SOHAIL NASIR J In pursuance of the provisions of Sub-s ection (1) of Section 58 of the Cantonme nt Ordinance (CXXXVII of 2002) {Ordinance} read with Rule 77 of the Cantonment Local Government (Election) Rules, 2015 (Rules) and all other powers enabling in this behalf, the Election Commission of Pakistan (ECP) had issued the Calendar of Events (programme) through a notification dated 01.10.2021 for the Election to fill special interest seats (reserved seats) in Cantonment Boards (Boards) and called upon the directly elected members of the Boards to elect against the relevant seats in the Boards .
2. Noman Masood (petitioner) and Waqas Ahmad/ respondent No.3 (contesting respondent) also submitted their nomination papers for the special seat of 'Worker ' before the Returning Officer, Multan (respondent No.2) .
Contesting respondent also filed objections on the nomination of petitioner with regard to his qualification as 'Worker ' which were overruled vide an order dated 07.10.2021 passed by the learned Returning Officer Multan and the nomination papers were accepted.
3. Contesting respondent feeling aggrieved from the Order of Returning Officer approached the learned District and Sessions Judge/Appellate Authority , Multan through an appeal preferred on 11.10.2021 which after notice to petitioner was allowed vide Judgment dated 12.10.2021 and petitioner was disqua lified to contest the Election for the reason that he did not fall within the definition of 'Worker '.
4. Being dissatisfied from the verdict of learned Appellate Authority now petitioner has approached this Court through the instant W rit Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. It is important to add here that vide an order dated 20.10.2021 passed by this Court, petitioner was provisionally allowed to contest the Election, however , notification was ordered to be withheld till the final outcome of this writ petition while formulating the following questions: -1 i) Whether an appeal can be filed after a specific date (09.10.2021) described through a notification by the Election Commission of Pakistan? ii) If above proposition is answered in affirmative, whether the provisions of Limitation Act, 1908, shall be applicable for the purpose of condonation of delay? iii) If Limitation Act, 1908 is found applicable and delay is condoned, whether petitioner falls within the definition of 'WORKER' as provided under Rule 2(XL) of the Cantonment Boards Local Elections Rules 2015?
6. Learned counsel for petitioner contends that the process of Election is time bound hence cannot be compromised at any cost because in such eventuality the entire programme shall be disturbed and will affect the ultimate objectives. He further adds that last date for filing the appeal was 09.10.2021 whereas contesting respondent approached the learned Appellate Authority on 11.10.2021 who although filed an application under Section 5 of the Limitation Act (IX of 1908) {Act} but in terms of Section 29 of the Act the provisions of Section 5 was not applicable so the learned Appellate Authority was vested with no powers to condone the delay. He finally maintains that while accepting the appeal the learned Appellate Authority did not attend this question seriously and exceeded its jurisdiction.
7. On the other hand, learned counsel for contesting respondent argued that the he had applied for issuance of certified copies of all the documents and order which were available on 11.10.2021 hence he was not at fault. He further argued that the legal disability was in the way of contesting respondent and for that reason he approached the learned Appellate Authority on 11.10.2021 and in these circumstances the provisions of Section 5 of the Act was applicable therefore the learned Appellate Authority rightly condoned the delay and rejected the nomination papers of petitioner .
8. Mr. Muhammad Danish UDC on behalf of Returning Officer present in Court states that on 08.10.2021 contesting respondent had moved an application for issuance of certified copies which were supplied to him on the same day. He also added that later on contesting respondent filed another application on 11.10.2021 and pursuant to direction of Secretary Local Government the copies were again issued to him. However , he admits that in this context no record is to be maintained except the applications moved by the candidates.
9. HEARD.
10. This is an admitted fact that on the strength of Notification dated 01.10.2021 (ibid) ECP had issued the programme of Election that included the last date for filing of appeal against acceptance/rejection of nomination papers as 09.10.2021. The word 'programme' is significant that is actions or events or a series of actions or events planned to be done to achieve an objective at a particular time therefore this proposition cannot be denied that the process of Election 'stage to stage' and 'phase to phase' is time bound and there can be no compromise at all, unless the Schedule/programme is revised by the ECP. It means that the contesting respondent was supposed to approach the learned Appellate Autho rity by or before the last date. The conduct of contesting respondent is quite relevant in this context who has taken the plea that he applied for issuance of certified copies of nomination papers which were available to him on 11.10.2021 so he was not at fault for delay in filing the appeal. The original record produced by Mr. Muhammad Danish reveals that on 08.10.2021 contesting respondent had moved an application to Returning Officer asking the provision of certified copies of relevant documents for the purpose of filing of appeal. He again submitted similar application on 11.10.2021 where he maintained that he was in need of the relevant documents and on last two days the office was closed so he again asked for issuance of certified copies. It will not be irrelevant to refer here that the alleged fact that the office was closed for two days is absolutely incorrect for the reason that on 08.10.2021 it was Friday and on 09.10.2021 it was Saturday . Even if it is presumed that there was public holiday on both these dates even then for the purpose of Election activities the offices were open as evident from Note-III of the Notification issued by ECP and it is as under:- "All electoral activities mentioned in the aforesaid programme except for those for which time is fixed in the Rules, shall be undertaken during office hours (08:00 A.M. to 05:00 P.M.) and the said timing will also be followed on public holidays fixed for any electoral activity of the programme"
11. It was in the knowledge of contesting respondent that the last date for filling of appeal was 09.10.2021. He is not an ordinary man but a political worke r and contesting the Election with all seriousness. He was aware of his2 rights so if despite moving the application on 08.10.2021 the certified copies were not issued to him, he was under obligation to raise a voice before the Returning Officer or before the learned Appellate Authority . Therefore, silence by him is a serious question mark on his credibility .
12. At least what he could do was to prefer the appeal within the time before the learned Appellate Authority by taking an exception that the certified copies of relevant documents have not been provided to him so he was compelled to file the same without the said papers. Even here he has been found under gross negligence.
13. In the given circumstances, version of Muhammad Danish UDC seems to be convincing and plausible that on 08.10.2021 pursuant to application submitted by contesting respondent the certified copies of all the documents were supplied to him. Therefore his appeal could not be entertained on 11.10.2021 and if entertained was liable to be dismissed straightaway being time barred.
14. There is another dimension of the proposition that appointment of the Appellate Authority by ECP is for a specific purpose and for a specific period so when an exact date for any event is notified by ECP, the candidate must approach the concerned Authority by or before that date. It appears that for this reason Rule 19(6) of the Rules does not require condition precedent to attach the certified copies while filing the appeal.
Hence in a case of hardship or exigency while filing the appeal a candidate can draw the attention of the Appellate Authority that the copies despite moving the application have not been supplied to him/her.
15. It is an admitted fact that the contesting respondent along with his appeal had also filed an application under Section 5 of the Act for condonation of delay which was attended in paragraph No. 6 of the Judgment as under:- "The office note about limitation period is not material for the reason that as per certified copies, the same were applied on 08.10.2021 and were issued on 1 1.10.2021, on which date the appeal was filed"
16. This means that either the learned Appellate Authority has exercised the powers under Section 5 of the Act or declared the appeal within time.
17. In view of discussions made earlier it has already been declared that the copies were supplied to contesting respondent on 08.10.2021 therefore appeal filed by him was after the notified date (09.10.2021) and was liable to be dismissed straightaway . In this backg round, it appears that the learned Appellate Authority had condoned the delay under Section 5 of the Act.
18. So the legal proposition before this Court is that whether the provisions of Section 5 of the Act were applicable and the learned Appellate Authority was within its powers to use the same for the purpose of condonation of delay?
19. The 'Ordinance' is a Special Law. Election programme was issued through a notification (ibid) by the ECP in pursuant to the provisions of Sub-Section (1) of Section 58 of the 'Ordinance' read with Rule 77 of the 'Rules' .
Therefore, the limitation for filing of appeal on or before 09.10.2021 will be deemed to be provided under the provisions of the 'Ordinance' and the 'Rules' . To resolve this question, Section 29 of the Act is quite relevant and is as under: - "29. Savings .(1) Nothing in this Act shall affect Section 25 of the Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed thereto by the First Schedule, the provisions of Section 3 shall apply , as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law--
(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so for as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply .
(3) Nothing in this Act shall apply to suits under the Divorce Act, 1869 (IV of 1869).
(4) Sections 26 and 27 and the definition of "Easement" in Section 2 shall not apply to cases arising in territories to which the Easement Act, 1882, may for the time being extend" (Emphasized applied)
20. Plain reading of the above provisions makes it clear that in case of contrast of period of limitation provided under the Schedule of the Act and Special Law, the one prescribed under the Special Law has to prevail. Clause
(a) of Section 29(2) has made it absolute that which of the provisions of the Act (if not excluded by Special Law)3 shall apply and immediately thereafter under clause (b) there is the exclusion of application of remaining provisions of the Act which certainly includes Section 5 also.
21. The similar question came up before the apex Court in Ali Muhammad' s case . In that matter second appeals under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 were filed after the prescribed period of limitation that was 15 days and it was held that: - "We do not find any force in these petitions. The time allowed for an appeal under subsection (4) of section 15 to the High Court, under the Ordinance, is 30 days, whereas under Article 156 of the Limitation Act it is 90 days. The time allowed for filing the appeal by the special law i.e., West Pakistan Urban Rent Restriction Ordinance, 1959 being different from that given in the Limitation Act, Section 5 stands excluded by virtue of section 29(2) of the Limitation Act, which permits the applicat ion of only, sections 4, 9 to 18 and 22 in such situations. The same view has also been taken by us in Abdul Ghaf far and others v . Mst. Mumtaz (PLD1982 SC 88) "
22. Above view was also followed in Protein and Fat International , Allah Dino and Messers S. Malik Traders cases.
23. The only logical conclusion of the discussions made above is that the delay in filing of appeal by contesting respondent could not be condoned and appeal filed by him was liable to be dismissed on this ground alone. Hence this writ petition is allowed . Impugned order is set aside . Appeal filed by contesting respondent is dismissed being time barred.
24. As appeal of contesting respondent was time barred and still contesting respondent has the remedy of filing the Election Petition before the Election Tribunal so I have deliberately avoided giving any finding on the qualification of petitioner whether he falls within the definition of 'Worker ' or not? However it is made clear that if such option is availed by contesting respondent, the Election Petition shall be decided on its own merits by the Election Tribunal without being influenced from this Judgment. 'Worker" means a person directly engaged in work or is dependent on personal labour for subsistence and includes a worker as defined in the Industrial Laws (See: Section 2(1) (XL) of the Rules and 2(LXIII) of the Ordinance) Upper Division Clerk "Appellate authority" means an appellate authority appointed by the Commission for the purpose of deciding appeals under these rules (Rule 2{ii} of the Rules) Ali Muhammad & another vs. Fazal Hussain & others 1983 SCMR 1239 Protein & Fat International (PVT) Limited through Chief Executive & 2 others vs. Capital Assets Leasing Corporation Limited through Manager 2005 CLD Allah Dino & another vs. Muhammad Shah & others 2001 SCMR 286 Messers S. Malik T raders & another vs. Saudi Pak Leasing Company L TD. 2009 CLD 171 See Chapter VII and Rule 2(XII) of the Rules Rule 2(XIII) of the Rules