' INAYAT ELAHI KHAN, J.-Muhammad Afsar Khan (petitioner) by this writ petition, calls in question the validity of the election of Muhammad Amin Tareen (respondent No. 1) to a seat from Ward No. 1, Municipal Committee, Haripur. The nomination papers of respondent No. 1 were _filed on 12-9-1979, the polling took place on 25-9-1979 and he was declared elected by Notification No, 882, dated 28- 9-1979. The petitioner alleges that a piece of land measuring 2 Karats bearing Khasra No, 826 was obtained on lease by respondent No. 1 from the Municipal Committee/Town Committee, Haripur by lease deed executed by him on 14-2 -1978 for a period of one year. On the expiry of the aforesaid period he obtained renewal of the lease in his favour for a further period of 3 years with effect from 13-2-1979 to 12-2-1982. Therefore, for the reason that on the date of the filing of the nomination papers as also on the date of the election, the respondent was having a pecuniary interest in the affairs of the Municipal Committee, he stood disqualified from being elected to and becoming a member of the Municipal Committee. The learned counsel for the petitioner by relying on section 28(f) of the N.-W. F. P. Local Government Ordinance, 1979 (Ordinance IV of 1979), which is to the following effect :- "Section 28( f ).-A person shall be disqualified to be a candidate or a member of a Local Council if he is under contract for work to be done or goods to be supplied to the Local Council concerned or has otherwise any pecuniary interests in its affairs", ' argued that by virtue of the aforesaid lease in his favour, respondent No. 1 was disqualified for being a candidate at the election as he was having a pecuniary interest in the affairs of the Municipal Committee and thus his case fell within the mischief of section 28( f ). On the other hand the learned counsel for respondent No. 1 urged that no doubt he was a lessee of the land in question for one year commencing from 14-2-1978 on payment of Rs, 40 as lease money but subsequently on the expiry of the lease his application for renewal of the lease was never approved and the possession of the land was taken from him. In this regard he referred to the lease deed dated 4-3-1979 (Annexure F) on the file which appears to have been drawn for 3 years from 13-2- 1979 to 12-2-1982 and bears the signatures of respondent No. 1 but it does not bear the signature of the Administrator, Town Committee, Haripur though his seal was affixed thereon. Similarly on the application of respondent No. 1 referred to above, the Administrator instead of according the approval has simply written the word "seen". In these circumstances the case of respondent No. 1 is that on the expiry of the lease of one year commencing from 14-2-1978 he no more remained a lessee of the land. The learned counsel for the Municipal Committee (respondent No, 3) argued that during the relevant period no lease was created by the Municipal Committee in favour of respondent No. 1 as the lease deed (Annexure F) did not bear the signature of the Administrator and by merely writing the words "seen" on the application of respondent No. 1, no valid lease was created in his favour. Moreover he urged that mandatory provisions of law for the execution of contracts by Municipal Committee were not followed and hence there was no completed contract between the parties respecting the land in question. He referred to section 26 of the Municipal Administration Ordinance, 1960 and rules 3, 4 and 5 (1) (2) of the West Pakistan Municipal Committee (Contract) Rules, 1960 where under all contracts made by or on behalf of a Municipal Committee were to be executed in writing in the name of the Municipal Committee in the manner explained in the rules, and were also required to be reported to the Municipal Committee by the Chairman at the meeting next following the execution of the contract. An agreement by or on behalf of the Municipal Committee was required to be signed by its Chairman which shall also bear the seal of the Municipal Committee. Sub-rule (3) of rule 5 also provides that all agreements shall be written on a stamped paper of the appropriate value and shall, where necessary, be registered if so required under the relevant law. The learned counsel for respondent No, 3 relied on Municipal Committee, Bannu v. Munawar Khan (1) wherein it was held that the effect of the said provisions of law was that in order to be binding, a contract by or on behalf of a Municipal Committee shall require to be executed in the manner prescribed in the law and the rules and where the contract was concluded not in conformity with such provisions, or if such provisions are not duly complied with in arriving at a contract, then such contract was not binding on the Municipal Committee concerned and consequently, being void could not be enforced against it. In the case of Dr. Fazal Din v. Municipal Committee Lyallpur (2) it was held that where an agreement of lease of land by a Municipal {FOONOTE}}
(1) PLD 1982 Pesh. 61 (2) PLD 1956 (W. P.) Lab. 916 ' Committee was reduced to writing but did not bear the seal of the Committee was void and not binding on either party to the lease. In the case in hand the lease deed although bears the seal of the Town Committee but it does not bear the signature of the Administrator and moreover the lease period being for 3 years, it was compulsorily registrable under section 17 (1) (d) of the Registration Act, 1908. In view of the above submissions of the learned counsel it appears that there was no valid lease created in favour of respondent No. 1 for a period of 3 years commencing from 13-2-1979 to 12-2-1982 as alleged by the petitioner. The learned counsel for the petitioner referred to certain photostat receipts of payment of lease money by respondent No 1 to the Municipal Committee but the genuineness of these receipts has been vehemently denied by the learned counsel for the respondents who stated that since respondent No. 1 was dispossessed of the demised land on the expiry of one year of the lease, and the lease having not been renewed in his favour, the question of depositing the lease money would not arise. Although the receipts bear the name of respondent No. 1 but it is not clear who has deposited the lease money with the Municipal Committee for the relevant period and thus these receipts would carry no weight particularly in view of the submissions of the learned counsel for the Municipal Committee that the lease in favour of respondent No. 1 was never renewed after its expiry on 14th February, 1978.
2. In view of the fact that no valid lease in favour of respondent No. 1 having been established we do not feel called upon to decide the question whether the conduct of respondent No. 1 in obtaining the lease of the land, amounts to his having a pecuniary interest in the affairs of the Municipal Committee.
3. The election of respondent No. 1 is also not open to challenge by a writ petition for the reason that section 39-A of the N.-W. F. P. Local Government Ordinance, 1979 provides that no election under this Ordinance shall be called in question except by an Election Petition made by a candidate for that election. Under section 39-B the Election Petitions are to be determined by the Election Tribunal constituted for the purpose by the Government. The C writ petitioner was not a candidate at the election and he has filed the writ petition in his capacity of being a voter of the Ward concerned.
Thus he has no locus standi to challenge the election of respondent No. 1 which could only be challenged by an opposing-candidate and that also by filing an Election Petition before the Election Tribunal. In Hamida Begun v. Provincial Election Authority (1) with reference to section 58 of the Electoral College Act, 1964 (Act 1V of 1964), it was held that the voters were not competent to call in question the election of a member by filing a writ petition as it could only be challenged by an opposing candidate by filing an Election Petition before the concerned authority.
4. The learned counsel for the petitioner then argued that the writ petition, being a proceeding in the nature of quo warranto, could be filed against respondent No. 1 to show under what authority of law he was discharging the duties and functions in respect of a public office. However, assuming that respondent No. 1 was holding a valid lease from the Municipal Committee at the time of his nomination and subsequent election the fact remains that with the expiry of the lease on 12-2-1982, the alleged disqualification was no more existing when the writ petition was filed in the Court on 3- 6-1982. For claiming a relief by way of quo warranto the alleged dis- qualification must be a continuing one which debars a person not only from {FOONOTE}}
(1) P L P 1966 (W. P.) Lal. 560) ' being elected to an office but also from holding that office. In Lt.-Col. Farzand Ali v. Province of West Pakistan (1) it was observed that :- "An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing."
' Similarly in Muhammad Ramzan v. Chiragh Din (2) it was held that a writ in the nature of quo warranto can only be filed if a person is disqualified to hold a public office. The disqualification in the cited case was alleged op the sole ground that the candidature of the respondent being invalid he could not be regarded as having been validly elected. However, it was held that under the law it is only the Election Tribunal which can give a finding that election of a returned candidate was invalid. In the case in hand the disqualification of respondent No, I, if any, admittedly came to an end on 12-2-1982 with the expiry of alleged lease. Thus the respondent at the time of fifing the writ petition was not suffering from the said disqualification of being a lessee of the Municipal Committee. The contention that at the time of the election the respondent was suffering from the said disqualification would be to no avail to the petitioner because, as stated above, he could not challenge the election of respondent No. 1 by filing a writ petition which remedy is only available to an opposing candidate at the election and that too by filing an Election Petition before the Election Tribunal.
5. For the aforesaid reasons, the writ petition being without any merit is hereby dismissed with no order as to costs.
(1) PLD 1970 SC 98 (2) 1981 CLC 1733 {FOONOTE}}