ZIAMAHMOOD MIRZA, J,.---Petitioner and Ata Muhammad, respondent No.2, filed nomination papers for election to Ward No.9, Town Committee, Isa Khel. The Returning Officer accepted the petitioner'snomination. Papers but rejected those of the respondent by order dated 12-14-1987.
Respondent No.2 preferred an appeal against the rejection of his nomination papers but that was dismissed by the appellate authority vide order dated .16-11-198-7. Respondent - No.2, thereafter, moved the Punjab Local Councils., Election Authority against the rejection of his nomination papers.
The Election Authority relying upon PLD 1984 Lahore 15 held that even if the respondent's retirement be considered to have taken effect from 31-12-1985, he was not disqualified to contest the election by virtue of second proviso added to section 21(l)(0 of the Punjab Local Government Ordinance which had the effect - of whittling down. The provisions contained in the relevant clauses of subsection; (1) of section 21 of the Ordinance. Orders rejecting the nomination papers of the respondent were accordingly set aside and it was directed that the respondent's name be included in the list of validly nominated candidates-- and he be allocated a symbol.
1 2. It appears that respondent No.2 took part in the elections and was declared successful.
Petitioner has now riled the present constitutional petition to call in question the order of the Punjab Election Authority dated 29-11-1987
3. We have heard the learned counsel for the petitioner. He has submitted that after the nomination papers of the respondent were rejected by the Returning Officer and the Appellate Authority, petitioner was declared as a returned candidate. His election could therefore, only be challenged in an Election Petition and the Provincial Election Authority had no 'jurisdiction to pass the impugned order accepting the nomination papers of the respondent. We find no force in this contention.
Election Authority under section 17 of the Punjab Local Government Ordinance was possessed of ample jurisdiction to A set aside the order of the Returning Officer and of the Appellate Authority Section 17(l) reads as follows:-- 17.Election Authority to ensure fair elections, etc.--(I) The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the ,Ordinance or the rules, and make such consequential order as may in its opinion be necessary for ensuring that 'an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules."
The afore quoted provision has been interpreted by the Supreme Court of Pakistan in Emmanual Masih v. The Punjab Local Councils Election Authority and others 1985 SCMR. 729 and it was held that the Election Authority becomes functus officio only after the elections are over and that the scrutiny of nomination papers was part of the conduct of an election and consequently "The 'Election Authority has the power of control over it under section 17(l) of the Punjab Local Government Ordinance and could review the orders of the Returning Officer relating to 'Scrutiny'." It has been further observed by the Supreme Court that the Ordinance by its section 17 confers on the Election Authority a duty to ensure that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules and it is invested with all the enabling and remedial powers in that behalf. It was held that keeping in view the clear mandate of law relating to the functions of the Election Authority, it cannot be made a helpless on-looker, "enjoined to countenance manifest, illegalities with the only available apology that they 'can be taken care of with at a subsequent stage, in a different proceeding, at more leisurely pace, and in the interregnum the consequences of such manifest illegalities and fruits thereof should remain available to these ex facie not deserving of it."
4. In the aforesaid view of the matter, Punjab Election Authority with a view to ensure the conduct of fair, just and honest election which, as noted above, is the very object of its creation, was fully empowered to review the orders passed by the subordinate officers so as to redress the wrong and remove the illegalities. This precisely has been done by the Election Authority in its impugned order.
5. As regards the argument that the petitioner had in the meantime beendeclared as a returned candidate in consequence of the rejection of the nomination papers of the respondents, suffice it to observe that Ns was subject to the decision of the Provincial Election Authority in the matter of scrutiny of nomination papers. Since the nomination papers of the respondent No.3 were accepted by the Election Authority, elections were rightly held on 30-11-1987.
Upshot of the above discussion is that the impugned order of Punjab Local Councils Election Authority is unexceptionable. There is no merit in this writ petition which is dismissed in limine.
AA./K-43/L