' SHAHZAD AKBAR KHAN, J.---Through this common judgment we propose to dispose of two writ petitions, i,e, Writ Petition No,1346 of 2001 and Writ Petition No,1509 of 2001 as the point for determination in both the petitions is one and the same.
2. The short background of these petitions is that petitioners Nos.1 and 2 of Writ Petition No,1346 of 2001 contested election for the offices of Zila Nazim and Naib Zila Nazim for District Swabi respectively against respondents Nos.1 and 2. Similarly, in Writ Petition No,1509 of 2001 petitioners Nos.1 and 2 fought election against respondents Nos.1 and 2 for the office of Nazim and Naib Nazim Union Council Latamber respectively. As a result of the election the petitioners of both the writ petitions were declared as returned candidates against their rival respondents. Election petitions were filed by the unsuccessful candidates (respondents) before the Election Tribunals under rule 74 of N.-W.F.P. Local Government Rules of 2000 seeking a declaration to the effect that the election of the petitioners of both the writ petitions as returned candidates for their respective offices is void and that the respondents Nos.1 and 2 are duly elected for the aforesaid seats respectively. The petit: hers of both the writ petitions filed applications for summary dismissal of the election petitions. The Election Tribunals, however, did not pass any order on the , application filed by the petitioners (of Writ. Petition No,1346 of 2001) for the dismissal of ' election petition which caused grievances to , them. The application of petitioners of Writ Petition No,1509 of 2001 was dismissed by the learned Election Tribunal vide his order dated 26-11-2001. Both the writ petitions have ,now been filed questioning the legality of the proceedings pending before the respective Election Tribunals.
3. The learned counsel appearing in support of the writ petitions have raised and argued the contention that the Election Tribunals were constituted by the Chief Election Commissioner under rule 74 of North-West Frontier Province, Election Rules, 2000 and the election petitions were filed before the appointed Tribunal under rule 71 of the said Rules. It was contended that after coming into force the North-West Frontier Province Local Government Ordinance, 2001 (N.-W.F.P. Ordinance No,XIV of 2001) (hereinafter to be called as the Ordinance), the North-West Frontier Province the Local Government Ordinance, 1979 (N.-W.F.P. Ordinance IV of 1979) and the North-West Frontier Province Local Government Election Ordinance; 2000 (N.-W.F.P. Ordinance No,VI of 2000) stood repealed by virtue of section 196 of N.-W.F.P. Ordinance No,XIV of 2001. It was contended that by the repealing of the parent Ordinances, all the rules, regulations and bye-laws made thereunder also stood repealed which produced the effect that the Election Tribunals referred above ceased to exist and no election petition could competently be filed before any Election Tribunal. Rules 71 and 74 referred above being relevant are reproduced below:- "71. 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 of 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 authorized in this behalf by him, to the tribunal appointed by the Chief Election Commissioner for the purpose."
"74.Appointment of Tribunal.---(1) For the disposal of election petitions under these rules, the Chief Election Commissioner may appoint as many Election Tribunals as may be necessary.
(2) A Tribunal shall consist of a person who is or has been a District and Sessions Judge or Additional District and Sessions Judge or a Senior Civil Judge."
' The learned counsel contended that after coming into force N.-W.F.P. Ordinance, No,XIV of 2001, it is only the Election Commission or any Authority authorized by it shall have the power to decide any dispute regarding the election carried out under the Ordinance. Reference is made to section 161 of the Ordinance. The qualifications/ disqualifications of the candidates or the elected office holders have been enumerated in section 152 while the removal of the , office-bearers is contemplated by section 161 of the Ordinance. Both the sections being relevant to the controversy are reproduced below:-- "152. Qualifications for candidates and elected members.---(1) A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he:
(a) is a citizen of Pakistan;
(b) is at least twenty five years of age.
(c) is enrolled as a voter in the electoral rolls of the relevant ward;
(d) is of good character and is not commonly known as one who violates Islamic Injunctions; has adequate knowledge of Islamic teachings and practices, obligatory duties prescribed by Islam as well as abstains from major sins; provided that these qualifications shall not apply to a person who is a nonmuslim, but such a person shall have a good reputation;
(e) has academic qualifications of not less than Matriculation or Secondary School Certificate or equivalent from a recognized institution, for contesting the election of a Nazim or a Naib Nazim; (0 has not been declared by a competent Court to be of unsound mind;
(g) is not in the service of the Federal, a Provincial or a Local Government or, any statutory body or a body which is controlled by any such Government or, in which any of such Government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from such service, a period of not less than six months has elapsed since his retirement;
(h) has not been dismissed, removed or compulsorily retired from public service on the grounds of moral turpitude;
(i) does not possess assets which are inconsistent with his declaration of assets or justifiable means, whether held in his own name or of the dependents or any other person or corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby the de facto control of such assets including their sale, transfer or pecuniary interest, is retained by him;
(j) has not been adjudged a wilful defaulter of any tax or other financial dues owed to the Federal, a Provincial or a Local Government or any financial institution, including utility bills outstanding for six months or more;
(k) has not been convicted by a Court of competent jurisdiction on a charge of corrupt practice involving moral turpitude or misuse of power or authority under any law for the time being in force;
(1) has not been sentenced to imprisonment for more than three months for an offence under any law and, a period of not less than five years has elapsed since his release; and in case of a member or a holder of a public office, has not been sentenced to imprisonment;
(m) has not failed to file the required return of election expenses or is not convicted for exceeding the limits of election expenses prescribed under the electoral laws;
(n) has not been declared an undischarged insolvent by any Court;
(o) does not engage in any transaction involving pecuniary interest with the Local Government of which he is a member;
(p) does not absent himself without reasonable cause from three consecutive meetings of the council of which he is a member; provided that a member shall not be disqualified if the absence was necessitated by a national emergency or force majeure;
(q) does not fail to attend a training course as required under, section 189 of this Ordinance;
(r) has not been and is not involved, in activities prejudicial to the ideology, interest, security, unity, solidarity, peace and integrity of Pakistan and its people and the good order and harmony of society; and
(s) has not used, directly or indirectly, for his election the platform, flag, symbol, affiliation and financial or material resources or support of a political, religious, ethnic or sectarian party, formation or organization.
(2) Whoever:-
(a) is found by the Chief Election Commissioner to have contravened the provisions of subsection
(1) shall stand disqualified from being a candidate for election to any office of the Local Governments for a period of four years; or
(b) having been elected as a member of a Local Government or is a holder of an elective office of the Local Government is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall cease forthwith to be an elected member or to. Hold the office of such member and stand disqualified from being a candidate for election to a Local Government for a period of four years."
"161. Removals.---(1) Where proceedings of disqualification under section 152 have been initiated on an application made by any person or by the Chief Election Commissioner on his own motion against a member, Nazim or Naib Nazim, the Election Commission or any authority authorized by it may issue a notice to show cause to a member, Nazim or, as the case may be, Naib Nazim, within a specified period as to why proceedings against him may not be taken for his -removal for breach of any of the provisions of section 152.
(2) Where the Election Commission or an authority authorised by it is not satisfied with the reply to the notice to show cause referred to in subsection (1) or any reply to the said notice is not filed within the period fixed by him, he may order for an enquiry in the matter and for that purpose appoint an Enquiry Officer.
(3) On the basis of enquiry held under subsection (2), the Election Commission or an authority authorised' by it may order the removal of a member, Nazim or, as the case may be, Naib Nazim; ' Provided that before an order of removal is passed, the member, Nazim or, as the case may be, Naib Nazim against whom enquiry proceedings are carried out shall be afforded a reasonable opportunity of being heard, including personal hearing if so requested."
' The learned counsel for the petitioner has urged that in case any person is found disqualified in terms of section 152 (ibid) the removal of such person is to be made in accordance with section 161 quoted above and for carrying out the purpose of sections 161 and 152 no other forum except the I election Commissioner or this Authority appointed by it shall have the jurisdiction to proceed with the election dispute. Thus in view of the situation emerging out of the Ordinance the Election Tribunal being nonexistent could not take cognizance of the election petitions filed by respondents and as such proceedings initiated by respondents 1 and 2 before the Election Tribunals be declared as without jurisdiction, without lawful authority and ineffective. .4. On the other hand, the learned counsel appearing on behalf of the respondents have vehemently argued that the instant writ petitions are misconceived as the impugned Election Tribunals are still validly existing in the eyes of law as the rules under which the Tribunals were constituted have been revived w,e,f, 13th day of August, 2000. In this regard it is argued that amendment has been made in section 196 of the Ordinance. In the circumstances, section 196 and the amending section, i,e, section 7 of the Ordinance are reproduced: "196..Repeal and Savings.---(1) On commencement of this Ordinance:-- ' the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ord. No,IV of 1979) shall be repealed;
(ii) the North-West Frontier Province Local Government Elections Ordinance, 2000 (N.-W.F.P. Ord. No, VI of 2000), shall be repealed; and
(iii) all 'Metropolitan Corporation' Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ord. No,IV of 1979), shall stand dissolved.
(2) North withstanding the repeal of the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ord. No, IV of 1979), and dissolution of all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ord.
No,IV of 1979), under subsection (1), subject . To sections 4 and 23 of the North-West Frontier Province General Clauses Act, 1956 (W.P. Act VI of 1956), all rules, regulations and bye-laws made under the .Repealed North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ord.
No,IV of. 1979), so far those are not inconsistent with the provisions of this Ordinance shall continue to be in force until amended or varied by the competent Authority: ' Provided .That, until otherwise decided by the Government, the Local Government Boards established under the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P.
Ord. No,IV of 1979), for the administration of officers and officials of the Local Council Service shall continue to function.
(3) Notwithstanding the repeal of North-West Frontier Province Local Government Elections Ordinance, 2000 (N.-W.F.P. Ord. No,VI of 2000), all Nazimeen, Naib Nazimeen, and members of the Local Governments elected under the said Ordinance shall be deemed to have been elected under this Ordinance and shall continue to hold their respective offices till the completion of their terms, unless earlier removed, resigned or recalled under this Ordinance."
"7. Amendment of section 196 of N.-W.F.P. Ord. XIV of 2001---In the said Ordinance, in section 196, for subsection (2), the following shall be substituted, namely;
(2) Notwithstanding the repeal of the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ord. IV of 1979), and the North-West Frontier Province Local Government Elections Ordinance, 2000 (N.-W.F.P. Ord. VI of 2000), and dissolution of all Metropolitan Corporations.
' Municipal Corporations, District Councils, Municipal Committees and Union- Council created under the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ord. No,IV of 1979), repealed under subsection (1), subject to sections 4 and 23 of the West Pakistan General Clauses Act, 1956 (W.P. Act VI of 1956),--
(a) all rules, regulations and bye-laws made under the said repealed Ordinance of 1979; and
(b) the rules made under the said repealed Ordinance of 2000. ' so far those are not inconsistent with the provisions of this Ordinance, shall continue to be in force in the former case and shall stand revived and be deemed to have been so revived with effect from the 13th day of August, 2000, in the latter case, and .Shall continue in force, until amended or varied by the competent Authority: ' Provided that until otherwise decided. By the Government, the Local Government Boards established under the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P.
Ord. IV of 1979), there administration of officers and officials of the Local Council Service shall continue to function."
5. The plain .Reading of the amending section, i,e, section 7 (ibid) shows that the rules mentioned in clause (b) shall be deemed to have been revived, w,e,f, 13th of August,2000. The election petition pertaining to Writ Petition No,1346 was filed on 20-8-2001. Thus on the revival of the relevant rules in view of section quoted above the Election Tribunals becathe alive and capable to function in accordance with the Election Rules of 2000. The effect was given to the revival of the relevant rules from 13th of August, 2000. Confronted with the amending section the learned counsel for the petitioners contended that no doubt the rules have been revived but there is a condition attached to the revival, i,e, "so far as those are not inconsistent with the provisions of this Ordinance".
Therefore, the inconsistency is decisive factor giving life to the Election Rules, 2000. It 'was contended that since the powers to decide the election dispute have been exclusively conferred upon the Election Commissioner or the Authority appointed by it, therefore, the functioning of the Tribunals would be inconsistent with the Ordinance and as such the Election Tribunals cannot be allowed to function being inconsistent with the Ordinance. The contention of the learned counsel for the petitioners appears to be misconceived because section 7 (ibid) postulates two categories of the rules, i,e,, (a) & (b). Category (a) includes "all rules, regulations and bye-laws . Made under the repealed Ordinance of 1979" while category "b" speaks about "the rules made under the repealed Ordinance of 2000". It has been categorically mentioned that so far those rules are not inconsistent with the provisions of this Ordinance shall continue to be in force. In the former case and shall stand revived and be deemed to have been so revised, w,e,f, 13th of August, 2000 in the later case. This categorization completely resolved the matter. The condition of inconsistency is confined and limited only to the category of rules covered by clause (a) while no such condition is attached with the rules covered by category (b). Hence it is immaterial to argue that the revival of the rules mentioned in category (b) are subject to the inconsistency with the Ordinance.
6. Even otherwise so far the functioning of the Election Tribunals is concerned it is in no manner in conflict or inconsistent with the Ordinance. Section 161 of the Ordinance speaks about the powers of the. Commission or any Authority authorized by it. Even in the Rules of 2000 it is the powers of Chief Election Commission to appoint Election Tribunals under rule 74 quoted at page 4 of this judgment.
7. Thus it is clear that the appointment and functioning of, the Election Tribunal is dependent upon powers of the Election Commission. All the Election Tribunals in the entire country were constituted by the Chief Election Commission of Pakistan through the Notification dated 6-7-2001 which is reproduced below:-- "NOTIFICATION ' Islamabad, the 6th July, 2001 ' No . .25(1)/2001-Law . In pursuance of the provisions of the Local Government Election Order, 2000 (No,8 of 2000), read with rule 74 of the B. N . P . S. Local Government Elections Rules, 2000, the Chief Election Commissioner of Pakistan has been pleased to appoint with immediate effect the following Judicial Officers to act as Election Tribunals for the areas specified against their names to receive, try and dispose of election petitions relating to Local Government elections for the districts falling in Schedule-IV."
The outcome of 'the discussion is that the Election Commission if can appoint an Authority under section 161 of the Ordinance it can equally appoint the Election Tribunals in exercise of its own powers as the Election Tribunal cannot function without the appointment of Election Commission.
Therefore, it follows that neither there is any condition of the inconsistency imposed by section 7 referred above for the revival of the rules nor the functioning of the Tribunal are in any manner inconsistent with the Ordinance.
8. Consequently, we find no force in these writ petitions which are dismissed with no orders as to costs.