' ALLY MADAD SHAH, J.--This Constitutional Petition under Article 9 of the Provincial Constitution Order, 1981 is directed against the "decision" of special Judge, Anti-Corruption/Election Tribunal, Sukkur in Election Petition No. 103/83, pronounced on 22-5-1984.
2. Facts in the background, briefly stated, are that the petitioner and the respondents Nos. 1, 2, 3 and 4 were prospective candidates for the local Council Election for Unit No. 8 of Municipal Committee Khairpur, held in September/October, 1983. The election programme was notified by the Provincial Election Authority, Sind, by notification dated 24-7-1983. It was to commence from 30-7-1983 by splitting up of eldectoral rolls and terminate on 2-10-1983 by declaration of results.
' The election programme was revised by notification, dated 26th September, 1983 whereby the elections process was to terminate on 4-10-1983. The petitioner and the respondents Nos. 1, 2, 3 and 4 filed nomination papers, in accordance with election programme, before the Returning Officer/First Additional Sessions Judge, Khairpur. The nominatibn papers were scrutinized on 22-8- 1983. The nomination paper filed by the respondent No. 1 (Zafar Iqbal) was objected to by one Ghulam Sarwar on the ground that he had remained as a member of Pakistan Peoples Party and also that he had remained a contractor of the Municipal Committee, Khairpur. The objection was overruled and the nomination papers of all the candidates, including the respondent No. 1, were accepted by the Returning Officer. The objector Ghulam Sarwar preferred an appeal under sub- rule (5) of rule 19 of Sind Local Council (Election) Rules, 1979, before the Commissioner Sukkur/ Appellate Authority against the acceptance of the nomination paper of the respondent No.
1. The same grounds raised before the Returning Officer that the respondent No. 1 had remained a member of the Pakistan Peoples Party and he was also a contractor of the Municipal Committee, and an additional ground that the respondent No. 1 had pecuniary interest in the affairs of Khairpur Municipality were agitated in appeal. The learned Commissioner/Appellant Authority overruled the first two objections which were raised before the Returning Officer. As regards the 3rd objection regarding the alleged pecuniary interest of the respondent No. 1 in the affairs of the Municipal Committee, the learned Appellate Authority was indecisive and he deferred decision thereon and referred the matter to the Provincial Election Authority for advice. However, he rejected the appeal by passing the following order:- "I reject the appeal but order that nomination paper of respondent No. 2 be accepted on provisional basis. In the meantime the issue will be referred to the Provincial Election Authority for legal advice. In case the legal advice is in keeping with the appellant's view point, the nomination paper of respondent No. 2 shall be considered invalid ab initio with its consequences."
' This order was passed on 13-9-1983. Subsequently, the learned Appellate Authority passed following order on 30th September or 1st October, 1983: "(1) The candidature of Mr. Zafar Iqbal for Khairpur Municipal Committee Unit No. 8 was accepted on provisional basis subject to the legal advice to be obtained from Provincial Election Authority, Karachi.
(2) The legal advice has since been received from Provincial Election Authority Sind Karachi vide Letter No. PEAS/15/0/83, dated 26-9-1983 which confirms the contention of appellant.
(3) Under the circumstances the candidature of Mr. Zafar Iqbal for Municipal Committee Unit No. 8 is ordered to be cancelled."
' The polls to the election were held on 2-10-1983 as per revised programme issued by Provincial Election Authority by notification dated 26-9-1983. The respondent No. 1 could not contest the election beacuse of the order of Appellate Authority reproduced above whereby his candidature was cancelled. The petitioner was declared elected.
3. The respondent No. 1 challenged the order of his disqualification in Constitution Petition No. D-133 of 1983 in this Court. The petition was dismissed on 17-11-1983 by the following order: "Mr. Rahman Ali Naqvi Advocate for the petitioner. This petition is directed against the order passed by the respondent No. 5, the Commissioner, Sukkur Division upon an appeal filed by the respondent No. 7, declaring the petitioner disqualified from contesting the election on ground that he was allegedly indebted to the Municipal Committee to the extent of Rs. 450 on account of lease money.
It is the case of the petitioner that factually this amount was almost paid by the petitioner. Since the election has already taken place, we are not inclined to admit this petition and the proper remedy, if any is to file an election petition. The petition is, therefore, dismissed in limine."
4. The respondent No. 1 then filed Election petition, contending that he did not suffer from any disqualification and the cancellation of his candidature by the Appellate Authority was without lawful authority. He also contended that Ghulam Sarwar did not have locus standi as to have objected to the filing of his nomination paper as he was not even a voter from that constituency.
5. The Election Petition was numbered 103 of 1983 and it was referred to the Special Judge, Anti- Corruption/Election Tribunal, Sukkur. The petitioner herein was the respondent No. 1 in the Election Petition. He resisted the petition. He challenged jurisdiction of the Tribunal and questioned maintainability of the petition on the ground that the nomination paper of the petitioner in the Election Petition was finally rejected by the Provincial Election Authority and that decision could not be called in question before the Election Tribunal, as subordinate forum. He also contended that the petitioner in the Election petition was rightly disqualified by the Appellate Authority as he had pecuniary interest in the affairs of Municipal Committee, Khairpur. It was additionally contended before the Election Tribunal that the petitioner therein was not a contesting candidate and he could not prefer Election Petition. It was also urged that notification of the result of his winning the election had been stayed by the Provincial Election Authority at the instance of the petitioner in the election petition and, therefore, election petition was premature.
6. The parties did not adduce oral .evidence but they relied upon documentary evidence. The learned Election Tribunal by its "decision" (order) dated 2-5-1984 repelled the objections raised by the petitioner and held that the cancellation of the candidature of the petitioner therein was without lawful authority and declared the whole election void and ordered fresh election.
6-A. The petitioner has sought in this petition following reliefs:- "(a) That this Honourable Court may be pleased to declare that impugned instructions issued by Election Authority, respondent No. 8 as Annexure 'K' and impugned order passed by respondent No. 7 as Annexure 'J' is illegal, void, ultra vires and inoperative.
(b) That this Honourable Court may be pleased to declare that the petitioner is a returned candidate of Unit No. 8 of Municipal Committee, Khairpur and in consequence thereupon the Election Authority may be directed to notify the name of the, petitioner as a returned candidate.
(c) That this Honourable Court may be pleased to grant injunction restraining the respondent No. 5 from implementing the impugned order passed by respondent No. 7 and be restrained from holding fresh Election of the abovesaid Unit No. 8.
(d) Any other relief which this Honourable Court deem fit according to nature of the case."
7. The learned counsel for the petitioner contended, at the out set, that the Election Petition filed by the respondent No. 1 was incompetent for two reasons firstly, that the respondent No. 1 had not contested the election and his main grievance in the Election Petition that his candidature was illegally cancelled did not amount to an election dispute as to have constituted subject-matter for filing the Election petition and, secondly, that the respondent No. 1 had earlier filed a Constitutional petition against the cancellation of his nomination paper and it was dismissed and same question could not be re-agitated by way of Election Petition. He next contended that the respondent No. 1 was disqualified under the provisions of section 37 of the Sind Local Government Ordinance, 1979 from contesting the election to the Local Council as he was indebted to the Council and he had pecuniary interest into its affairs and his nomination paper was rightly cancelled by the Appellate Authority. He lastly contended that the petitioner was duly elected and there were no grounds for setting aside the election.
8. On the other hand, the learned counsel for the respondent No.1 urged that the cancellation of the candidature of the respondent No.1 by the Commissioner/Appellate Authority was without lawful authority. Elucidating his arguments, he submitted that there was no evidence that the respondent No. 1 was indebted to the Municipality or that he had any pecuniary interest in its affairs and nomination paper was rightly accepted by the Returning Officer and was illegally cancelled by the Appellate Authority. He contended that the Appellate Authority had dismissed the appeal filed against the acceptance of nomination paper by the Returning Officer and he had become functus officio after dismissing the appeal and he could not revise his decisions on obtaining advice from the Provincial Election Authority. According to him, there is no provision under law for seeking advice from the Provincial Election Authority for the purpose of scrutiny of the nomination papers.
He emphatically urged that Ghulam Sarwar who had filed the petition against the nomination paper of the respondent No. 1 was not competent under law to have done so, as he was neither a candidate nor a proposer or a seconder nor an agent or authorized person, and the objections filed by him should have been rejected outright. He, of course, conceded that a Constitutional Petition was filed against the cancellation of the candidature of the respondent No. 1 and it was dismissed, but he contended that the petition was dismissed on technical ground that the election had already been held and the petitioner could seek redress by filing an Election Petition and he did so and the Election Tribunal set aside the election as a whole.
9. The election called in question was held under the Sind Local Government Ordinance, 1979 (hereinafter referred to as the "Ordinance") and the rules made thereunder. The rules are titled as the Sind Local Councils (Election) Rules, 1979 (hereinafter referred to as the "rules"). The election to the Local Councils are held by the Election Authority appointed under the provisions of the Ordinance. General rules relating to the conduct of elections under the Ordinance are contained in Chapter IV of the rules (rules 12 to 48). The elections are held as per programme issued by the Provincial Election Authority as provided under rule 13 of the rules. Programme of the elections is to be issued to Form 1 appended to the rules. It has to begin with the publication of the electoral rolls, whereafter nomination papers are to be invited and their scrutiny is made, revision applications/appeals are filed and decided, names of the candidates have to be exhibited, polls are held and results are announced. Provisions for filing of election petitions are contained in Chapter VII of the rules (rules 65 to 76) under the heading "Election Disputes".
10. The main ground agitated in the petition and reiterated by the learned counsel for the petitioner is that of competency of the Election petition. The objection raised is two-fold; firstly, that the process of the filing and scrutiny of nomination papers precedes actual holding of the election and the respondent No. 1 did not contest the election and rejection of his nomination paper could not be an issue for decision in Election Petition; and, secondly that the respondent No. 1 had filed a Constitutional Petition after the rejection of his nomination paper and it was dismissed and he could not agitate the same question by way of Election Petition. As indicated above, the election process starts with the publication of the electoral rolls followed by the filing of the nomination papers and their scrutiny and it terminates by the announce ment of the results. Obviously, the filing of the nomination papers and their scrutiny constituted essential element of the election process. No doubt, there is a provision under rule 9, sub-rule (5) of the rules for the filing of an appeal against the rejection or acceptance of a nomination paper and finality is attached to the order of the Appellate Authority as provided under sub-rule (8) to rule 19 of the "election" rules, yet the question of rejection or acceptance of a nomination paper does not seem to fall outside the scope of election dispute to be adjudicated upon by the Election Tribunal in the manner laid down under Chapter VII (section 65 to section 76) of the (Election) rules. It is laid down under rule 65 of the rules that no election shall be called in question except by an Election Petition made by a candidate to that election. The term "candidate" is defined in (i) of rule 2 of the rules as "a person proposed as a candidate for or seeking election as a member." Any doubts about the definition of a "candidate" stand dispelled by another term "contesting candidate" defined in clause (ii) of rule 2 of the rules as a "validly nominated candidate who has not withdrawn his candidature". As provided under rule 65 of the rules that an election can be called in question by a candidate, it follows that a candidate whose nomination paper is rejected also can call in question election by way of an Election Petition and he has no other remedy except, of course, invoking constitutional jurisdiction of the High Court. The respondent No. 1 did, no doubt, invoke the constitutional jurisdiction of the High Court calling in question the rejection of his nomination paper but his petition was dismissed on the ground that the election had already been held, and therefore, he could agitate the question before an Election Tribunal. Evidently, the respondent No. 1 could call in question the election which was held by his exclusion from the field by rejection of the nomination paper, and the filing of the Constitution Petition against the rejection of nomination paper by the Appellate Authority did not stand in the way of the respondent No. 1 from raising that question in the Election Petition in view of the order passed by the High Court as mentioned above. It was also argued by the learned counsel for the petitioner that the nomination paper of the respondent No. 1 was cancelled on the basis of advice rendered by the Election Authority and the Election Tribunal, being a subordinate forum, could not sit over the decision taken by the Election Authority. The learned counsel for the respondent No. 1 contended that there is no provision in the Ordinance or the rules made thereunder for seeking opinion of the Election Authority in respect of the scrutiny of the nomination papers and, even otherwise, the advice by the Election Authority was merely an opinion and not a decision. The opposition put up by the learned counsel for the respondent does not seem to be without substance. The procedure for the scrutiny of the nomination papers, is contained in rule 19 of the rules and it is provided in sub-rule (7) thereof, as inserted by the amendment notified on 15th August, 1983, that an appeal against the decision of the Returning Officer on the acceptance or rejection of nomination paper shall be disposed of either summarily or after summary enquiry as the Appellate B Authority may consider necessary; and it is provided under sub-rule of rule 19 of the rules that the appeal shall be disposed of by the date specified in the election programme. It is nowhere provided either in the Ordinance itself or the rules made thereunder that Appellate Authority may seek advice of the Election Authority for disposing of an appeal against rejection of a nomination paper. Accordingly, the plea raised by the learned counsel for the petitioner is not tenable.
12. The decision of the learned Election Tribunal that the Appellate Authority could not cancel the candidature of the respondent No. 1 under law after the dismissal of the appeal against the acceptance of the nomination paper has been assailed on the ground that the decision of the Appellate Authority had attained finality under clause (8) of rule 19 of the rules and it could not be challenged before the Election Tribunal. The learned counsel for the respondent contended that the Appellate Authority had acted beyond its jurisdiction in cancelling the candidature of the respondent No. 1 and that order had materially affected the result .of the election and it could be challenged before the Election Tribunal. It is evident from the events narrated above that the nomination paper of the respondent was accepted by the Returning Officer and appeal filed against its acceptance by the objector Ghulam Sarwar also was dismissed and nothing was left with the Appellate Authority for burdening the candidature of the respondent No. 1 with so-called provisional acceptance. According to the election programme issued by the provisional Election Authority, the appeals had to be heard and disposed of within the specified period. It is not disputed that the candidature of the respondent No. 1 was cancelled much after the date by which the appeals were to be heard and disposed of. There is no provision in the Ordinance for making provisional orders in an appeal. The Appellate Authority had become functus officio after dismissing the appeal against the acceptance of the nomination paper. Of course, the Appellate Authority does have power under sub-rule
(5) of rule 19, as substituted to revise suo motu the decision of the Returning Officer on the scrutiny of the nomination paper under sub-rule (4) of rule 19 of the rules but within the period specified in the election programme for filing and disposing of appeals provided under sub-rule (5) of rule 19 of the election rules. The order of cancellation of the candidature was not passed by the Appellate Authority in its power as the revising authority nor could it be made on a day after expiry of the date set down in the election programme for filing and disposing of appeals. Evidently, the order of the Appellate Authority cancelling the candidature of the respondent No. 1 was passed without authority and the decision of the learned Election Tribunal to that effect is unassailable.
13. As regards the decision of the Election Tribunal in respect the of rejection of the nomination paper of the respondent No. 1 that the respondent No. 1 had no pecuniary interest in the affairs of the Municipal Committee, Khairpur, the learned counsel for the petitioner contended that the respondent No. 1 was indebted to the Municipal Committee, Khairpur and he was deemed to have had pecuniary interest in its affairs and he stood disqualified from contesting the election under section 37 of the Ordinance and he was rightly disqualified by the Appellate Authority. He placed reliance on the cases reported in 1981 CLC 73 and PLD 1966 Kar.
348. On the other hand, the learned counsel for the respondent No. 1 contended that the respondent was not indebted to the Municipal Committee and, if at all he had to pay anything towards the rent of a plot, he could not be deemed to have had pecuniary interest in the Municipal Committee and he was not liable to have been disqualified on that score. He placed reliance on the cases reported in 1981 CLC 1733, 1982 CLC 2111, 1984 CLC 3107 and 1984 CLC 989. It is not disputed that the petitioner was in arrears of Rs. 540 of lease money he had to pay to the Municipal Committee when he filed the nomination paper and it is stated that he cleared the arrears on 5-9- 1983 i.e. after the scrutiny of the nomination papers by the Returning Officer on 22-8-1983. It is laid down under clause (f) of subsection (37) of the Ordinance that a person under contract for work to be done or goods to be supplied to the council or having otherwise any pecuniary interest in its affairs would stand disqualified from being elected as and from being a member of the council.
The expression "pecuniary interest" was considered in a case Muhammad Hassan v. The Election Tribunal Jacobabad and 2 others PLD 1966 Kar. 348, and it was held that a person indebted to a council suffers from the disqualification to contest the election to that council. The same view was enunciated in a case Mahar Ali v. Juma Khan and others reported in 1981 CLC 73. But the pecuniary interest involved in those cases comprised large sums of money payable on account of contract for collection of octroi duty, whereas in this case the respondent No. 1 had to pay few instalments towards lease money in respect of a plot allotted to him and he cleared the arrears as soon as he became conscious of that fact. In our opinion nominal arrears of lease money of an allotted plot or arrears of rent or some Municipal taxes do not constitute pecuniary interest of the allottee or the tax-payer as to entail his disqualification for contesting election to the council. It is also significant to note that the respondent No. 1 was disqualified on this ground by the Commissioner/Appellate Authority after appeal against acceptance of his nomination paper was dismissed. In our view, the respondent No. 1 did not suffer from the disqualification attributed to him.
14. The learned counsel for the petitioner next contended that the Election Petition was filed prematurely as the result of the election had not been published as required under sub-rule (4) of rule 43 of the Election Rules. In this respect, he made reference to sub-rule (2) of rule 65 of the Election Rules which provides that an Election Petition shall be presented to the Election Authority within 60 days of the publication in the official Gazette of the names of the returned candidate. He cited a case Syed Zafar Ahmed Shah v. Khawaja Noor Ahmed Chisti and others 1984 CLC 989, wherein it was held by a Single Judge of Lahore High Court that dispute regarding irregularity in election can be raised before the Election Tribunal after publication of its result in official Gazette and until then the matter lay with the Provincial Election Authority. In the instant case, the publication of the name of the petitioner as the returned candidate is said to have been withheld by the Provincial Election Authority. But the result of the election had been pronounced by the Returning Officer in accordance with the provisions of sub-rule (3) of rule 43 of the Election Rules.
The time limit of 60 days prescribed for filing of an Election Petition from the day of the publication in the official Gazette of the name of returned E candidate does not prohibit filing of an Election Petition before the publication of the results of the election in the official Gazette. As Election Tribunal derives jurisdiction of hearing election petitions from the Election Authority. It is provided under rule 69 of the election rules that the Election Authority shall appoint as many Election Tribunals as may be necessary for trial of Election Petitions. The Election petitions are to be presented to the Election Authority as provided under sub-rule (2) of rule 65 of the election rules and question of its summary dismissal or admission rests with the Election Authority and it is after admission of an Election Petition that it is referred to an Election Tribunal. As such, the Election Authority does not become functus officio after the publication in the official Gazette of the results of the election. The Election Authority has powers, under rule 70 of the election rules, to transfer an Election Petition from one Tribunal to another Tribunal. In our opinion, the demarcation line between the jurisdiction of the Election Authority and Election Tribunal in the matters of Election Petitions does not stand between the publication of the results in the official Gazette and subsequent proceedings. Of course, the Election Authority has no say in the exercise of the jurisdiction by a Tribunal after an Election Petition is referred to it for trial, except that of transfer of the Election Petition from one Tribunal to another. With great respect, we do not subscribe to the view adopted in the case Zafar Ahmed Shah v. Khawaja Noor Ahmed Chisti and others 1984 CLC 989 regarding the demarcation between the jurisdiction of the Provincial Election Authority and the Election Tribunal, first after the publication of the results in official Gazette.
15. It was lastly contended by the learned counsel for the petitioner that the Election Tribunal did not have material before it for declaring the election as a whole void. Elucidating his arguments, he urged that there was no evidence before the Tribunal of any corrupt or illegal practice adopted at the election and in the absence of such evidence, the election could not be held void. He placed reliance on the cases reported in PLD 1968 SC 331 and PLD 1982 SC 1.72. On the other hand, the learned counsel for the respondent No. 1 contended that it is provided under subsection (2) of section 39 of the Ordinance that an Election Petition shall be tried in accordance with the procedure laid down in the law relating to the election of the Provincial Assembly for the time being in force. According to him, the existing law for the election to the Provincial Assembly is the Representation of the People Act, 1976 and that appears to be the correct position. Section 70 to the said Act lays down the grounds for declaring election as a whole void as under:
(a) The failure of any person to comply with the provisions of this Act or the Rules, or
(b) The prevalence of extensive corrupt or illegal practice at the election."
' In the instant case, it has been discussed above that the Appellate Authority cancelled the candidature of the respondent No. 1 without lawful authority and it did amount to his failure in complying with the provisions of the Ordinance and the Election Rules and election as a whole could be declared as void. The authorities cited by the learned counsel for the petitioner pertain to the situation envisaged under clause (b) of section 70 of the Representation of the People Act, 1976.
Whereas the facts of the instant case the provisions of clause (a) reproduced above.
16. For the reasons recorded above, the grounds agitated in this petition are not sustainable.
Accordingly, the petition is dismissed with no order as to costs.
' IBADAT YAR KHAN, J.--The expression "pecuniary interest in its affairs" used in the body of this section is to be examined in depth and the legislative intent behind this provision of law is also to be gathered as far as possible. It appears that the object of disqualifying a person under this clause is that such a person who has a pecuniary interest in the affairs of a council should not be allowed to acquire a position of decision-making by manipulating the affairs or influencing the affairs of the council to his advantage. In other words such a person should be prevented from taking any advantage of his position and from exploiting the office of a councilor for personal benefits. But "pecuniary interest in the affairs of the council" does not mean any and every pecuniary relationship between the council and the aspirant of the membership of the council. If the expression "pecuniary interest in the affairs of the council" is closely examined it would become evident that the last two words "affairs of the council" are important. Unless the "pecuniary interest" is of such a nature as to influence the affairs of the council it should not be enough to disqualify and defranchise a contender for the office. Any person who is tax-payer of the council has a pecuniary relationship with the council. He pays severage and water-tax. In some cases where the council owns power houses to supply electric power a person pays his monthly bill for consumption of energy. Any vendor who uses a Thalla in the municipal area has to pay Tehbazari- tax and even a cart-driver pays some tax to the council. Can all such persons be disqualified from taking part in the election of a council? The position of the respondent is that he is a lessee of a plot and like thousands of lessees and licensees of plots and shops he has to pay some lease money or ground rent. In my humble opinion he cannot be said to have interest in the "affairs of the council" although the liability to pay lease money is of pecuniary nature. If the full text of the section is kept in view the legislative intent would be clear. For ready reference section 37(2)(e) is reproduced here:-
(e) "he is under contract for work to be done or goods to be supplied to the council or has otherwise any pecuniary interest in its affairs."
' With the addition of this short note I would respectfully agree with the conclusions drawn by my brother and would concur in the findings in his judgment.