The petitioner alongwith his co---candidate on the one hand, the respondent No.2 and his co- candidate on the other and one other panel contested elections to the seats of Nazim and Naib Nazim in U.C. No.217, Faisalabad. The petitioner and his co-candidate were, declared returned. It may be stated here that on 5-5-2001 the nomination papers filed by the petitioner were accepted by the Returning Officer rejecting the objection that he has not produced his Matriculation Certificate. The Returning Officer relied upon the Gazette notification produced by the petitioner whereby one Sardar Ali with Roll No.921 and passed the Secondary School Certificate Examination, 1963. Against this order an appeal was tiled which was dismissed by the D.R.O. On 10-5-2001. The matter was then brought to this Court by filing W.P. No.8304 of 2001 which was dismissed on 25-5- 2001.
2. After the declaration of election results, respondent No.2 and his co-candidate filed an election petition on 5-7-2001 against the petitioner and the other contesting candidates. The petition was entertained by a learned Election Tribunal at Toba Tek Singh. Inter alia, it was alleged that the petitioner was not qualified to contest the election for the said seat of Nazim as he was not a Matriculate and had not produced his Matriculation certificate. The petitioner filed a written statement.
3. Meanwhile, an application was filed by respondent No.2 before the learned respondent No. 1 on 3-9-2001. In this application it was alleged that Sardar Ali is not a Matriculate and the Gazette notification does not pertain to the petitioner. It was also stated that the petitioner has not been able to produce a Matriculation Certificate. Notice was issued to the petitioner who tiled a written statement on 12-10-2001. Vide order, dated 13-10-2001 learned respondent No. 1 proceeded to hold that the petitioner was not qualified as he has not acquired academic qualifications as required by section 14(1)(e) of PLGEO, 2000 and he has ceased to be an elected Member to hold the office of Nazim in U.C. No.217, Mansoorabad, Faisalabad. It was further provided that the petitioner stands disqualified for being a candidate for election to a Local Government for a period of four years.
4. Feeling aggrieved the petitioner filed W.P. No. 19952 of 2001 in this. Court. It came up on 6-11-2001 when the writ petition was admitted to hearing and the order of the learned respondent No.1 was suspended. At the same time the Election Tribunal was directed to decide the election petition before the year 2001 is out. On 22-1-2002 learned counsel for respondent No.2 stated at the Bar that the election petition stands decided by the Election Tribunal. The impression given was that the Election Tribunal has allowed the petition. Consequently, it was declared that the writ petition has fructified and the petitioner was advised to challenge the decision of the learned Election Tribunal.
On 31-1-2002 C.M. No.2-C/2002 filed by respondent No.2 came up for consideration in which a clarification was sought regarding the said order, dated 22-1-2002 as the learned D.R.O. Had sought the said clarification. A notice was issued to the opposite-party. On 6-3-2002 C.M. No.4-C of 2002 was filed by respondent No.2 seeking permission to withdraw the said C.M. No.2-C of 2002 The said C.M. No.2-C of 2002 was accordingly dismissed as withdrawn.
5. After withdrawing the said C.M. Respondent No.2 once again approached learned respondent No. 1 by filing an application on 9-2-2002. In this applicati6n a prayer was made that pursuant to the said order, dated 13-10-2001 of the learned respondent No. 1, respondent No.2 be declared to be a returned candidate. In the alternative it was prayed that fresh elections be ordered. Learned respondent No.1 vide order, dated 2-3-2002 proceeded to direct that fresh elections be held in accordance with law --for the seat of Nazim in U.C. No.217. Faisalabad.
6. Learned counsel for the petitioner contends with reference to the judgment to the case of Ch. Nazim Ahmed and others v. Chief Election Commissioner and 4 others (PLD 2002 SC 184) that the election of a returned candidate can only be challenged by filing an election petition before an Election Tribunal in terms of Rule 70 of the PLGE Rules, 2000 and when a matter has been so taken cognizance of by the Election Tribunal the learned Chief Election Commissioner would not be having jurisdiction to make an order in terms of section 14(2) of the PLGEO, 2000. Also contends that the proceedings before the Election Tribunal were got wound up by respondent No. 2 by misrepresentation and the result was that the petitioner stands disqualified without a trial or inquiry. Learned A.A.-G., on the other hand, states that there is no ambiguity about the powers reserved unto the learned Chief Election Commissioner in the Ordinance itself and the provisions of the Rules will have to give way to the said powers. Learned counsel for respondent No.2 contends that the powers of the learned Chief Election Tribunal have been lawfully invoked and consequently exercised by the said office within the parameters of law, According to the learned counsel sufficient material was available with the learned Chief Election Commissioner to declare the petitioner to be disqualified and to pass orders in terms of the said section 14(2) and consequently to order a fresh election.
7. I have gone through the records tiled with this writ petition as also the records of W.P. No.19952 of 2001, with the assistance of the learned counsel for the parties.
8. In order to provide for the conduct of Local Government Elections by the Chief Election Commissioner, the Chief Executive promulgated Order No.8 of 2000 (Local Government Elections Order, 2000). Under Article 2 of the said Order the Chief Election Commissioner was empowered to conduct Local Government Elections for the Provinces and for that purpose the Chief Election Commissioner shall have the power and authority to take all such steps and measures including preparation of electoral rolls and delimitation of Wards and to adopt such procedure, do such acts, pass such orders, issue such directions and take all such ancillary, incidental and consequential steps as he may deem necessary for effectively carrying out the said elections. Thereafter the Governor of Punjab acting under the instructions of the Chief Executive, -with reference to the said Order 8 of 2000 promulgated Punjab Local Government Elections -Ordinance, 2000 on 5-10-2000.
Further acting in exercise of powers conferred upon him under section 38 of the said Ordinance, the Governor notified the Punjab Local Government Elections Rules on 19-10-2000.
9. It was under the said instructions that the Local Government Elections were held in the Province of Punjab as per schedule issued by the learned Chief Election Commissioner. Under section 15 of the said Ordinance the elections were to be held on non-party basis and a person contesting elections to the Local Government was prohibited from committing several acts mentioned in section 5(1) of the said Ordinance. Subsection (2) of section 15 provided that in case the Chief Election Commissioner finds a person to have contravened the provisions of section 15(1) of the said Ordinance, he shall be disqualified from being a candidate for election to a Local Government for a period of four years by the C.E.C. And further having been elected as a Member of the Local Government if so found shall cease forthwith to hold the office of such Member and to stand disqualified from being a candidate from election to a Local Government for a period of four years.
Rule 70 of the said Rules provides that no election shall be called in question except by an election petition made by a candidate for that election.
10. On 5-7-2001 Punjab Local Government Elections (Amendment) Ordinance, 2001 was enacted by the Governor of Punjab. The amendments relevant to the present case were made by virtue of sections 4 and 5 of the said Amending Ordinance (X of 2001). Section 15 was substituted vide section 5 of the said Amending Ordinance. Clause (s) was added to section 14 regarding the matters relating to the prohibition on using a political, religious, ethnic or sectarian party platform at the same time subsection (2) was added to section 14 which reads as follows:-- "(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 a local Government for a period of four years; or (b)having been elected as a member of local Government or being a holder of an elected office of 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."
11. As a result of the said amendment the Chief Election Commissioner, in case he finds any one to have contravened the provisions of subsection (1) (of section 14) then the person shall stand disqualified as stated in the said subsection (2)(a) and in case a person having been elected as a member of Local Government or being a holder of elected office of Local Government is so found by the Chief Election Commissioner to have contravened the provisions of sub--section (1) of section 14 then the said person shall cease forthwith to be an elected member or to hold the office of such member and shall also stand disqualified from being a candidate for election to a Local Government for a period of four years.
12. Now coming to the said contention of the learned counsel for the petitioner in the light of the said legal position, I find that unlike the erstwhile Punjab Local Government Ordinance, 1979 the provisions for challenging an election has not been provided for in the main body of the said Ordinance V of 2000 itself. On the other hand, this provision has been made in the said Rules, 2000 framed under section 38 of Ordinance V of 2000. By means of the said amendment made by section 4 of Ordinance X of 2001 the powers of Chief Election Commissioner in the matter have begirt provided in the main Ordinance itself. There thus appears to be an anomaly in the said provisions of the Rules and the said provisions of Ordinance. However, under the recognised Rules of interpretation of Statute the anomaly is to be resolved in favour of the provisions of parent law itself i.e. The provisions of the said Ordinance (V of 2000) as it stands amended. I may further note her that in the said case of Ch. Nazir Ahmed and others being relied upon by the learned counsel the said provisions i.e. Section 14(2) of Ordinance V of 2000 were not before their Lordships.' Besides section 14(2) in its very nature relates only to the matter of qualification or disqualification prescribed in section 14(1) of the said Ordinance while the scope of the election petition is much larger as would be evident from the provisions of Rules 80, 81, 82, 83 and 84 of the said Rules of 2000. I, therefore, do find that the learned Chief Election Commissioner has the power to act under the said section 14(2) of the Ordinance V of 2000 and to pass order it accordance therewith. The matter, however, does not end here. A bare reading of section 14(l) of Ordinance V of 2000 read with subsection (2) as added by Ordinance X of 2001 would show that the finding to be recorded by the learned Chief Election Commissioner to conclude as to whether or not a person has contravened any of the provisions of section 14(1) is primarily a finding of fact. A person is to be found by the Chief Election Commissioner to have contravened the provisions of the said section 14(i) before the ceases forthwith to be an elected member or to hold the office of such member and shall stand disqualified from being a candidate for an election for a period of four years. Now the order, dated 13-10-2001 of learned Chief Election Commissioner contains a reference to the prayer made in the application filed by respondent No.2 and the reply filed by the petitioner. There is then a reference to the contentions of the learned counsel for respondent No.2 based on an attested copy of an inquiry report by one Mian Dawood Rana. Thereafter is the discussion as to the powers of the learned Chief Election Commissioner under the said new dispensation and then abruptly it is stated that the petitioner was not qualified and has not acquired the academic qualifications as required by section 14(1) (c) of Ordinance V of 2000. I have already stated above that the application was filed on 3-9-2001. The notice was issued for 13-10-2001. The reply was filed on 12-10-2001 and on 13-10-2001 the said decision was made.
13. In my humble opinion there has been no trial and no inquiry. The petitioner was not even confronted with the said copy of the inquiry report. Needless to state that a report is only an opinion of the person making the inquiry and the minimum requirement is that the person must appear in the witness-box and subjected to cross-examination.
14. The order, dated 2-3-2002 is only a corollary to the said order, dated 13-10-2001.
15. Since primarily under the said Order No.8 of ,2000 the learned Chief Election Commissioner has been vested with all powers in the matter of said elections. I deem it proper to remand back this case to the learned Chief Election Commissioner, who will before proceeding further in the matter devise a procedure for dealing with such application or proceedings as are envisaged by section 14(2) of Ordinance V of 2000 keeping in view the fact that a finding of fact is required to be recorded and such finding requires evidence and its rebuttal. The impugned orders are accordingly set aside. The writ petition is allowed in the above terms. A copy of the order be remitted to the office of the learned Chief Election Commissioner.