' MUHAMMAD NAWAZ ABBASI, J.---The Civil Appeals bearing Nos.583 and 592 of 2002 have been preferred against the consolidated judgment, dated 28-2-2002 in W.P. 906 of 2002 and W.P. 1714 of 2002, and Civil Appeal No,1191 of 2002 against the judgment dated 13-8-2002 in W.P. 12660 of 2002 passed by a learned Single Judge of Lahore High Court, Lahore. The Civil Appeal No,751 of 2002 has arisen out of judgment, dated 17-5-2002 passed by the High Court of Sindh at Karachi in Constitution Petition No,357 of 2002. The above four appeals involving common question of law and facts, are proposed to be disposed of through this single judgment.
2. Mian Ahmed Saeed appellant and Sardar Muhammad Shoab, respondent No,8 in Civil Appeal No,583 of 2002, hereinafter called 'the appellants', contested election as joint candidates in one panel for the seat of Naib Nazim and Nazim respectively of Tehsil Council, Chunian, District Kasur and being successful were notified as returned candidates. Malik Abdul Waheed and Mian Muhammad Rashid, respondents Nos.2 and 3 in the above appeal and appellants in C.A. 592 of 2002, hereinafter called 'the respondent', during the scrutiny of the nomination papers by the Returning Officer by challenging the genuineness of the matriculation certificate produced by Sardar Muhammad Shoab raised an objection that he was not qualified to contest the election.
The objection was rejected by the Returning Officer vide order, dated 22-7-2001 and further the appeal preferred by the respondents against the order of Returning Officer was dismissed by the District Returning Officer Vide order, dated 25-7-2001. The respondents challenged the acceptance of the nomination papers of Sardar Muhammad Shoab by the Returning and District Returning Officer by way of filing a Constitution Petition bearing No,14275 of 2001 in the Lahore High Court, Lahore, and pending disposal of the said petition election was held. In the election the panel of appellant and respondents having secured 279 and 257 votes obtained first and second position respectively but none of the panel could get more than 50% of the total votes, therefore, the election was declared run off and in the contest in run off election, the panel of the appellants was declared successful. The respondents challenged the election of the appellants through an election petition and as a result thereof, the High Court, with the consent of parties, converted Writ Petition No,14775 of 2001 into an election petition and sent the same to the Election Tribunal for its disposal with the election petition already pending before the Tribunal. The Election Tribunal on conclusion of the proceedings, allowed the election petitions vide judgment, dated 11-12001 and held that the matriculation certificate produced by Sardar Muhammad Shoab during the scrutiny of nomination papers was forged and his nomination was invalid. The Tribunal while declaring the election of both the candidates in the panel void, directed for holding the fresh election. The appellant (Mian Ahmed Saeed) and his joint candidate namely, Sardar. Muhammad Shoab questioned the legality of the judgment of the Tribunal by way of filing the separate Writ Petitions bearing Nos.906 of 2002 and 21122 of 2001 in the Lahore High Court, Lahore and respondents Nos.2 and 3 (Malik Abdul Wahid and Mian Muhammad Rashid) filed a joint Writ Petition bearing No,174 of 2002 wherein they sought direction for declaring them as returned candidates for the seat of Nazim and Naib Nazim and a separate Writ Petition bearing No,14275 of 2001 was also filed by Mian Muhammad Rashid for the same relief. The Writ Petition No,21122 of 2001 was dismissed vide judgment, dated 30-11-2001 and the remaining three Writ Petitions bearing No,906 of 2002, Writ Petition No,174 of 2002 and Writ Petition 14275 of 2001 were disposed of by a learned Single Judge of the Lahore High Court, Lahore, through the consolidated judgment, dated 28-2-2002 impugned in C.A. 583 of 2002 and 592 of 2002. The leave was granted in these appeals vide orders, dated 3-4- 2002 and 16-4-2002 respectively but the special leave to appeal sought by Sardar Muhammad Shoab in C.P. No,1004-L of 2002 against the same judgment, was refused. The leave granting orders in the above two, appeals are reproduced hereunder:- C.A. 583 of 2002 "Leave is granted to consider whether if Nazim is declared to be disqualified to contest election in an election petition, the election of the petitioner as Naib Nazim could also be declared void being a substantial question of law of public importance.
(2) Subject to notice till the next date of hearing, operation of the judgments of the Tribunal, dated 11-1-2002 and the impugned judgment, dated 28-2-2002 qua Mian Ahmad Saeed, Naib Nazim, shall remain suspended.
(3) Since prima facie, it will not be possible to hold election of the post of Nazim, under the existing law, therefore, this appeal shall be fixed in the second week of May, 2002. Learned Advocate- General, Punjab shall also appear to assist the Court."
C.A. 592 of 2002 ' "Leave has already been granted in C.P. No,1005-L of 2002 arising from the same judgment of the Election Tribunal to consider whether where Nazim is held to be disqualified from being candidate on account of he being not matriculate, the election of Naib Nazim would also automatically be adversely affected.
(2) The petitioner contested the election of the post of Nazim with Naib Nazim in panel and his case was that after the election of his opponent having been declared to be invalid on account of the above reasons, he should have been declared as elected as a. Returned candidate whereas the Election Tribunal has ordered reelection.
(3) Leave is granted to consider whether the petitioner should have been considered as a returned candidate.
(4) To be heard alongwith the appeal arising from C.P. No,1005-L of 2002."
3. In Civil Appeal No,1191 of 2002 the appellant namely Hamiullah Khan and Allah Bakhsh contested election as joint candidates in a panel for the seat of Nazim and Naib Nazim, respectively, from Union Council No,57, Tehsil Kamalia, District Toba Tek Singh. The appellants were in contest with the panels of respondents Nos.2 and 3 and respondents Nos.4 and 5 respectively and in the election were declared successful. However, their election was challenged by respondents Nos.2 and 3 who secured second position in the election by way of filing an election petition before the Election Tribunal constituted under Punjab Local Government Elections Rules, 2000 for Tehsil Kamalia, District Toba Tek Singh. The sole ground urged in the election petition for declaring the election of appellants void was that Allah Bukhsh appellant No,2 in the appeal was guilty of concealment of the assets in the list of assets attached with the nomination papers and therefore, he stood disqualified to contest the election. 'The Tribunal in the light of the pleadings of the parties and evidence brought by them on record, held that Allah Bakhsh (appellant) was suffering from disqualification under section 14(1) of Punjab Local Government Elections Ordinance, 2000 read with rule 16(4) of Punjab Local Government Elections Rules, 2000 and while holding the nomination of the appellants as joint candidates invalid, de-seated them and declared the next panel (respondents Nos.2 and 3) successful. The appellants invoked the Constitutional jurisdiction of the Lahore High Court in the matter through the Constitution Petition bearing No,12660 of 2002 and a learned Single Judge of the High Court, vide judgment, dated 13-2-2002 impugned in the present appeal, dismissed the writ petition. Leave was granted in this appeal vide order, dated 30-9-2002 as under:- ' The election of the petitioner No,2 was declared to be invalid on the ground that in the schedule of assets declared by him before the election, he did not include certain piece of land which he had inherited from his forefathers and not on the ground of any malpractice or corruption. The election of both the petitioners as a panel was declared to be invalid and instead the respondents' panel was declared successful.
(2) Learned counsel for the petitioners submitted that non-inclusion of certain property in the declaration made by petitioner No,2 was not such a matter on which his election could be declared invalid. Apart from this, he says that this was not such a disqualification to which principle of throw away of votes could be applied. He also maintained that even if petitioner No,2 was not validly elected, the election of petitioner No,1 who was not responsible for the personal act of petitioner No,2, his election could not be declared invalid.
(3) On the question whether the election of panel of Nazim and Naib Nazim as a whole should have been declared invalid in case one was found to be guilty of malpractice is already under consideration in C.P. No,1005-L of 2002 in which leave has been granted.
(4) Leave is granted in this case also. To be heard alongwith the said and other connected appeals.
(5) During the pendency of the appeal, operation of the order, dated 6-7-2002 of the Election Tribunal and the impugned judgment, dated 13-8-2002 of the High Court shall remain suspended in that the petitioners shall continue to perform the functions of Nazim and Naib Nazim."
4. In Civil Appeal No,751 of 2002, Zubair Ahmed Chandio and Muhammad Ahmed Khan appellants, contested election as joint candidates in a panel in the local bodies for the office of Nazim and Naib Nazim Union Council No,6, Gazdarabad, Karachi South and by securing 2488 votes, defeated their opponents. However, an objection to the nomination of Muhammad Ahmed Khan appellant was raised during the scrutiny of nomination papers that he being defaulter of Habib Bank Limited was disqualified to contest the election. The objection was rejected by the Returning Officer and the appeal preferred by respondent No,2 (Muhammad Zahid Qureshi) against the acceptance of the nomination papers of appellant No,2 was also dismissed by the District Returning Officer vide order, dated 13-6-2001. The respondent No,2 being not satisfied with the order of Returning and District Returning Officer filed a Constitution petition bearing No,D-1215 of 2001 in the High Court of Sindh at Karachi which was allowed by a Division Bench of the High Court vide judgment, dated 20- 6-2001 wherein it was held that Ahmed Khan, . Appellant having been adjudged as wilful bank defaulter was suffering from disqualification under section 14(j) of Sindh Local Government Election Ordinance, 2000. The appellant assailed the above judgment before this Court through C.P.
No,438-K of 2001 and this Court vide order, dated 26-6-2001 passed in C.M.A. No,166-K of 2001 while suspending the operation of the judgment of the High Court allowed the appellants to contest the election and they by securing highest votes, succeeded in the election. The respondent No,5 (Muhamamd Zahid Qureshi) challenged the election of the appellants through air election petition and pending adjudication of the said petition before the Election Tribunal, this Court vide order, dated 5-10-2001 disposed of Civil Petition No,438-K of 2001 with the observation that the parties may raise all pleas available to them before the Tribunal. The Election Tribunal having dilated upon the question relating to the disqualification of appellant No,2 on account of his being wilful defaulter of Habib Bank, allowed the election petition vide order, dated 28-2-2002 on the ground that nomination of the appellants as joint candidates for the seat of Nazim and Naib Nazim of Union Council 6, Karachi South, was invalid. The Tribunal while declaring the election of the appellants as joint candidates void, directed the respondent No,5 (Muhammad Zahid Qureshi) and his joint candidate be notified as elected. The appellants assailed the judgment of the Election Tribunal in the High Court of Sindh at Karachi in a Constitution Petition No,357 of 2002 but the same was dismissed vide the judgment impugned in the present appeal. The leave was granted in this appeal vide order, dated 22-5-2002 as under:- ' On an identical question being raised through the instant petition, leave to appeal was granted by this Court on 3-4-2002 in C.P. 1005-L-2002 (C.A. 583-2002). The precise question raised in this petition is that if in terms of election petition, election of `Nazim' is declared to be void, what should be the fate of `Naib Nazim' because under the existing law, he also loses his seat. This undoubtedly is a question of public importance, therefore, we would grant leave to appeal in this petition for leave to appeal. Operation of the order impugned herein shall remain suspended meanwhile'."
5. The elections of the local bodies in all the four Provinces were held in the supervision of Chief Election Commissioner of Pakistan under the Local Government Election Ordinances, 2000 and the Rules framed thereunder. The elections for the seat of Zila Nazim, Naib Zila Nazim, Town Nazim, Naib Town Nazim, Tehsil Nazim and Naib Tehsil Nazim, Union Council Nazim and Naib Union Council Nazim were held on the basis of joint candidacy and the joint candidates in the panel securing highest position with more than 50% of the total votes would be declared elected. If the panel securing first position has not been able to get more than 50% of the total votes, the election would be declared run off in which the two panels securing first and second position would contest the election and the panel securing highest number of votes in the run off election would be declared elected. The election of a returned candidate could be called in question by any contesting candidate through an election petition before the Election Tribunal appointed under the Local Government Elections Rules, 2000 framed under Local Government Elections Ordinance, 2000 on any ground mentioned in the rules, including the invalidity of nomination of a returned candidate.
The Election Tribunal in exercise of its powers under the rules may, upon the conclusion of the proceedings in the election petition, dismiss the petition, declare the election of returned candidate void or declare the petitioner in the election petition or any other contesting candidate to have been duly elected or declare the election as a whole void. The Tribunal on coming to the conclusion that the nomination of returned candidate was invalid or he was not qualified to contest the election and hold the office of Nazim or Naib Nazim or that the election of the returned candidate was procured or induced by illegal practice, could declare his election void. The law made applicable to the election of the local bodies provided that election for the seat of Nazim and Naib Nazim shall be held on the basis of joint candidacy and in case of rejection of nomination of either of Nazim or Naib Nazim in a panel, the nomination as a whole for both the joint candidates shall stand rejected. In the light of the Scheme of law explained above, the following essential questions involved in the present appeals would require adjudication:--
(a) Whether the provision in the , Local Government Election Ordinances, 2000 relating to the joint candidacy and the rejection of nomination papers of both the Nazim and Naib Nazim, as joint candidates, in the panel on rejection of nomination of either of them is not violative of the right of representation of an individual?
(b) Whether the Tribunal while declaring the election of a returned candidate void on the ground that his nomination was invalid, can declare the election of joint candidates as a whole void and further this rule after the election would become inoperative to de-seat the joint candidates in the election?
(c) Whether the Tribunal after declaring the election of the joint candidates void must declare the next panel securing highest votes in the election was elected, notwithstanding the right of franchise of the voters?
(d) What is the effect of repeal of Punjab and Sindh Local Government Election Ordinances, 2000 by Punjab and Sindh Local Government Ordinances, 2001 promulgated on 14-8-2001?
6. The concept of joint candidacy was introduced in the local bodies election to educate the spirit of collective efforts and joint responsibility. The election on the basis of joint candidature and rule of rejection of nomination of joint candidates as a whole is based on the doctrine of sinker which is a rule of pre-emption law. This rule is that if a person having superior right of pre-emption joins himself with a stranger or an inferior pre-emptor, he shall lose his superior right of preemption and is not allowed even to retain his own share in the purchase if a suit for pre-emption is brought against the sale. The salient feature of the system of joint candidacy is that the candidates for the seats of Nazim and Naib Nazim in the local bodies must contest the election as joint candidates and rejection of nomination of any one of the candidates, is rejection of nomination of both the joint candidates. Therefore they must possess the statutory qualifications individually and collectively on the nomination day and lack of any such qualification of any one would invalidate their nomination jointly. The joint candidates for the seat of Nazim and Naib Nazim must share the fate of election with each other in the matters of disqualification, invalid nomination and the result of election in the form of success or defeat. In the system of joint candidacy, the candidates file their nomination papers individually but the validity or invalidity of their nomination is essentially determined jointly and in consequence, to the rejection of nomination of any one for any disqualification, the nomination of other shall automatically stand rejected and in the light of same rule of joint responsibility their election can be declared void as a whole on the ground that on the nomination day their nomination was invalid. The disqualification attached with the candidate on the nomination day would not disappear after the election, therefore, the defect of invalid nomination being not consequently, curable, the view that the Election Tribunal would not be competent to declare the election of the joint candidates as a whole void on a ground on the basis of which their nomination as a whole could be rejected, would be based on misconception of law and being contrary to the legislative intent, would nullify the concept of joint candidacy.
7. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court, learned counsel for the appellants in Civil Appeal No,583 of 2002 has raised the following contentions:--
(a) The verdict given by the Election Tribunal that Sardar Muhammad Shoab was not qualified to contest the election was contrary to the record and was based on misconception of law.
(b) The finding of the Tribunal that the matriculation certificate of Sardar Muhammad Shoab was forged, would not provide a valid ground to invalidate the candidature of the joint candidate in the panel and declare his election also void in the election petition.
(c) Notwithstanding the notoriety of disqualification of a candidate in the panel, the right of franchise of voters to the extent of joint candidate would be protected and by applying the principle of thrown away of votes, the next panel securing highest votes could not be declared elected.
8. Learned counsel argued that under the Local Government Election Ordinance and Rules, 2000, the disqualification of any one of the candidate in the panel shall definitely affect the nomination of the joint candidate in the said panel but after the election the returned candidates would be responsible in their individual capacity and would not face the consequence of the disqualification of each other and the election of the joint candidates as a whole cannot be declared void by the Election Tribunal Learned counsel while distinguishing a candidate from a returned candidate, submitted that a candidate would definitely lose the right of contesting the election due to associating himself with a candidate suffering from a statutory disqualification but after the election this rule of joint candidacy would become redundant and the candidates who contested election jointly would no more carry joint responsibility. In nutshell, it has been argued by the learned counsel that after the election, the concept of joint candidacy would come to an end and the Tribunal on the basis of disqualification or invlaid nomination of a candidate could not declare the election of joint candidates as a whole void.
9. Mr. Najamul Hassan Kazami, learned Advocate Supreme Court appearing on behalf of Malik Abdul Wahid and Mian Muhammad Rashid, respondents Nos.2 and 3 in C.A. No,583 of 2002 and appellants in C.A. No,592 of 2002, has contended that the above-named respondents being contestants in the run off election, would be entitled to be declared elected but the Tribunal without adhering to the correct legal position and exercising the jurisdiction in proper manner, directed for holding the fresh election. The learned counsel added that the disqualification of Sardar Muhammad Shoab to contest the election was not unknown and the voters despite having the knowledge of his disqualification, voted for him, therefore, their right of franchise would not be prejudiced and in any case the respondents have been wrongly denied the legitimate right of representation of the constituency.
10. Mr. Kamal Azfar, Advocate Supreme Court, learned counsel for the appellants in C.A. No,751 of 2002 has contended that the appellants being joint candidates in the election were unseated in the election petition filed by the defeated candidates on the ground that Zubair Ahmed Chandio appellant No, 1, being the bank defaulter was not qualified to contest the election and that the Tribunal while declaring the election of appellants void, declared the next panel securing second position in the election successful. Learned counsel argued that no doubt appellant No,1 was extended financial facility by the Habib Bank Limited but he was not adjudged as willful defaulter for non-payment of loan in terms of agreement rather the bank obtained an ex parte decree against him on technical ground which would not be an evidence of wilful default and in any case the appellant having discharged his liability in full and final settlement of the outstanding dues much before the nomination day obtained a clearance certificate from the bank. The learned counsel submitted that on the satisfaction of ex parte decree, the alleged disqualification if any, would automatically disappear, but the Tribunal by misconstruing the provisions of section 16 of the Sindh Local Government Election Ordinance, 2000 read with rule 16(3)(ii) and rule 18 of the Sindh Local Government Elections Rules, 2000, de-seated the appellants and further the learned Judges in the High Court by upholding the view taken by the Tribunal, in the Constitution petition committed the same illegality. The learned counsel next argued that in a case in which the disqualification of a candidate was not known by the voters cannot be defeated by throwing away their votes, therefore, the next panel securing highest votes in the election could not be declared elected. The learned counsel emphasized that after the election, the rule of rejection of nomination of the joint candidates as a whole on account of the disqualification of a candidate in the panel would no more be enforceable, therefore, the order of declaring the election of joint candidates as a whole void, would be illegal and without jurisdiction.
11. Allah Baksh appellant No,2 in Civil Appeal No,1191 of 2002 alongwith his joint candidate was de- seated by theTribunal in an election petition on the ground that he was guilty of concealment of certain properties owned by him in the schedule of assets attached with his nomination papers and in consequence thereto, he earned a disqualification under section 14(1) of the Punjab Local Government. Elections Ordinance, 2000 read with rule 16(4) of the Elections Rules, 2000 to contest the election and hold an elective office in the local bodies. Mr. Amir Alam Khan, Advocate Supreme Court, learned counsel for the appellant has contended that the objection relating to the concealment of the assets in the declaration of assets was not raised during the scrutiny of nomination papers or at any subsequent stage till the completion of process of election and for the first time, it was taken in the election petition, therefore, the same would not provide a valid ground for declaring the election of the returned candidate void. The learned counsel with vehemence argued that the appellant declared his total assets in the schedule of assets attached with nomination papers without any concealment but unfortunately he omitted to give the description of the agricultural land, owned by him with particular entries in the revenue record which was nothing but mere a clerical mistake but the Tribunal as well as the learned Single Judge in the High Court through misreading of record, while holding the appellant guilty of concealment of assets, declared him disqualified to contest the election. Learned counsel submitted that the alleged disqualification would not provide a valid ground to declare the election of the joint candidates as a whole, void, and further such technical disqualification being not known to the voters, they could not be deprived of their right of franchise by declaring the panel securing second position in the election as elected. The learned counsel in addition to the arguments advanced in the connected appeals, submitted that the joint candidates after acquiring the status of returned candidates would be recognized in their individual capacity, therefore, the order of declaring the election of the joint candidates as a whole void, would be coram non judice.
12. Learned counsel appearing on behalf of respondents, on the other hand, has argued that the learned Judge in the High Court having dilated upon the factual controversy in detail in the light of evidence brought on record concluded that a considerable portion of agricultural land owned by the appellant was not shown in declaration of assets filed by him with the nomination papers and that submission of an inconsistent declaration to the assets actually possessed by a candidate would make the nomination of such candidate invalid by virtue of the provision of section 14(j) of Punjab Local Government Elections Ordinance, 2000 read with rule 16(4) of the Punjab Local Government Elections Rules, 2000 and he shall be disqualified to contest the election and hold the elective office. The learned counsel argued that the concurrent findings of the fact on the question relating to the concealment of assets in the schedule of assets cannot be interfered with unless it is shown that the finding was suffering from the defect of misreading or non-reading of the evidence on the record and further leave in this appeal was granted only to consider the effect on the election of a returned candidate if the election of his joint candidate is declared void in the election petition".
13. The questions of law raised in these appeals, being of public importance would need examination in the light of the relevant provisions in the Punjab and Sindh Local Government Election Ordinances, 2000, hereinafter called 'Election Ordinance' and the Punjab and Sindh Local Government Elections Rules, 2000, hereinafter called "Elections Rules". The Election Ordinance, 2000 in both the Provinces were repealed by the "The Punjab Local Government Ordinance, 2001 and Sindh Local Government Ordinance, 2001". The elections for the seat of Nazim and Naib Nazim in the local bodies in both the provinces have been held on the basis of joint candidacy as provided in section 16 of the Election Ordinance in the following manner:-- "16. Joint candidacy and elections.-(1) A Zila Nazim and a Naib Zila Nazam or a Town Nazim and a Naib Town Nazim or a Tehsil Nazim and a Naib Tehsil Nazim or a Union Nazim and a Naib Union Nazim shall contest election in their respective wards as joint candidates.
(2) The Nazim and the Naib Nazim of a District Government or a Town Government or a Tehsil Government securing as joint candidates more than 50% of votes shall be declared elected.
(3) In case a Zila Nazim and a Naib Zila Nazim or a Town Nazim and a Naib Town Nazim or a Tehsil Nazim and a Naib Tehsil Nazim do not secure more than 50% of the total votes of the members of the union councils in the respective district, tehsil/town, there shall be held a fresh election, within one week of the first election, in which the joint candidates for such offices securing the highest and second highest number of votes shall be contestants, and the joint candidates securing the highest number of votes in the fresh election shall be declared elected."
14. In the system of joint candidacy, the candidates for the seat of Nazim and Naib Nazim in the local bodies must contest election as joint candidates and to win the election, it is necessary to secure more than 50% of the total votes in the constituency and if none of the panel of joint candidates succeeds in achieving the target, it shall be declared run off election and in case of run off election, the Chief Election Commissioner shall notify the programme for fresh election in which the joint candidates securing the first and second position, are the contestants and the panel securing first position in the fresh election is declared successful.
15. The provision of section 16 in the Punjab and Sindh Local Government Election Ordinances, 2000 has been recast in Punjab and Sindh Local Government Ordinances, 2001 in section 154, in the following manner:- "154. Joint candidacy and election.---(1) A Zila Nazim and Naib Zila Nazim, a Tehsil Nazim and Naib Tehsil Nazim, a Town Nazim and Naib Town Nazim and a Union Nazim and Naib Union Nazim shall contest election in their respective electoral wards as joint candidates: ' Provided that, on occurrence of a casual vacancy, a candidate for the office of a Nazim or Naib Nazim shall contest the election for such office in his individual capacity.
(2) Union Nazim and Naib Union Nazim securing the highest number of votes as joint candidates shall be declared elected.
(3) The Zila Nazim and Naib Zila Nazim, a Tehsil Nazim and Naib Tehsil Nazim, and a Town Nazim and Naib Town Nazim securing as joint candidates more than fifty per cent. Of votes shall be declared elected.
(4) In case a Zila Nazim or Naib Zila Nazim, or a Tehsil Nazim and Naib Tehsil Nazim, or a Town Nazim and Naib Town Nazim do not secure more than fifty per cent. Of the total votes of the members of the Union Councils in the respective district, tehsil or, as the case may be, there shall be held a fresh election within one week of the first election for which the joint candidates securing the highest and the second highest number of votes in the first election shall be contestants, and the joint candidates securing the highest number of votes in the fresh elections shall be declared elected."
16. The procedure for filing the nomination papers by the candidates is provided in rule 16 of the Election Rules, 2000 which provides as under:-- "16. Nomination for elections.-(1) The Returning Officer shall, as soon as may be, after the publication of the election programme under rule 13, give a public notice in Form II inviting nominations and specifying the time before which and the place at which nomination papers shall be received by the Returning Officers.
(2) Any elector of an electoral ward may propose or second the name of any duly qualified person to be a candidate for becoming a member for that ward.
(3) Every nomination of a candidate for becoming-
(i) a member in a union council shall be made by a separate nomination paper in Form III(A), which shall be signed by both the proposer and the seconder and shall, on solemn affirmation made, be signed by the candidate;
(ii) a Nazim and a Nail) Nazim of a union council, as joint candidates, shall be made by a separate nomination paper in Form III (B) and shall be signed by both the proposer and seconder and shall, on solemn affirmation made, be signed by both the candidates contesting election as joint candidates;
(iii) a Nazim and a Naib Nazim of a Zila Council or a Tehsil/Town Council, as joint candidates, shall be made by a separate nomination paper in Form III (C) and shall be signed by both the proposer and seconder and shall, on solemn affirmation made be signed by both the candidates contesting as joint candidates:
(iv) a Member of a Zila/Tehsil or Town Council against seats reserved for Women, Peasants and Workers and Minority Communities shall be made in a separate nomination paper in Form III(D) and shall be signed by both the proposer and seconder and shall, on solemn affirmation made be signed by the candidates.
(4) Every nomination paper shall be accompanied by a declaration of assets of the candidate in Form XIX, which 'shall be open to inspection by every voter of the local area concerned.
(5) Every nomination paper shall be delivered by the candidate or his proposer or his seconder to the Returning Officer who shall acknowledge the receipt of the nomination paper specifying the date and time of receipt.
(6) A person may be nominated in the same electoral ward by more than one nomination paper.
(7) If any person subscribes as a proposer or a seconder to more than one nomination paper, all such nomination papers, except the one received first by the Returning Officer, shall be void.
(8) The Returning Officer shall assign a serial number to every nomination paper and endorse thereon the name of the person presenting it, and the date and time of its receipt, and inform such person of the, time and place at which he shall hold scrutiny.
(9) The Returning Officer shall cause to be affixed at some conspicuous place in his office a notice in Form IV of every nomination paper received by him containing the particulars of each candidate and the names of the proposer and seconder as shown in the nomination paper for general information and inviting objections or suggestions from the voters of the local area within such time as may be specified in the election programme.
(10) The objections or suggestions, if any, received under sub- rule (9) shall be taken into consideration at the time of scrutiny of nomination papers."
17. The nomination papers for the seat of Nazim and Naib Nazim of the Union Council, Zila Council and Town Council would be filed by the joint candidates in the manner as provided in the ibid rule and the scrutiny of nomination papers was to be conducted in the manner as provided in rule 18 of the Election Rules as under:- "18. Scruinty.-(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.
(3) The Returning officer, may, either suo motu or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that--
(i) the candidate is not qualified to be elected as a member;
(ii) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(iii) any provision of rule 16 or rule 17 has not been complied with; or
(iv) 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.
(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."
18. The nomination of a candidate could be rejected by the Returning Officer on any ground mentioned in sub-rule (3) of -the above rule 18 and in case of rejection of nomination of a candidate either for the seat of Nazim or Naib Nazim as joint candidates, the nomination as a whole for both the joint candidates would stand rejected.
19. The procedure for filing an election petition before the Election Tribunal appointed by the Chief Election Commissioner and its trial in the manner of the trial of the civil suits by the Civil Court under Code of Civil Procedure is given in Chapter X of the Election Rules. The Election Tribunal, upon conclusion of the proceedings in the election petition may pass any order in terms of Rules 80 and 81 of the Punjab and Sindh Elections Rules, 2000 respectively which provided to the following effect:--- ' Rule 80 of Punjab Local Government Elections Rules, 2000: Rule 81 of Sindh Local Government Elections Rules, 2000: "Decision of the Tribunal.- The Tribunal may upon the conclusion of the trial of an election petition make an order--
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting' candidate to have been duly elected;
(d) declaring the election as a whole to be void."
20. In case of recrimination, the procedure provided in Rule 79 of Punjab Election Rules and rule 80 of Sindh Elections Rules would be followed:-- ' Rule 79 of Punjab Local Government Election Rules; ' Rule 80 of the Sindh Local Government Election Rules: "Recrimination where seat is claimed.--(1) Where in an election petition a declaration is claimed that candidate other than the returned candidate has been duly elected, the returned candidate or any other party may produce evidence to prove that the election of such other candidate would have been declared void had he been the returned candidate and had a petition been presented calling his election in question: ' Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he or it has within fourteen days next following the commencement of the trial, given notice to the Tribunal of his intention so to do and has also deposited the security referred in rule 70.
(2) Every notice referred to in sub-rule (1) shall be accompanied by statement of the case, and all the provisions relating to the contents, verifications, trial, procedure of an election petition or to the security deposits in respect of an election petition shall apply to such a statement as if it were in election petition."
21. The election of a returned candidate can be declared void by the Election Tribunal on any ground mentioned in rule 81 of the Punjab and rule 82 of the Sindh Local Government Elections Rules, 2000. The ibid rules provide as under:-- ' Rule 81 of Punjab Local Government Elections Rules, 2000: Rule 82 of Sindh Local Government Elections Rules, 2000: "Ground of declaring election of returned candidate void.-(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that--
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or 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 practices; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election against or by any other person with the connivance of the candidate or his authorized agent.
(2) The election of a returned candidate shall not be declared void on the ground-
(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or
(b) that any of the other contesting candidate was, on the nomination day, not qualified for or was disqualified from, being elected as a member."
22. The Tribunal under the above rules is empowered to declare the election of a returned candidate void if his nomination was invalid or on the nomination day, he was not qualified or was disqualified to be elected as Member or Nazim or Naib Nazim or that the election of returned candidate was procured or induced by any corrupt or illegal practice.
23. The plain reading of the above provisions in the Election Ordinance and the Rules would reveal the distinguishable features of the election of local bodies as under:--
(a) The election for the seat of Nazim and Naib Nazim must be contested in the panels as joint candidates following the rule of joint candidacy;
(b) the rejection of nomination of any one of the joint candidates, shall be rejection of nomination of both the candidates;
(c) the election of a returned candidate can be declared void on the M ground that his nomination was invalid or he was suffering from a disqualification on the nomination day;
(d) the election of local bodies is based on the concept of joint responsibility and the pre-election disqualification invalidating' the nomination of a candidate shall be a valid ground for declaring the election of the returned candidate void in the election petition;
(e) the joint candidates must jointly face the consequence of the disqualification of any one of them and both shall equally be affected by the result of election petition.
24. The questions relating to the rejection of nomination papers of the joint candidates and declaring their election as a whole void in the election petition being interlinked, are discussed together. The expression 'returned candidate' used in Chapter X of the Election Rules if is read in context to section 16 of Elections Ordinance and rule 18 of the Elections Rules read with section 154 of Punjab and Sindh Local Government Ordinances, 2001, it shall connote the meanings of 'returned candidates'. It is manifest from the statutory provisions referred above that the order of Tribunal declaring the election of a returned 'candidate void due to the defect of invalidity of nomination would not be confined to an individual candidate, rather the nomination of the joint candidates in the panel becoming invalid, the order would be applicable to them jointly This is correct that subsequent to the election, a returned candidate certainly would not be responsible for the acts and deeds of his companion not related to the election and as holder of elective office would definitely be answerable to his own acts and deeds but on the basis of rule of collective responsibility in the system of joint candidacy, he must face the consequence of the disqualification and invalid nomination of his co-candidate in the panel before and after the election. This is well known rule of interpretation of statute that the clear intention of Legislature cannot be defeated by the application of rule of construction and no provision in the statute can be held redundant in the intent of Legislature. The general provisions in the statute shall follow the specific provisions but if there is no specific provision, obviously the general provisions will be construed in the light of clear intention of the statute. It is settled law that the rules framed under a statute cannot override the provisions of the statute and the same cannot be interpreted in a manner in which a substantive provision of the main statute becomes ineffective and redundant.
The rule of ejusdem generis is a general rule of interpretation which is hardly applicable where the intention of the Legislature in a statute is otherwise clear. The application of this rule in interpreting the words in the statute without considering the nature of special and the general words and the purpose with reference to which, the general words can be intended to restrict, is not proper and thus interpretation of provisions of a statute on the strength of rules framed thereunder on the basis of rule of ejusdem generis, which is not a law but rule of interpretation, would amount to undo the substantive law. The interpretation of the clear provisions in the substantive law on the basis of rule of construction and restricting the provisions of the statute to the particular rule would reduce the scope of said provision and defeat the very purpose of legislation on the subject. In the light of the rule of interpretation of words in the statutes that singular number may include the plural number and vice versa, the word 'returned candidate' used in Chapter X of the Election Rules would be read as 'returned candidates' with reference to the substantive provisions in the Election Ordinance.
25. The Punjab and Sindh Local Government Ordinances, 2000 and the rules framed thereunder have been repealed by the Punjab and Sindh Local Government Ordinance, 2001 which had taken effect w.e.f, 14-8-2001 except section 39(k) and section 196(i) (ii) which were held in abeyance to be notified subsequently. The notification for enforcement of the above provisions was issued on 25th July, 2002, therefore, till that date there was no change in law so far as it related to the election dispute and the disposal of election petitions. The legal position even after the issue of above notification was not changed. Section 1 in both the repealing Ordinance is read as under:-- "(1) Short title, extent and commencement.-(1) This Ordinance may be called the Punjab Local Government Ordinance, 2001.
(2) It extends to the whole of the Province of Punjab other than the areas notified as Cantonments under the Cantonments Act, 1924 (II of 1924), in relation to the matter covered under the said Act.
' It shall come into force on the fourteenth day of August, 2001, except the provisions as contained in section 39(k), Chapter XVII and section 196(1)(ii) of Chapter XIX which shall come into force on such date or dates as the Government may, by notification in the Official Gazette, declare: ' Provided that the provisions as contained in Chapter XII shall be applicable only for the financial year 2001-2002.
"196. Repeal and savings.-(1) On commencement of this Ordinance:--
(i) The Punjab Local Government Ordinance, 1979 (VI of 1979) shall be repealed;
(ii) the Punjab Local Government Elections Ordinance, 2000 (V of 2000) shall be repealed; and
(iii) All Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979) shall stand dissolved.
(2) Notwithstanding the repeal of the Punjab Local Government Ordinance, 1979 (VI of 1979), and dissolution of all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979), under subsection (1), subject to sections 4 and 23 of the Punjab General Clauses Act, 1956 (W.P. Act VI of 1956), all rules, regulations and bye-laws made under the repealed (Punjab) Local Government Ordinance, 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 Boaids established under the Punjab Local Government Ordinance, 1979 (VI of 1979), for the administration of officers and officials of the Local Council Service shall continue to function.
(3) Notwithstanding the repeal of Punjab Local Government Elections Ordinance, 2000 (V of 2000), all Nazims, Naib Nazims, and members of the Local Government 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 resigned or recalled under this Ordinance."
The perusal of above provisions would show that after repeal of Local Government Ordinance, 1979 and Local Government Elections Ordinance, 2000, the Rules, Regulations and By-laws made under Local Government Ordinance, 1979 so far the same were not inconsistent with the provisions of repealing Ordinance would continue until amended or varied. The repealing Ordinance has not expressly saved the Local Government Elections Rules, 2000 framed under Local, Government Elections Ordinance, 2000 but it has been specifically provided in subsection (3) of section 196 of this Ordinance that all Nazims, Naib Nazims and Members elected under the Ordinance, 2000 would be deemed to have been elected under the repealing Ordinances and after repeal of Ordinance, 2000, a Member, Nazim or Naib Nazim as the case may be, could be removed from the office in the manner as provided in section 161 of the repealing Ordinance. The election of the Members of a Union Council including Nazim and Naib Nazim, as provided in sections 10 and 148 of the Punjab and Sindh Local Government Elections Ordinances, 2000 and Local Government Ordinances, 2001 respectively must be held on the basis of adult franchise and separate electorate.
There can be no departure to the legal position that notwithstanding the repeal of a statute, the previous operation of repealed statute and the proceedings held under the said statute and rules framed thereunder would continue and the rights and liabilities incurred thereunder would not be affected. It is general principle of law that on repeal of a statute, all rights created and liabilities incurred under the said statute are saved by virtue of section 6 of the General Clauses Act, 1897. If the repeal is followed by fresh legislation on the same subject and the new law does not expressly keep alive old rights and liabilities, the same shall not be affected unless it is ascertained by taking into consideration all the provisions of new law that the intention was contrary to the provisions on a matter in the old law. It is settled law that in case an old statute is repealed and a new statute takes its place, the actions under the repealed statute continue except the procedural matters, therefore, the mere absence of a provision in the repealing statute similar to that contained in the repealed statute, is not suggestive of the intention of the Legislature to extinguish the liabilities incurred under the old statute and if the new statute does not expressly or by implication disturb the existing rights and liabilities, the same shall remain operative. In a nutshell, in case of repeal of a law, the repeal shall not affect any right or liability or affect any legal proceeding 1 remedy and the same shall be continued and enforced as if the law had not been repealed. The general law is that the rules, regulations and by-laws framed under a repealed statute, if not specifically saved under the new statute, would stand repealed with the repeal of statute under which the same were framed but if a new statute on the same subject takes place without specifically repealing the rules and regulations framed under the old statute or the substitution of such rules and regulations by the new rules and regulations, the same shall remain in force under the new statute until are replaced and shall be P deemed to have been made or issued under the provisions of new statute.
The Punjab and Sindh Local Government Election Ordinances, 2000 on repeal by the Punjab and Sindh Local Government Ordinances, 2001 were re-enacted and consequently the Local Government Elections Rules, 2000 framed thereunder so far the same were not inconsistent to the subsequent Ordinance despite repeal, would remain operative and continue by virtue of section 24 of the General Clauses Act, 1897, till the said rules are not superseded by framing fresh rules under the repealing Ordinance and consequently, the election petition and other proceedings pending under the repealed Ordinance would be decided under the repealed law. However, the election for the vacant seats of Nazim and Naib Nazim in the local bodies as provided in section 154 of the repealing Ordinance, would be held on the basis of joint candidacy except in a case of casual vacancy for which the election would be contested in individual capacity. The similar provisions relating to the joint candidacy in the earlier Ordinance had been inserted in the subsequent Ordinance, therefore, notwithstanding the repeal, the rules framed under the repealed Ordinance, in absence of fresh rules, would remain operative and consequently, on the basis of joint responsibility and doctrine of sinker, the invalid nomination of any one candidate in the panel, would invalidate the nomination of both the candidates in the said panel and in the light of rule that in case of rejection of nomination of either of Nazim or a Naib Nazim as joint candidates, the nomination as a whole for both the joint candidates shall stand rejected, their election as a whole must be declared void. The validity of nomination of the joint candidates is determined on the nomination day and if a candidate associates himself with a candidate who was suffering from a disqualification to contest the election on the nomination day or his nomination was invalid, the nomination of both would become invalid and both as joint candidates would lose the right to contest the election. The candidate by joining himself with a candidate who lacked qualification to contest the election could not avoid the consequence of the disqualification created for himself.
The invalid nomination of any one candidate in the panel, would make the nomination of the other candidate in the said panel invalid and the Tribunal would be competent to declare the election of both the candidates void. The invalid nomination of a candidate on the nomination day, would not subsequently be validated by mere change of his status from the candidate into returned candidate, therefore, the disqualification of a candidate on the nomination day, on the basis of which the nomination of the joint candidates as a whole could be rejected, would necessarily bring the consequences of the election of joint candidates as a whole void, therefore, the interpretation that' rule of rejection of nomination as whole of the joint candidates, would not be invocable for declaring the election of the joint candidate as a whole void in the election petition, would be against the wisdom of law and would make the rule meaningless. The idea behind the concept of joint candidature was to develop better understanding and good working relationship between Nazim and Naib Nazim of the union council for effective representation. The development of the spirit of joint responsibility at the local level can certainly prove the best source for promoting the institution of public interest and sound foundation for removing disparity in the Society and can also be helpful in advancing the cause of social justice. The system of joint candidacy being not inconsistent with or in derogation of any provision of the law, would definitely be proved useful for Local Government institutions composed of elected representatives.
26. The provisions of sections 16 and 154 of the Local Government Elections Ordinance, 2000 and 154, Local Government Ordinance, 2001 respectively read with Rules framed thereunder in an unequivocal terms provide that the election for the seat of Nazim and Naib Nazim in the local bodies must be contested on the basis of joint candidacy and the rejection of nomination papers of a candidate of Nazim or Naib Nazim in the panel would be rejection of nomination papers, as a whole, of the joint candidates and in the light of above rule the election of the joint candidates could be declared as a whole void by the tribunal on any of the following grounds:--
(a) That their nomination was invalid;
(b) any one of the joint candidates was not on the nomination day, qualified or was disqualified from being elected;
(c) that election was procured through corrupt and illegal process.
27. The next question would relate to the election of vacant/causal vacancy which would need determination in the light of section 18-A of the Elections Ordinances, 2000 as amended which contained the procedure for filing the causal vacancy occurring during the term of office of a Nazim or Naib Nazim as the case may be which is read as under:-- "18-A. Election to vacant seats.-(1) If the seat of a member remains unfilled becomes vacant during the term of office of a council, a new member shall be elected through by-election and such members shall hold office for the remaining portion of the term of the council.
(2) If any seat reserved for women remains vacant, the same shall be filled through by elections and the elected women member shall hold office for the remaining portion of the term of the Council.
(3) All by-election shall be held once a year on a date or dates fixed by the Chief Election Commissioner.
(3A) The period of one year referred to in subsection (3) shall be computed from the date of assumption of office of the Council: ' Provided that in the year in which general elections for the National or Provincial Assemblies are to be held, the bye-elections may be held within thirteen months.
(4) A vacancy of Union Nazim or Naib Union Nazim shall be filled through by-election within sixty days of the occurrence of vacancy.
(5) A Vacancy of Zila Nazim, Naib Zila Nazim, Tehsil Nazim or Town Nazim, Tehsil Naib Nazim or Town Naib Nazim shall be filled through by-election within thirty days of the occurrence of vacancy.
(6) When the office of a Zila Nazim or Naib Zila Nazim, Tehsil Nazim or Town Nazim, Naib Tehsil Nazim or Naib Town Nazim, Union Nazim or Naib Union Nazim remains unfilled or falls vacant, the members of the concerned Council shall by a majority vote elect an officiating Nazim or Naib Nazim as the case may be from amongst its members and the person so elected shall continue to retain his office as a member also: ' Provided that the officiating Nazim or Naib Nazim shall not be a candidate in the by-election held for election of the Nazim or Naib Nazim respectively."
28. The casual vacancy in terms of the above rule, would mean a vacancy which becomes vacant subsequent to the election as a result of removal, resignation, death or any other unforeseen reason but it does not include a vacancy which occurs in consequence of the declaring election of a returned candidate void by Election Tribunal in an election petition. The 'casual' means accidental, unforeseen or by chance but occurring of a vacancy in the process of law is not unforeseen, accidental or by chance, therefore, such vacancy would not fall within the definition of casual vacancy. Obviously, in case of casual vacancy, the election shall be held for the said vacancy only and shall be contested in an individual capacity. The procedure for election to a vacant seat under Punjab and Sindh Local "Government Ordinances, 2001, by virtue of which Punjab and Sindh Local Government Elections Ordinances, 2000 were repealed, is provided in section 156 in the following manner:-- "156. Election to vacant seats.-(1) If the seat of a member becomes vacant during the term of office of a Council, a new member shall be elected through by-election and the member elected in the by-election shall hold office for the remaining term of the Council.
(2) If any seat reserved for women remains vacant, the same shall be filled through by-elections and the elected women member shall hold office for the remaining portion of the term of the Council.
(3) All by-elections shall be held once a year on a date or dates fixed by the Chief Election Commissioner.
(4) A vacancy of Union Nazim or Naib Union Nazim shall be filled through by-election within sixty days of the occurrence of vacancy as provided in subsection (1) of section 148.
(5) A vacancy of Zila Nazim, Naib Zila Nazim, Tehsil Nazim or Town Nazim shall be filled through by- election within thirty days of the occurrence of vacancy as provided in subsections (2) and (3) of section 148.
(6) When the office of a Zila Nazim, Tehsil Nazim or Town Nazim falls vacant, the members of the concerned- Council shall by a majority vote elect an officiating Nazim from amongst its members as provided in sections 48 and 68 respectively, and the person so elected shall continue to retain his office as a member also: Provided that the officiating Nazim shall not be a candidate in the by-election held for election of the Nazim.
(7) When the office of a Union Nazim, falls vacant, the members of the concerned Council shall by a majority vote elect an officiating Union Nazim from amongst its members and the person so elected shall continue to retain his office as a member also: ' Provided that the officiating Nazim shall not be a candidate in the by-election held for election of the Union Nazim."
29. The pre-election disqualification to contest the election and become a Member, Nazim or Naib Nazim in the Union Council is different to the post-election disability to hold an elective office and if the seat of a Nazim or Naib Nazim subsequent to an election, becomes vacant due to an unforeseen event such as removal, resignation or death, the vacant seat shall be filled in the manner as provided in section 18-A of the Punjab and Sindh Local Government Elections Ordinances, 2000 and section 156 read with section 148 of the Local Government Ordinances, 2001.
In the light of clear distinction in the two type of vacancies, the vacancy occurring in consequence to the declaring of election void by the Tribunal in the election petition shall be filled on the basis of joint candidacy whereas the casual vacancy shall be filled through an election to be contested in the individual capacity. The seat vacated by the joint candidates as a result of an order passed by the Tribunal in an election petition is not due to an unforeseen event or accidental or by chance, therefore, the same must not be equated with the vacancy which occurs due to death, resignation or removal of returned candidate for a post election disability. The expression 'casual' has not been defined in the Local Government Elections Ordinance, 2000 and the Rules framed thereunder or in Local Government Ordinance, 2001, therefore, it must be construed in the plain and ordinary sense.
In the dictionary meaning, the word 'casual' is defined, "by chance or accidental, coming at uncertain time and not to be settled". It suggests no promises, object and intention or an event which is within the expectation or can be foreseen to be described as casual and a thing which is foreseen and anticipated, cannot be regarded as casual even if it is not likely to occur again. The casual .Vacancy occurs during the term of a Local Council as a result of resignation, death or removal of a Member, Nazim or Naib Nazim for a post election disability to continue in the office, whereas the vacancy occurring in consequence to the declaring of election of a returned candidate void would be deemed to have remained unfilled in the election. The casual vacancy is a vacancy which arises otherwise than by afflux of time and a vacancy occurring due to the declaration of an election void would not come within the scope of 'otherwise' and is not as such a casual vacancy in terms of section 18-A and section 154 of the Local Government Elections Ordinances, 2000 and 2001 respectively. The net result of the above discussion is that the seats vacated by the joint candidates as a result of declaring the election void having been excluded from the purview of the rule relating to the filling of the casual vacancy through the election in individual capacity would indicate that the responsibility of Nazim or Naib Nazim as joint candidate would not come to an ,end after the election and in consequence to the defect of invalid nomination of joint candidates, they must Lose the seats jointly on any ground as envisaged in Rules 81 and 82 of Punjab and Sindh Local Government Elections Rules, 2000 and the election for the vacant seats must be held on the basis of joint candidacy.
30. The next question involved in these appeals would relate to the application of rule of thrown away votes. The election of a candidate if is declared void on the ground of any defect in his candidature the votes cast in his favour may or may not be treated as thrown away votes. This rule is that if the voters knowingly choose to vote for a person who was disqualified to contest the election and his disqualification was also notorious, the voters by not voting for another candidate have thrown away their votes but if the disqualification of a candidate was not known to the voters or it was depending upon any defect involving adjudication of questions of facts and law, the votes cast in his favour cannot be thrown away and the voters cannot be deprived of their right of vote.
In such cases the election Tribunal shall not exercise discretion for declaring the next candidate securing highest votes as elected. The notoriety of the disqualification of a candidate cannot be pleaded unless the factum of its being widely known is proved through evidence direct or circumstantial and the knowledge of such notoriety could be attributed to the electors. The principle of notoriety cannot be invoked in a case in which the disqualification of a candidate was not notorious at the time of polling or escaped notice of the Returning Officer during the process of scrutiny of the nomination papers and the electors, despite being aware of such disqualification in the light of decision of acceptance of nomination papers of the candidate formed opinion that he was qualified to contest the election, were justified in exercising their right of vote in his favour. The essential requirement for the application of this rule is that disqualification must be established on record to be notorious through the positive evidence and it must be known to the electors or it must be of the nature which may give rise to the presumption of notoriety but if the above elements are not satisfied, the electors cannot be said to have thrown away their votes by casting votes in favour of a disqualified person and in such a case declaring the next candidate securing highest votes would amount to defranchise the electors for no fault on their part. The Tribunal in the election petition after declaring election of a returned candidate void may declare the next candidate securing highest votes in the election as elected or direct for holding fresh election and the Tribunal must exercise said power in the light of settled law according to which if a returned candidate is unseated in the election petition for a disqualification which was not known to the voters and was also not notorious or which would be depending on legal argument and adjudication of complicated and controversial questions of facts, the declaring of next candidate securing higher position as elected in such a case, would amount to defranchise the electors for no fault of theirs and thus the next candidate would not be declared as elected if the following essential elements existed:--
(a) The disqualification was not found to have been existed by the Returning Officer and the electors even if they were cognizant of it would have right to act upon the decision of the legal forum.
(b) The disqualification was not proved to be notorious and known to the electors.
(c) The disqualification was not of such a nature which may give rise to the presumption of notoriety.
31. This Court in the case of Rashid Ahmed v. Barkat Ali (PLD 1968 SC 30) while discussing the issue reproduced the criterion laid down in the English Legal System for guidance of the Tribunal in such cases as was summed upon in Halsbury's Law of England, 3rd Edition, Vol. 14 as under:-- "Votes given for a candidate who is disqualified may, in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded in some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant; or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must, before voting, either have had or be deemed to have had notice of the facts creating the candidates disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good. If after deducting the votes given to such candidate he remains in a majority, the minority candidate cannot be seated and there must be fresh election."
32. In the case of Muhammad Afzal Khan v. Ch. Manzoor Ellahi (PLD 1975 SC 1296), it was held by this Court as under:-- "I may, therefore, conclude that voters casting their votes for a candidate who is disqualified under the law, the disqualification being founded on some positive and definite fact existing and established at the time of the poll same being sufficiently notorious to saddle the electors with knowledge thereof are deemed to throw away their votes and to mean not to vote for any one for that office as well as to assent to the election of the opposing and qualified candidate. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences, then even though the candidate may be unseated the seat cannot be given to the candidate with the next highest number of votes and the election has to be declared void as a whole."
33. In Saeed Hassan v. Asghar Ali (PLD 1976 SC 6), again this Court at page 35 of the judgment observed as under:-- "The well-known principle in substance is that 'votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes."
34. The answer to the question "as to whether the votes given to a candidate who was suffering from a disqualification should be treated as being simply wasted or thrown away" the consistent view of this Court is that votes given to the returned candidate without notice of the disqualification which was not notorious cannot be thrown away for the benefit of next candidate at the cost of de- franchising the electors and in such circumstances fresh election is must. The conclusion drawn from the above discussion is that there can be no departure from the rule that the petitioner in the election petition or any of the respondents seeking declaration to be the successful candidate through recriminatory petition should satisfy the considerations which are relevant for such declaration and the Tribunal must decide such petitions in light of evidence led by the parties in the election petition.
35. The next issue would be regarding the legality of the order relating to the declaration of election of returned candidate as void and the grant or refusal of consequential relief claimed in each case.
36. In Civil Appeal No,583 of 2002, the appellant was not himself personally suffering from any disqualification but lost the seat in consequence of the disqualification of his joint candidate in the panel. The Tribunal having found the matriculation certificate produced by the joint candidate of appellant not genuine declared him disqualified to contest the election. This finding of the Tribunal on the question of fact was upheld by the High Court and also by this Court, therefore, the same would not call for interference in the present appeal. However, we find that the above disqualification of a candidate would neither be deemed to be in the knowledge of the voters nor any notoriety was attached to it to attract the rule of thrown away votes cast to him and deprive the voters from their right of franchise, therefore, the next candidate securing the highest votes in run off election could not be declared as elected.
37. In Civil Appeal No,751 of 2002, the appellant being suffering from disqualification of being wilful bank defaulter was unseated by the Tribunal. The appellant having obtained a loan facility from bank, failed to discharge his liability as per schedule of re-payment with the result that bank filed a suit against him for recovery of loan in which the Court, seized of the matter, after proper adjudication of the dispute, passed a decree against the appellant. The Election Tribunal in the election petition on the basis of the said decree while holding him wilful defaulter, declared that he was not qualified to contest the election and while unseating him declared the next candidate securing highest votes as elected. The verdict given by the Tribunal against the appellant of his being wilful defaulter was upheld by the High Court in the Constitution petition and we take no exception to the above declaration. However, the disqualification of the appellant being depending upon legal verdict given by the Tribunal and the High Court and the same would neither be in the knowledge of voters nor was found notorious at the time of polling so as to justify the claim of next candidate to be declared elected. The above disqualification of the appellant was not found to have been in existence during the scrutiny of the nomination papers and thus the essential requirement for the application of the principle of thrown away votes being missing in this case, the declaration in favour of next candidate securing the highest votes to be elected would definitely defeat the right of franchise of electors.
38. In Civil Appeal No,1191 of 2002, the appellant was held disqualified by the Tribunal in the election petition on the ground that assets being possessed by him were found inconsistent with the declaration of assets submitted by him alongwith the nomination papers. The above disqualification of the appellant escaped the notice of Returning Officer during the scrutiny of the nomination papers and the Tribunal in the light of oral and documentary evidence based on the revenue record, having found the assets of the appellant inconsistent to the declaration of assets submitted by him with nomination papers, declared him disqualified to contest the election. The fact relating to the inconsistency of the assets of appellant with the declaration of assets was scrutinized by the learned Judge in Chambers in the High Court in the light of evidence brought on record and upheld the finding of the Tribunal on the question of concealment of assets in the declaration. The High Court after thorough analysis of the evidence gave verdict on the pure question of fact and this Court is not supposed to interfere in the finding of facts through reappraisal of evidence. The concealment of assets possessed by a candidate in his declaration of assets was a disqualification under section 14(1) of Punjab Local Government Election Ordinance, 2000 but such a disqualification being in exclusive knowledge of candidate, would not be known to the voters, therefore, the votes cast in his favour cannot be thrown away at the cost of right of franchise of the voters.
39. In the light of above conclusion, we while upholding the judgment of the Lahore High Court, Lahore, impugned in Civil Appeal No,583 of 2002 and 'Civil Appeal No,592 of 2002 dismiss both these appeals.
40. In Civil Appeal No,1191 of 2002, the Tribunal after declaring the election of appellants void, declared the panel of next candidate securing highest votes as elected which was upheld by the High Court but we while maintaining the judgment to the extent of declaration of the election of appellants void, set aside the order of declaring the next candidate as elected and direct that fresh election shall be held to fill the vacant seats. The judgment of High Court in Civil Appeal No,751 of 2002 is also maintained in the following terms:--
(i) The order of declaring the election of appellant void would not call for any interference and is upheld.
(ii) The order of declaring the panel of next candidates securing highest votes as elected being not maintainable, is set aside. The vacant seats shall be filled through fresh election.
41. The net result is that Civil Appeals Nos. 583 of 2002 and 592 of 2002 are dismissed while Civil Appeals Nos. 1191 of 2002 and 751 of 2002 are partly allowed. There will be no order as to costs.