' Through this Constitutional petition the petitioners seeks setting aside the order, dated 25-7-2001 passed by the District Returning Officer-respondent No,4 by which the appeal was accepted against the acceptance of the nomination papers of the petitioner by the Returning Officer on 21- 7-2001.
2. The brief facts of the case are that the petitioners filed their nomination papers for the seats of Nazim and Naib-Nazim of Tehsil Renala Khurd, District Okara. The nomination papers were filed on 16-7-2001 and the petitioners claim that these were duly signed by the proposer and seconder with solemn affirmation made and signed by both the petitioners. The applicants filed C.M. No, 3 of 2001 who were also contesting candidates were though not made a party but were allowed to join the proceedings as respondents. After the acceptance of the nomination papers respondents Nos.1 and 2 filed appeal before the District Returning Officer who after hearing both the parties vide impugned order dated 25-7-2001 has accepted the appeal and the nomination papers of the petitioners were rejected.
3. This writ petition came up for hearing before this Court on 30-7-2001 and it was admitted for regular hearing and notices were issued to the respondents. In C.M. No, 1 of 2001 the petitioners were allowed to contest the election and the Returning Officer was directed to take necessary steps for the issuance of the symbols to the petitioners. The petitioners have won the election.
4. The applicants in C.M. No, 3 of 2001 have become the running candidates and respondents Nos.1 and 2 have been polled less votes than the applicants of C.M. No,3 of 2001, in this writ petition.
Respondents Nos.1 and 2 who are the only contesting respondents, vide order dated 16-8-2001, appeared in this Court through their learned counsel on 16-8-2001, and made a statement that they have no objection if the writ petition is accepted. The only contestants in this writ petition are the applicants in C.M. No,3 of 2001 who have been allowed to join the proceedings.
5. Learned counsel for the petitioners contends that petitioner No,1 who was admittedly in America and could not get the seat but received the documents from Pakistan and signed the nomination papers alongwith declaration of assets and sent it back through P.I.A. Crew which were duly filed before the Returning Officer. The petitioner was in constant touch with his family members and petitioner No,2 on internet and the petitioner's willingness to contest the election and signing of nomination papers was duly verified by the proposer and seconder. He also claimed that solemn affirmation made in the declaration form is also duly signed by him. The learned District Returning Officer has fallen in error by declaring that the nomination papers have not been signed by the petitioner in spite of that reasonable explanation for the visible change in the signatures on the nomination papers has been duly made. It is argued that now the age of the petitioner is 74 years and when he obtained the Identity Card he was aged about 49 years hence due to the lapse of time the difference has come in the signatures and moreso the petitioner has also been operated.
He further contends that the matter requires the recording of evidence and the impugned decision for the rejection of the nomination papers passed by the learned District Returning Officer in a slipshod manner is illegal and unlawful; the order has been passed on conjectures and surmises and the proper opportunity has not been afforded to the petitioners to prove their case. The grounds taken for the rejection of the nomination papers are not sufficient and this order is liable to be set aside. He further contends that the applicants in C.M. No,3 of 2001 who are the only contestants, in this writ petition have no locus standi to oppose this writ petition as they had not filed the objection petition at the time of acceptance of nomination papers and even did not file any appeal hence they cannot contest the writ petition. He further contends that the order passed by the District Returning Officer showing that he has examined the signatures and comparison duly made is based on an assessm ent without claiming to be Handwriting Expert which cannot be made the basis for the rejection of the nomination papers to deprive the petitioners from contesting the election and from availing the right to contest the election. It is further contended that the petitioners have won the election and now the only remedy is an election petition and this writ petition may be accepted.
6. On the other hand learned counsel appearing on behalf of the applicants in C.M. No, 3 of 2001 who are the runner up candidates argues that it was necessary for the petitioner to sign the papers which were not duly signed by him as he was not in Pakistan hence the mandatory provision has been violated and the petitioner cannot be allowed to contest the election and the orders of the District Returning Officer is based on sound reasonings and is supported by the documents which cannot be set aside on the grounds taken in this writ petition. He further contends that rule 16, sub- rule (3), clause (ii) of the Local Government (Election) Rules, 2000, provides that every nomination papers of Nazim and Naib-Nazim shall on solemn affirmation made, be signed by the candidates as also by both the proposer and seconder and sub-rule (4) lays down that the declaration of assets has also to be attached with the nomination papers. Petitioner No,1 was admittedly not in Pakistan. He had not signed the nomination papers hence the same could not be accepted by the Returning Officer and the District Returning Officer has rightly accepted the appeal and rejected the nomination of petitioners. He further contends that the objection was definitely not raised at the time of acceptance of the nomination papers but instead the date which was fixed for the scrutiny of the nomination papers by the Returning Officer as 22-7-2001 but he on 21-7-2001 accepted the nomination papers hence the opportunity was not afforded to the applicants-respondents to challenge the same. It is further contended that this Court has exercised the writ jurisdiction and has allowed the petitioners to contest the elections hence election petition is not an adequate and efficacious remedy, a decision of the writ petition shall be made on merits instead of disposing of the same on technical grounds. He further contends that the order impugned is not a capricious or whimsical and cannot be set aside in writ jurisdiction. He further contends that on merits, on a bare perusal of the signatures it becomes crystal clear that the signatures are not identical to that on the Identity Card of petitioner No,
1. Hence, petitioner No,1 has not succeeded in making out a case and the impugned order is liable to be upheld in the circumstances of the case by dismissing the writ petition. He also relied upon judgments in Election Appeal No, 33 of 1993 and argues that the provisions of the election laws are mandatory and not directory and have to be followed in letter and spirit.
7. I have heard the learned counsel for the parties and also perused the impugned order. The claim of the petitioner is that he had signed the nomination papers as he was continuously in touch with his family members and petitioner No,2 and the witnesses and has signed the papers after receiving the nomination papers through a crew of PIA and after signatures it was sent back for filing of the same before the Returning Officer. Petitioner No,1 also explains that he could not get the seat due to rush and came to Pakistan on 16-7-2001 and owns his signatures. The nomination papers were accepted by the Returning Officer but nobody raised any objection during the scrutiny on 21-7-2001. The contesting respondents applicants in C.M. No, 3 of 2001 admittedly did not raise any objection at the time of acceptance of the nomination papers which has been explained by the learned counsel for the respondents/applicants that the date for the scrutiny of the nomination .Papers was fixed for 22-7-2001 but the same was held on 21-7-2001 and admittedly he did not file any appeal against the acceptance of the nomination papers. Respondents Nos.1 and 2 filed the appeal before the District Returning Officer who after hearing both the parties has passed the impugned order. The order passed by the District Returning Officer for depriving the petitioner from contesting the election prima facie seems to be disposal of matter without affording opportunities to the parties to lead their evidence prove their versions. Petitioner No,1 claims that he has signed the nomination papers and signatures on the same also owned by him He has also explained that admittedly he was not in. Pakistan but he signed the papers and sent the same through a crew of PIA. He has also explained that the signatures which were compared by the District Returning Officer with the Identity Card are prima facie different due to the reason that the signatures on the Identity Card was made about 25 years ago. He also explains that he has been berated and some difference in the signatures have been occurred and this has been duly explained by him before the District Returning Officer but instead of affording opportunities to the parties them. District Returning Officer in a slipshod manner has rejected the nomination papers of petitioners Nos.1 and 2 by holding that the petitioner's version that he had signed the papers in America and sent through a crew of PIA has been rejected and the explanation for the slight difference in the signatures has not been accepted. The intention of the Legislature is not to reject the nomination paper at any cost. If some reasonable explanation is made by any candidate that has to be considered and whether the explanation is correct or incorrect that can only be decided after the recording of evidence and nomination papers cannot be rejected in a summary proceedings where the feudal controversies are involved and the matter requires recording of evidence. To contest the election is the vested right and no one can be deprived of that right merely on surmises and conjectures and the arrival of impugned conclusion was based on oral assertions. In my view in this case the procedure adopted by the District Returning Officer and the rejection of the nomination papers has been done in an illegal manner and cannot be allowed to continue. The petitioner has been declared as successful candidate and has been duly notified and is functioning. The respondents/applicants in C.M. No, 3 of 2001 had not contested the acceptance of the nomination papers throughout the election and filed. C.M. No, 3 of 2001 even after the announcement of the result of the election in which he was found as runner. The applicants/respondents if had any grievance or want to raise some objections on the election of the petitioners can file the election petition which is the only proper forum available to them and cannot contest the writ petition as they had not contested the issue before the earlier forum. It has been clearly mentioned that no election shall be called in question except by an election petition made by a candidate for that election. Rule 70 is reproduced as under:- "70. Election petition.--- (1) No election shall be called in question except by an election petition made by a candidate for that election (hereinafter referred to as the petitioner).
(2) An election petition 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 a sum of one thousand rupees, as fee for the petition.
(3) An election petition shall be presented by a petitioner and shall be deemed to have been presented, when it is delivered in person by the petitioner, or by a person authorised in this behalf by him, to the Tribunal appointed by the Chief Election Commissioner for the nurnose."
8. Learned counsel for the petitioners after the 'conclusion of the arguments has brought to my notice that the petitioners have received the notices as the election petition has been filed by the contesting respondents/applicants in C.M. No, 3 of 2001 hence the alternate remedy has been availed the parties will be afforded opportunity to lead evidence before the Election Tribunal. This order will not affect the merits of the case of any of the parties.
9. In view of the above discussion I am inclined to accept this petition. The orders impugned are set aside and the order to the extent of acceptance of nomination papers dated 30-7-2001 is maintained. The applicants/respondents can file the election petition and can raise the objection before the competent forum.