1. ' On request of both the learned counsel for the parties matter is heard and finally decided.
2. ' Through this petition, the petitioner has challenged the order, dated 10-5-2001 whereby the District Returning Officer and District Judge, Hyderabad has dismissed his appeal against the rejection of his nomination form by the Returning Officer.
3. ' At the outset, it may be stated that the question of maintainability of this petition has been raised in following words: "How this petition is maintainable challenging the Election Authorities."
4. ' We, therefore, intend to deal with this preliminary objection before the factual aspect in this Constitutional petition is considered. To answer this question, it will be pertinent to refer to the relevant provision of law which deals with election for local Government.
5. ' According to rule 16(1) of the Sindh Local Government Elections Rules, 2000, after the publication of Election programme under Rule 13 of Rules (ibid). Nominations are invited by the Returning Officer by way of public notice specifying the time before which and the place at which nomination papers shall be received by him. Then, as per Rule 16(2) (ibid) an elector may propose or second the name of any duly qualified person to be a candidate for becoming a member of that Ward.
6. ' After the nomination papers have been received as above the scrutiny is held in pursuance of rule 18(1) and (2) (ibid) which is reproduced for the sake of facility as follows:--- "18. Scrutiny.--- (1) The scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made representations or objections against the nomination papers, and any voters of the local area concerned who obtain permission from the Returning Officer, before the commencement of the scrutiny. The Returning Officer shall give all those present, reasonable opportunity for examining all nomination papers delivered to him under rule 16".
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (.1), examine the nomination papers and decide any objection raised by any such person to any nomination".
7. ' The Returning Officer thereafter within the terms of sub-rule (3) of section 18 ibid may, either suo motu or upon any objection, conduct such summary enquiry as he may think and may reject a nomination paper if he is satisfied that:---
(i) the candidate is not qualified to be elected as a member; ' the proposer or the seconder is not qualified to subscribe to the nomination paper; ' any provision of rule 16 or rule 17 has not been complied with; or ' the signature or thumb impression of the proposer or the seconder is not genuine: ' Provided that in case of rejection of the nomination of either a Nazim or a Naib-Nazim as joint candidates, the nomination as a whole for both the joint candidates shall stand rejected".
8. ' In case of rejection of the nomination form an appeal lies to the District Returning Officer under sub-rule (4) (ibid) which reads as below: "(4) An appeal against the decision of the Returning Officer under sub-rule (3) may be preferred by any person present at the time of scrutiny under sub-rule (1) to the Appellate Authority appointed for the purpose by the Chief Election Commissioner, and the decision of such Authority shall be final".
9. ' It is stated that subsequently, by way of Notification, dated 14-4-2001, the above sub-rule (4) was, by amendment, substituted as follows:--- "(4) An appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate may be preferred by any person present at the time of scrutiny under sub-rule (1) to the Appellate Authority appointed for the purpose by the Chief Election Commissioner, ' and the decision of such authority shall be final."
10. ' In the instant case, the nomination paper has been rejected by the Returning Officer vide his orders, dated 5-5-2001 and on an appeal the said order has been maintained vide impugned order.
11. ' We have heard learned counsel for the petitioner and the learned A.A.-G.
12. ' Learned counsel contends that on rejection of nomination paper of a candidate no remedy convenient, efficacious or speedy has been provided by the Rules (ibid). He submits that according to rule 71 no election shall be called in question except by an election petition made by a candidate for that election; notwithstanding, such petition cannot be based on the ground of rejection of nomination paper but there is provision that a Tribunal shall declare the election of Returned Candidate to be void on the ground that his nomination was invalid. To support his arguments, learned counsel referred to rule 82 (1) of the Rules ibid whereby the Tribunal has been invested with powers to declare the election of the returned candidates to be void if it is satisfied that:---
(a) the nomination of the returned candidate was invalid;
(b) the returned candidate was not, on the nomination day qualified for, or was qualified from, being elected as a member of Nazim or Naib-Nazim, as the case may be; or
(c) the election of the returned candidate has been procured or induced by any Corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorized agent."
13. ' Learned counsel further submitted that as per sub-rule (2) of rule 71 reproduced below an election petition can be filed after publication in the official Gazette the name of returned candidate in official Gazette but no remedy on decision of Appellate Authority has been provided against order of Appellate Authority at the stage when the nomination paper is rejected illegally, arbitrarily or in an unfair manner and the list of contesting candidates is furnished before going for polls.
14. "(2) an appeal shall be presented to the Tribunal appointed by the Chief Election Commissioner within thirty days of the publication in the official Gazette the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited in a Scheduled Bank in favour of the Chief Election Commissioner, as ; sum of one thousand rupees, as fee for the petition."
15. ' On perusal of the above provision of law, it is abundantly clear that a candidate whose nomination paper has been rejected does not have the remedy to enable him to seek and ensure his participation in ensuing elections so also no remedy has been provided to a candidate before an Election Tribunal by way of election petition only on the ground that his nomination paper has been rejected illegally, arbitrarily or in an unfair manner.
16. ' Admittedly, this petition has been filed in the circumstances which relate to the pre-election exercise, no remedy, speedy, convenient or efficacious, has been provided against order passed at this stage. Learned A.A.-G. Is also of the view that in the circumstances Constitutional petition is maintainable. It may also be relevant here to refer to the case law reported as Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer NA 158, Naushero Feroz (1994 SCM R 1299), wherein with utmost regard, it is stated that following has been observed: "However, while dealing with the judgment rendered by Hamoodur Rehman, C.J. In the case of Farzand Ali v. Province of West Pakistan PLD 1970 SC 98, the following observations were made: ' In that case a broad argument was raised that if once the name of the person has been registered on the electoral roll, his nomination paper having been accepted and he being allowed to contest the election successfully, his election could not be challenged in any other manner save under the specific law providing for challenging election, notwithstanding the fact that no provision has been made in the Constitution or any other law for prescribing a special procedure to meet a pre-election disqualification of the successful candidates. Hamoodur Rehman, C.J. Did not accept the argument as presented mainly on two grounds; firstly, that if it was to prevail then it would hit Article 103 of the Constitution as then such a person would continue to remain a Member of the Assembly even though Article 103 did not permit it, and secondly, because the dispute raised after an election is not a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a member of an Assembly. In effect, therefore, the dispute did not relate to the validity but title to the office in which case writ of quo warranto could issue. Again in that context it was also observed that the remedy would still be available in all cases where the matter is, as in the case under consideration, outside the scope of statutory remedy.
17. ' These observations are distinguishable as right held by the learned Chief Justice in the context of the fact that they did not arise in relation to an election or were outside the scope of the statutory remedies. This being so, the rule stated earlier that the action has to be tested on the touchstone of the word 'election' is not affected in view of the Constitutional bar providing for the enforcement of the right through remedies available under the Act comprehended therein."
24. The ratio of the last para. Of the above quoted passage can be pressed into service in the present case as the remedy of an election petition on the ground of rejection of nomination papers is not available as a ground for assailing the election of a returned candidate contained in subsection (1) of section 68 quoted hereinabove. Whereas this ground is available in clause (c) of subsection (1) of section 100 of the Indian Representation of the People Act referred to hereinabove.
18. Secondly, the above ex parte order was passed by the Returning Officer on 14-9-1993 whereas the last date for deciding the appeal by the Tribunal notified was 22-9-1993. In the above reported case, the High Court in fact through the impugned judgment had taken over the control of bye- elections instead of allowing the Election Commission to discharge its Constitutional duty to hold elections. In view of the above peculiar features, the above reported case is distinguishable from the present case. In the above report, the Minority view was rendered by one of us, Nasim Hasan Shah, J. (as he then was), in which it was held that the order of the Returning Officer altering the approved list and substituting it with a new list of the staff was without jurisdiction and the same was fit for interference under Article 199 of the Constitution. We are inclined to hold that the appellant's above Constitutional petition was competent and the High Court by declining to exercise its Constitutional jurisdiction of the reason quoted hereinabove was failed to exercise jurisdiction vested in it."
19. ' Besides above, it may also be beneficial to refer to an unreported decision dated 16-3-2001 in a Constitutional Petition No, D-214/2001 (Sukkur) whereby a Division Bench of this Court in a case where the District Returning Officer, Sukkur rejected a nomination form of petitioner for contesting the election of Nazim for Union Council 26 Loung Bhath Taluka Rohri, set aside the said order and allowed the petition.
20. ' In view of the above discussion we hold that this petition is maintainable.
21. ' We have decided the question of jurisdiction as above. We come to the facts of the matter which apparently do not appear to be controversial. The nomination paper of the petitioner has been rejected on the grounds that his name does not appear in the Electoral Roll nor he could produce the order/directions of High Court of Sindh in respect of Constitutional Petition No, 205 of 2001, which according to him, was filed with a prayer to include and maintain his name and others as per Annexures A and B being already listed voters in the newly prepared list. As far as order in Constitutional petition No, 205 of 2001 is concerned the petitioner has produced certified copy of the order, dated 10-5-2001 in which following order has been passed by this Division Bench.
22. "Learned counsel for the petitioner does not press this petition which is dismissed."
23. ' Coming to the other ground of rejection of nomination papers, it may be stated that name of the petitioner does not appear in the Electoral Roll. The petitioner has produced before us a copy of Electoral Roll to contend that his name appears at Serial No, 59 of the said list. On perusal whereof it appears that the name shown against Serial No, 59 is Arbab Ali son of Muhammad whereas the name of the petitioner which appears distinctly in the memo. Of his appeal filed by him before the District Returning Officer and in this petition, is Arbab Ali Balal son of Muhammad Bux Balal. Latter name shown to be of the petitioner is not same as is mentioned at Serial No, 59 of the Electoral Roll.
24. In the circumstances, we are of the considered view that learned Returning Officer and the learned District Returning Officer and District Judge have passed valid orders which require no interference.
25. This petition is dismissed accordingly.