MIRZA VIQAS RAUF , J.----This single judgment shall govern instant petition (Writ Petition No.2543 of 2021) and Writ Petition No.2542 of 2021 as in the former annulment of order dated 06th August, 2021 passed by respondent No.1 is solicited whereas in the latter order dated 11th August, 2021 passed by respondent No.2 has been challenged, which stems from the proceedings conducted in terms of order under challenge in the former petition.
2. Facts in brief necessary for adjudication of instant petition are that Malik Abdul Rauf, respondent No.3 (hereinafter referred as "respondent ") who is petitioner in the connected petition filed his nomination papers to contest election from Ward No.6 Cantonm ent Board, Rawalpindi on the general seat. The nomination papers were rejected during scrutiny by Returning Officer vi le order dated 03rd August, 2021. Being aggrieved "respondent" preferred an appeal before respondent No.1, which was accepted through order dated 06th August, 2021, impugned herein.
3. In the connected petition grievance of "respondent" is that after passing of order dated 06th August, 2021 when he approached the District Election Commissioner , Rawalpindi he issued vote certificate showing his vote at serial No.753, electoral block code No.1110601 10 falling in Ward No.6. He then submitted vote certificate to Returning Officer with the request to accept his nomination papers and to allow him to contes t election. It is his grievance that by way of order dated 1 1th August, 2021 he has been disallowed to contest the election.
4. Mr. Haseeb Shakoor Paracha, Advocate learned counsel for the Electio n Commission submitted that "respondent" submitted his nomination papers on the prescribed form for contesting election as member of Cantonment Board on general seat for Ward No.6. He added. that in the process of scrutiny it was found that vote of "respondent" is not in the electoral roll of said ward, so his nomination papers were rejected by the Returning.
Officer and rightly so. Emphasized that in appeal the Appellate Authority proceeded to allow the same through impugned order and directed "respondent" to approach the office of the Election Commission, who shall redress his grievance by restoring his vote in the original ward whereafter his nomination papers shall be scrutinized by the Returning Officer. Learned counsel maintained that such a direction cannot be passed and the Appellate Authority travelled beyond its jurisdiction. It is contended with vehemence that "respondent" being not a registered voter cannot be allowed to contest election of Ward No.6. In order to supplement his contentions, learned counsel placed reliance on Nadeem Shafi v . Tariq Shuja Butt and others ( PLD 2016 SC 944 ).
5. Conversely , learned counsel for "respondent" submitted that "respondent" is resident of Ward No.6 and he was eligible to contest the election from the same ward. It is contended that "responden t" has been knocked out on the basis of technicality by the Returning Officer and the appeal was rightly accepted. Learned counsel submitted that the petitioner is precluded to call in question vires of the order as certain steps have already been taken by the Election Commission in pursuance thereof.
6. After having heard learned counsel for the parties at considerable length, I have perused the record.
7. Through Notification No.F.7(2)/2021-LG E-C dated. 09th July, 2021 Election Commission of Pakistan issued the schedule for election to fill the general seats in wards of 42 Cantonment Boards including Cantonment Board, Rawalpindi. In order to contest the election of member of Cantonment Board , Rawalpindi on general seat, "respondent" submitted his nomination papers in terms of Rule 17(2) of the Cantonments Local Government (Election) Rules, 2015 (hereinafter referred as "Rules, 2015") for Ward No.6. As per schedule notified by the Election Commission of Pakistan scrutiny of nomination papers and publication of valid names of candidates was to be made by the Returning Officer we.f. 31st July, 2021 to 03rd August, 2021. Admittedly name of "respondent" was figuring in the electoral roll of Ward No.7 having block Code No.111070221 which was mentioned by the "respondent" in his nomination papers. As the "respondent" was not a registered voter in Ward No.6, so his nomination papers were rejected on account of non-fulfillment of one of the qualifications enumerated in Section 60 of the Cantonments Ordinance, 2002 (hereinafter referred as "Ordinance, 2002") which requires that a person must be enrolled as a voter in the electoral roll of the relevant ward to qualify to be elected as member of the Cantonment Board. Feeling aggrieved "respondent" preferred an appeal before the Appellate Authority constituted for the said purpose questioning the order of the Returning Officer. The appeal was accepted by way of order dated .06th August, 2021. The relevant extract from the same is reproduced below for ready reference and convenience :- "There is no cavil that to caste vote or contest the election is guaranteed/basic right of every citizen of this country and the sole restriction is that one should not be dual enrolled in different areas at the same time. For the purpose, he is entitled to be enrolled as voter in an electoral area at the place of his temporary or permanent address in CNIC issued by NADRA besides a person in the service of state may get him enrolled as well as, his family in the area wherein he temporarily resides for the performance of his job. From the available record, it appears that the vote of the appellant has been shifted/transferred from Ward No.6 to Ward No.7 without his notice and knowledge which is against the principle of natural justice.
In view of above, while allowing this appeal, the impugned order dated 03.08.2021 passed by Returning Officer, Ward No.6 to 10, Military Estate Officer, Rawalpindi Circle, Rawalpindi is set aside. The appellant is directed to approach office of the Election Commiss ion who shall redress grievance of the appellant by restoring vote of the appellant at its original Block/W ard and thereafter his nomination papers shall be scrutinized by the Returning Officer."
(Underlining supplied for emphasis)
It is clearly apparent from the order of the Appellate Authority itself that vote of "respondent" was registered in Ward No.7 at the relevant time.
8. Section 60 of "Ordinance, 2002" lays down the qualifications for candidates and elected members, which reads as under:- "60. Qualifications for candidates and elected members. (1) A person shall qualify to be elected or to be chosen or to hold an elective of fice or membership of a local government, if he-
(a) is a citizen of Pakistan;
(b) is at least twenty five years of age:
(c) is enrolled as a voter in the electoral roll of the relevant ward and, in case for reserved seats, in any electoral area of that Board;
(d) he is sagacious, righteous, non-proflig ate, honest and ameen, there being no declaration to the contrary by a court of law;
(f) has not been declared by a competent court to be of unsound mind;
(g) is not in the service of the Federal Government, a Provincial Government or a local government or, any statutory body or a body which is controll ed by any such Government or, in which any of such 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 such service, a period of not less than six months has elapsed since his retirement;
(h) has not been dismissed, removed or compulsorily retired from. public service on grounds of moral turpitude;
(i) does not possess assets which are inconsistent with his declaration of assets or justifiable means, whether held in his own name or of the dependents or any other person or corporate body in whose name assets are held in trust or under any other formal or informa l arrangement whereby the de-facto control of such assets including their sale, transfer or pecuniary interest, is retained by him;
(j) has not been adjudged a willful defaul ter of any tax or other financial dues owed to the Federal Government, a Provincial Government, or a local government or any financial institution, including utility bills outstanding for six months or more;
(I) has not been sentenced to imprisonment for more than two years for an offence under any law and or, a period of not less than five years has elapsed since his release; and in case of a member or a holder of a public office, has not been sentenced to imprisonment;
(m) has not failed to file the required return of election expenses or is not convicted for exceeding the limits of elections expenses prescribed under the electoral laws;
(n) has not been declared an un-discharged insolvent by any court;
(o) does not engage in any transaction involving pecuniary interest with the Board of which he is a member;
(p) does not absent himself without reasonable cause from three consecutive meetings of the Board of which he is a member; provided that a member shall not be disqualified if the absence was necessitated by a national emergency or force majeure;
(r) has not been and is not involved, in activities prejudicial to the ideology , interest , security , unity, solidarity , peace and integrity of Pakistan and its people and the good order and harmony of society;
(s) has not used directly or indirectly for his election the platform, flag, symbol, affiliation and financial or material resources or support of a political, religious, ethnic or sectarian party , formation or organization; or
(t) takes oath within the specified period. (2) Whoever--
(a) is found by the Election Commission to have contravened the provisions of subsection (1) shall stand disqualified from being a candidate for election to a Cantonment Board for a period of four years; or
(b) having been elected as a member of a Cantonment Board or being a holder of an elective office of a Cantonment Board is found by the Election Commission to have contravened the provisions of subsection (1) shall cease forthwith to be an elected member or to hold the office of such member and stand disqualified from being a candidate for election to a Cantonment Board for a period of four years."
(Underlining supplied for emphasis)
It is thus manifestly clear from the above that a person can only qualify to be elected or to be chosen or to hold an elective office or membership of a local government if he is enrolled as a voter in the electoral roll of the relevant ward. As the "respondent" was not enrolled as voter in the Ward No.6 so he was clearly suffering with disqualification. By virtue of Rule 19(4) of "Rules, 2015" the Returning Officer is empowered to reject nomination papers if he is satisfied that a candidate is not qualified to be elected as a member .
9. The grievance canvassed by the "respondent" is that he is resident of Ward No.6 but his vote has been shifted to Ward No.7 without his knowledge. If this is the position then he should have resorted to the procedure contemplated under the law for the correction of electoral rolls. Chapter IV of the Elections Act, 2017 deals with the electoral rolls and provides a self-explan atory mechanism for preparation and correction of electoral rolls. The "respondent" never resorted to the said procedure till submission of his nomination papers. In terms of Section 39 of the Act ibid certain restrictions have been placed on the revision, correction and transfer of the vote from one electoral area to another . Preparation and correction of electoral roll undoubtedly a time bound process. The "respondent" is in fact asking the Court to put the cart before the horse.
10. As the "respondent" was suffering with a defect of substantial nature, so he cannot be allowed to contest the election from Ward No.6. It divulges from the impugned order that the Appellate Authority has adopted a weird and queer procedure and despite observing that "respondent" is not registered voter in Ward No.6 directed the Election Commission of Pakistan for shifting/transfer of his vote from Ward No.7 to- Ward No.6 and re-scrutiny of his nomination papers thereafter . This was clearly beyond the mandate and scope of the Appellate Authority . Guidance in this respect, if needed, can be sought from Nadeem Shaft v. Tariq Shuja Butt and others (PLD 2016 Supreme Court 944). The relevant extract from the said judgment is reproduced below :- "7. The nomination form II(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 # such and such of electoral roll for the electoral area of ward # 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 altoge ther 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 MLD 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 becaus e 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 the 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 ."
11. So far contention of learned counsel for the "respondent" that in pursuance to the impugned order vote certificate has been issued by the District Election Commissioner , Rawalpindi, suffice to observe that this - by itself is not sufficient to operate as an estoppel against the petitioner to call in question the vires of impugned order . Even otherwise there is 'no estoppel against law. Needless to add that when an order is patently illegal and unlawful it cannot be allowed to perpetuate.
12. The nutshell of above discussion is that impugned order dated 06th August, 2021 was passed in oblivion of law and as such it is illegal and unlawful, consequently same is set aside while accepting the instant petition and dismissing the connected petition (W rit Petition No.2542) with no order as to costs.