' The petitioner has called in question the legality of the order dated 5-2-1991 passed by the Returning Officer/Assistant Commissioner, Talagang, whereby he rejected the nomination paper of the petitioner for the Election of the Councillor of the Ward No,4 of Municipal Committee, Talagang, District Chakwal, to be held on 14-2-1991, and the order dated 10-2-1991, whereby the appeal against the said order was dismissed by the Deputy Commissioner/Appellate Authority, Chakwal.
2. The learned counsel contended that the nomination paper of the petitioner for the election in question had been rejected merely on the ground that his father's name is mentioned as "Mansab Khan" in the electoral list of the Ward in question instead of "Mansab Dar". The learned counsel further argued that such an error was not of substantial nature and that, therefore, his nomination paper has been rejected in contravention of the provisions of sub-rule (3)(ii) of Rule 15 of the Punjab Local Council (Election) Rules, 1979, which is as follows:-- "the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, such as error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer;".
3. The learned counsel further submitted that the petitioner is a permanent resident of the Ward in question and that no objection had been raised to the effect that he was making use of an entry in the electoral list which did not bear his name or the correct parentage. The objection, it was pointed out, was only to the effect that by mistake the name of his father had been entered as "Mansab Khan" instead of "Mansab Dar". Further pointed out that in accordance with the provisions of subsection 3 of rule 15 ibid; the Returning Officer did not conduct summary enquiry before rejecting the nomination paper of the petitioner. The relevant subsection reads as follows:-- "The Returning Officer may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that---
(a) The candidate is not qualified to be elected as a member;
(b) the proposer (*) is not qualified to subscribe to the nomination paper;
(c) any provision of rule 13 or rule 14 has not been complied with; or
(d) the signature or thumb-impression of the proposer (*) is not genuine: Provided that---
(i) the rejection of a nomination paper shall not invalidate the nomination of candidate by any other valid nomination paper;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, such as error in regard to the name, serial number in the electoral roll or other particulars of the (candidate or his proposer); and
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, and shall not reject a nomination paper.On the basis of an entry in the electoral roll which contains an obvious error or defect."
4. Further pointed out that the rejection of the nomination paper was in stark violation of the mandatory bar stated in the third proviso stated above, which clearly lays down that the Returning Officer shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect. To illustrate his arguments, it was further submitted that as stated earlier, the objection raised was neither in respect of the petitioner not being the person named as the voter in the electoral list but pertained only the an obvious error or defect in respect of the name of his father as instead of the said name having been written therein as "Mansab Dar" the same had been recorded as "Mansab Khan".
5. In pursuance to the order dated 11-2-1991 respondent No,2, the Returning Officer/Assistant Commissioner, is present in the Court and is also representing respondent No,3. The said respondent had confirmed that in compliance with the said order the petitioner's name has been included among the validly nominated candidates for the election in question and has been allotted a symbol for participating in the said elections.
6. The said respondent further confirmed that he had not held any summary enquiry before rejecting the nomination paper in question but submitted that in his view the error in respect of the name of the father of the petitioner was of a substantial nature and that, therefore, he had rejected his nomination paper.
7. However, we are of the view that, as has been pointed out by the learned counsel for the petitioner with reference to the rules stated above, the defect or error in respect of the name of the petitioner's father could have been allowed to be remedied forthwith as it pertained to the particulars of the candidate as laid down in the second proviso to the subsection 3 of Rule 15 ibid. It has further been noted that the objection was of a mechanical nature and that in the written objection so raised it had not been stated that the petitioner was not the one mentioned as such at the relevant serial number in the electoral list. Therefore, we arc constraine to point out, that if the learned Returning officer had taken the trouble of holding a summary enquiry as required under subsection 3 of rule 15 ibid, he could come to only one conclusion that the rejection of the nomination paper on the basis of such an obvious error or defect was precluded by the provisions contained in the third proviso of the said subsection as stated above, and once again reproduced here for emphasis:- "the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, and shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect."
8. We further avail this opportunity to note that the participation in any election but particularly in the Local Council Elections should not be barred because of mere technicality, specially if the relevant laws and the rules provide for the same to be rectified, as is the case in the present dispute. We are of the view that it is the objective of the letter and spirit of the laws and the rules made thereunder, for conducting the election in question, to encourage the participation of the largest number, and that the said laws and rules should facilitate the participation of the citizens in the democratic exercise of casting votes and contesting elections, and should not be used as a bar due to the failure of the voter, or of the authorities, entrusted with the preparation of the electoral list and the conduct of the elections to abide by some technicality which, otherwise too, can be cured or rectified by the relevant provisions of the said laws and rules made thereunder.
9. In view of the above discussion, we hereby hold that the error or defect in respect of the petitioner's father's name having been stated as "Mansab Khan" instead of "Mansab Dar" in the electoral list is not of a substantial nature and as such did not call for his nomination paper to be rejected. Therefore, we accept the present writ petition and direct that the petitioner shall be deemed to be a validly nominated candidate for participation in the election in question and as a result thereof, hereby set aside the impugned orders dated 5-2-1991 and 10-2-1991 with no order as to costs.