacted on 02.10.2017. Section 231 of The Elections Act, 2017 provides that the qualifications and disqualifications for a person to be elected or chosen or to remain a Member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly shall be such as provided in Articles 62 and 63 of The Constitution of the Islamic Republic of Pakistan, 1973.
Article 62 of The Constitution of the Islamic Republic of Pakistan, 1973 provides qualifications of a person to be elected or chosen as a member of Majlis-e-Shoora (Parliament), whereas disqualifications of such person are provided in Article 63 of the Constitution.
In support of the stated disqualification for sitting members of the Local Government to be candidates in the forthcoming elections for any Constituent Assembly without resigning from their present responsibilities in Local Government is pressed, while referring Article 63(1)(p) of The Constitution of the Islamic Republic of Pakistan, 1973, which provides that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if he is for the time being disqualified from being elected or chosen as a member of a Majlis-e-Shoora (Parliament) or of Provincial Assembly under any law for the time being in force.
Section 28 of The Punjab Local Government Act, 2013 provides a bar against dual membership for existing Mayor , Deputy Mayor , Chairman or Vice Chairman in Local Government, however , it is a fact that such "bar" cannot be treated as a "disqualification" within the meaning of Article 63(1)(p) of the Constitution.
The term bar' is defined in Rafiq's Law Dictionary as well as Black's Law Dictionary to mean "to prevent or prohibit, to impede, to obstruct, to forbid ", whereas the term disqualification ' is defined in both referred Dictionaries in the manner that "the act of disqualifying or the state of being disqualified " and "something that incapacitates, disables, or makes one ineligible " respectively and the term disqualify ' is defined in Rafiq's Law Dictionary to mean that "to make unfit or ineligible, pronounce someone ineligible for an office or activity because of an offence or infringement ".
Keeping in view the above, there is no other possible view except to hold that "bar" contained in Section 28 of The Punjab Local Government Act, 2013 cannot be equated with "disqualification" within the meaning of Article 63(1)(p) of The Constitution of the Islamic Republic of Pakistan, 1973.
4. It is further a fact to be noted that in view of the provisions of Article 143 of The Constitution of the Islamic Republic of Pakistan, 1973, if any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly , shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy , be void.
Here-in the present case, a "bar" is provided as against dual membership for Local Government office holders through a Provincial Legislation, which has no prevailing effect upon the Federal Legislation i.e. The Elections Act, 2017 and also our supreme law i.e. The Constitution of the Islamic Republic of Pakistan, 1973.
5. It is also added that the office holders in Local Governments in Punjab are being discriminated against with the similarly placed office holders of Local Governments in all other provinces, as no such barring clause is provided in Local Government Laws of any province other than Punjab and as such, this treatment is discriminatory and violative to the provisions of Article 25 of the Constitution.
6. It is interesting to note that although a bar is placed upon the candidature of a Mayor , Deputy Mayor , Chairman or Vice Chairman to the National or Provincial Assemblies in the manner that they cannot contest election for any other political office without first resigning from their office, but at the same time, in view of Section 28(2) of the said Act, ordinary members of the same Local Government may contest election for any other political office without resigning from the membership of the Local Government, but such member shall not simultaneously hold more than one office and in view of sub-section (3), the seat as member of the Local Government shall become vacant, if is elected to any other political of fice.
The same arrangement can be provided in case of Mayor , Deputy Mayor , Chairman or Vice Chairman. The Election Commission of Pakistan may look into the possibility of suspension of offices of such office holders in Local Governments after once the notific ation for general elections for Assemblies is issued just in order to avoid the influence possibly to be exerted by the sitting office holders, who at the same time would be participating in the elections of Assemblies in the same constituency , where they are holding the of fices in Local Government.
7. The elections scheduled for 25.07.2018 are to be held under the provisions of The Elections Act, 2017 read with The Constitution of the Islamic Republic of Pakistan, 1973, which contain no disqualification clause for the existing office holders in Local Government in Province of Punjab. Thus, the findings arrived at by the Returning Officers, whereby nomination papers of such office holders were rejected on the touchstone of Section 28 of The Punjab Local Government Act, 2013 are not sustainable and the same are set aside. Resultantly , by allowing present Election Appeal, as also Election Appeals No.17 and 35 of 2018, it is held that the provisions of Section 28 of The Punjab Local Government Act, 2013 would have no effect upon qualification of the candidates for National or Provincial Assemblies, even if they are sitting office holders in Local Government, whereas the Election Appeals No.46 and 50 of 2018 filed against acceptance of nomination papers of such candidates are dismissed .
8. Possibility cannot be ruled out that office holders in other parts of Province are also confronted with the question, which has been decided through this judgment, therefore, this judgment is directed to be treated as a judgment in rem.
IBAD-UR-REHMAN LODHI J.:- For the reasons recorded in my sepa rate judgment of even date passed in connected Election Appeal No.06 of 2018 titled Al-Haaj Azhar Iqbal Satti versus Returning Officer and another , the present Election Appeal stands allowed .
IBAD-UR-REHMAN LODHI J.:- For the reasons recorded in my sepa rate judgment of even date passed in connected Election Appeal No.06 of 2018 titled Al-Haaj Azhar Iqbal Satti versus Returning Officer and another , the present Election Appeal stands allowed .
IBAD-UR-REHMAN LODHI J.:- For the reasons recorded in my sepa rate judgment of even date passed in connected Election Appeal No.06 of 2018 titled Al-Haaj Azhar Iqbal Satti versus Returning Officer and another , the present Election Appeal stands dismissed .
Civil Miscellaneous No.02 of 2018 .
The documents mentioned in the applicat ion be retained on record subject to all just and legal exceptions. This civil miscellaneous application stands allowed .
Civil Miscellaneous No.03 of 2018 .
2. Dispensation sought for is allowed, subject to all just and legal exceptions. This civil miscellaneous application stands disposed of .
IBAD-UR-REHMAN LODHI J.:- For the reasons recorded in my sepa rate judgment of even date passed in connected Election Appeal No.06 of 2018 titled Al-Haaj Azhar Iqbal Satti versus Returning Officer and another , the present Election Appeal stands dismissed .