1. MUNAWAR AHMAD MIRZA, C.J.---This petition is directed against judgment 20-12-1992 passed by learned Election Tribunal, Nasirabad. Petitioner had contested election on the peasants' seat, and was elected. Respondent Sarfraz filed election petition challenging validity of his election, which was accepted vide judgment dated 20-12-1992. Operative portion is reproduced below:-- "Issue No, 3 has been decided against the petitioner, therefore, he is not entitled for declaration that he is a peasant with the meaning of section 3(89) of Balochistan Local Government Ordinance, 1980. Similarly, the issue No, 4 has been also decided against respondent No, 1 holding that he is not a peasant as stipulated under law. In view of evidence discussed it is held that on the day of nomination papers the respondent No, 1 was not qualified as a peasant, therefore, the election of returned candidate i,e, respondent No, 1 Allah Dad son of Haji Dad Muhammad is declared as null and void. Under the circumstances, fresh election for the special seat reserved for peasants for District Council, Nasirabad is ordered to be held. There is no order as to cost. The record of the case is ordered to be submitted to Election Authority as required under Rule 73(2) of Balochistan Local Government (Elections) Rule, 1983."
2. Through present petition above order has been questioned. Respondent in his counter-affidavit gave details of property owned by petitioner. Accordingly he was directed to furnish affidavit for specifying factual position in that behalf. However, a vague reply has been filed today. Meanwhile record of trial Court was also requisitioned. Petitioner and his counsel Mr. Mohsin Javed, Advocate were confronted with certified copies of revenue record showing sale of lands on 6th March, 1992 and 31st of May, 1992. They admitted that said transaction was carried out, and made such endorsement on said documents under their signatures. Additionally pass book showing petitioner's ownership in Mouza Gorshani and Mouza Ali Khan is available on the record of Tribunal as Exh.P.K.
2. It may be seen that subsection (3) of section 4 of the Loans for Agricultural Purposes Act, 1973 (Act No, XLII of 1973) provides presumption of title in respect of entries contained therein. It is settled principle of law that mere mortgage does not divest land owner of his title to the property. There is nothing concrete to suggest that any portion of said land was sold by petitioner five years prior to date of his nomination.
3. "Peasant" has been defined by Balochistan Local Government Ordinance, 1980 in section 3(39) which reads as under:-- "3(39) 'Peasant' means a person who is landless tenant or who for a continuous period of five years preceding the year in which the election is held is or has been owner of not more than five acres of land and engages himself personally in cultivation for his maintenance."..
4. Bare perusal of above provision indicates that any person owning land beyond five acres for continuous period of five years preceding date of election would not fall within the ambit of 'peasant'.
5. Mr. Mohsin Javed, however, in view of factual position conceded that petitioner does not fall within the category of "peasant" as defined in section 3(39) of Local Government Ordinance, 1980 (hereinafter referred as The Ordinance'), but attempted to argue that section 21 of said enactment does not mention any such disqualification for contesting election against `peasants' seat.
6. We are afraid such conclusion would not be possible because same tends to frustrate object for creating special interest seat. It is worthwhile to mention that section 15 of 'The Ordinance' provides representation concerning special class of members in every local body. For ready reference same is reproduced below: "15.--(1) A District Council may have such number of members representing peasants, tenants, workers and women as may be prescribed and they shall be elected in the prescribed manner.
(2) Nothing contained in subsection (1) shall prevent the members of the special interest mentioned in the said subsection from being elected to general seat in any District Council."
7. Thorough scrutiny of above provision postulates that categories of persons referred above represent special interest seats. Subsection (2) of section 15 further clarifies that class of persons mentioned above are also eligible to contest against general seats. Conversely speaking such right would not be available to person otherwise qualified for general seat. It is, therefore, quite obvious that person desirous to claim membership against special interest seat apart from fulfilling qualification contained in section 21 of 'The Ordinance' must essentially satisfy prescribed requirement for each class of member reserved for special interest seat as defined in the Statute. It may be seen that definition clause of section 3(39) of 'The Ordinance' expressly controls and regulates the eligibility of a candidate offering to contest election against special interest seat of peasant. Indirect tactics cannot be devised to thwart object of law and deny members of special class from their participation in the local bodies. It is well-settled that when statute expressly defines a 'peasant' then for determining his qualification, relevant requirement specified by law must be strictly kept in view. Record amply discloses that petitioner had alienated large area of property immediately prior to date of nomination and still holds through pass-book sufficient acreage of land which conspicuously debars him from being treated as 'peasant' under 'The Ordinance'.
8. From the perusal of documents and admitted facts we are inclined to hold that petitioner was not eligible to contest election against reserve seat' of `peasants' as rightly held by the Election Tribunal through impugned judgment.
9. The petition is ex facie misconceived, therefore, same is dismissed with costs.