2003 PLP 400 (SCMR)

(f) The result of election was to be declared on 6‑7‑2001. During the scrutiny of the nomination papers, Malik Zahoor Akhtar Awan, respondent No.3 raised an objection to the validity of nomination papers of appellants on the grounds: (a) That if a person subscribes as proposer or seconder to more than one nomination papers for the seat of Nazim or Naib‑Nazim such nomination papers except the one which was received first by the Returning Officer would be rejected. (b) That Ansar Cheema appellant No.2, a candidate for the seat of Naib‑Nazim had also filed nomination papers as joint candidate in two other penals namely the panel of Badar Munir and panel of Tahir Mahmood Cheema, which were subsequently withdrawn by him on 13‑6‑2001 and 6‑6‑2001 respectively, therefore, the third nomination papers tiled by him with Muhammad Jamil Akhtar would be void by virtue of sub‑rule (7) to rule 16 of Punjab Local Government Election Rules, 2000. (c) The objection was turned down by the Returning Officer vide order dated 6‑6‑2001 and the appellants were declared validly nominated candidates to contest the election. Malik Zahoor Akhtar, respondent No.3 filed an appeal against the acceptance of nomination papers of the appellants before the District Returning Officer who vide order dated 10‑6‑2001 allowed the appeal and rejected the nomination papers of the appellants with the following observations:‑ "

3. After hearing the learned counsel for the parties, perusing the law on the subject I am of the view that according to rule 2(26) and (27) read with rule 16(7) and rule 20 of the said Ordinance a validly nominated candidate was a person whose nomination could be accepted under the rules and as it is provided by rule 16(7) of said Ordinance that in case of any person subscribing as a proposer or seconder to more than one nomination paper all such nomination papers except the one received first by the R.O. shall be void thus since for the first nomination papers taken up by the R.O. on 3‑6‑2001 and 6‑6‑2001 prior to the nomination papers of the respondents in hand, they were not declared as validly nominated candidates on said nomination forms thus all the subsequent were liable to be declared to be void and as such the present nomination could not be held to be valid. Rule 20 of the said Ordinance also is important to be mentioned which also provides that a validly nominated candidate may by a notice in writing signed by him and delivered on or before the withdrawal day to the R.O. withdraw from his candidature but in the instant case since above said two earlier nomination papers had not passed the test of scrutiny, therefore, withdrawn for various reasons including the bogus Matric Certificate of Badar Munir in relation to nomination papers at S.No.23,, therefore, all the subsequent nomination papers for any of such persons were liable to be rejected. Impugned order is not in accordance with law. Appeal is accepted. The nomination papers of the respondents Nos.2 and 3 stand rejected." The appellants challenged the order of rejection of their nomination papers passed by the District Returning Officer through a Constitution Petition bearing No.2063 of 2001 in the Lahore High Court, Rawalpindi Bench, and a learned Single Judge in Chambers through the impugned judgment dismissed writ petition with the following observations:‑‑ "This leaves no a scintilla of doubt that only a validly nominated candidate can withdraw his candidature. The alleged earlier withdrawal of the nomination papers would entail no consequence and shall be deemed to be pending. Once the joint candidature of the petitioner No.2 with Badar Munir has been rejected on the ground that the secondary school certificate of Badar Munir was found to be bogus, all subsequent nomination papers are bound to be rejected under section 14 (d) of the BNPS Local Government Election Ordinance, 2000. It is well‑settled that under the new law the candidates for "Nazim" and "Naib‑Nazim" win or sink together, one candidate out of joint candidatures of "Nazim" and "Naib‑Nazim", who has collapsed due to absence of good character cannot subsequently purify himself by joining with a pious person. Disqualification on incurred cannot be cured subsequently.

6. For what has been stated above, this petition is dismissed in limine. " Leave to appeal was granted by this Court vide order dated 27‑6‑2001 which is read as under:‑‑ "Leave is granted to consider the point whether any embargo can be placed upon withdrawal of nomination papers before scrutiny when the law is otherwise. Meanwhile, operation of the impugned judgment is suspended and the petitioners are allowed to contest elections, which would be subject to final decision of appeal by this Court. " Learned counsel for the appellants has contended that under rule 16(6) of the Punjab Local Government Election Rules, 2000, there is no bar for the nomination of a person in the same electoral unit by more than one nomination paper, except that the nomination papers which were received by the Returning Officer first in time, should be entertained and remaining should be excluded from the process of scrutiny and therefore, filing of more than one nomination papers in the same electoral unit by itself would not invalidate the candidature of a person in the election as such nomination papers would remain out of the process of scrutiny and would not be in existence for the purpose of rule 16(7) of the ibid Rules. The learned counsel argued that the nomination papers filed by Ansar appellant with the panel of Badar Munir and Tahir Mahmood were withdrawn before the start of process of scrutiny of nomination papers, therefore, the same would not be treated as rejected rather would be deemed to be not in existence, therefore, the nomination papers filed by the said appellant as co‑candidate of appellant No. l in a separate panel would not be suffering from any invalidity and the Returning Officer committed no illegality in accepting the said nomination papers. The learned counsel vehemently argued that the District Returning Officer and the learned Judge in the High Court through misinterpretation of the rules held the nomination papers of the appellants invalid. The learned counsel representing the contesting respondents, on other hand, argued that the nomination papers could only be withdrawn in terms of rule 20 of the ibid rules on the date fixed for the said purpose, in the prescribed manner on completion of the process of scrutiny of nomination papers and that the nomination papers filed by Ansar appellant with Badar Munir and Tariq Mahmood would be deemed to be pending on the day of scrutiny of nomination papers and as a result thereof the nomination papers subsequently filed by him as co‑candidate of Jamil Akhtar, appellant No.l being void, would be rejected in terms of sub‑rule (7) of Rule 16 of the ibid Rules. Learned counsel for the appellants during the course of arguments has informed us that the appellants having participated in the contest with the permission of this Court have been declared successful candidates. We have heard the learned counsel for the parties and examined the relevant rules. governing the subject in the Punjab Local Government Election Rules 2000. The validly nominated candidate is defined under Rule 2 (xxvi) of these rules as under:‑ "Validly nominated candidate" means a candidate whose nomination has been accepted under these rules. The withdrawal of nomination papers can be made on any date as mentioned under sub‑rule (xxvii) of Rule 2 of the ibid Rules which provides as under: ‑‑ "(xxvii). 'withdrawal day' means a day fixed under these rules on or before which candidature may be withdrawn." The perusal of rule 20 of ibid Rules shows that said rule is applicable only for withdrawal of nomination papers by a validly nominated candidate and the procedure provided therein is required to be followed by a candidate who wants to withdraw his nomination papers before the scrutiny. There is clear distinction between the validly nominated candidate and a candidate, therefore, the provisions of rule 20 of ibid Rules could not be pressed into service and made applicable mutatis mutandis to a candidate for the purpose of withdrawal of nomination papers before the scrutiny under the Punjab Local Government Election Rules, 2000, the Returning Officer invites the submission of nomination papers by the candidates through publication and specifies the place for receipt of nomination papers. Any elector in an electoral ward can propose or second the name of a qualified person to be a candidate for becoming member of the union council from the said .ward. The nomination papers filed by a candidate must be signed by the proposer anti seconder and there is no bar for a person to file more than one nomination papers but each nomination paper should be accompanied by a declaration of assets and in case a person subscribes or proposes more than one nomination papers except the nomination papers received by the Returning Officer first in time, the remaining nomination paper shall be void. The Returning Officer shall affix at some conspicuous place in his office all nomination papers received by him with particulars of the candidates and the names of their proposers and seconders for information and invite objections from the voters within the time specified in the election programme. The scrutiny of the nomination papers is made under rule 18 of the said Rules, in the manner provided therein and Returning Officer should provide reasonable opportunity for examination of nomination papers in presence of concerned persons and decide the objection and the Returning Officer is also empowered to conduct a summary inquiry to his satisfaction in the manner as provided under Rule 18(3) of the Rules in question. The examination of relevant rules would show that there is neither any restriction for a candidate to file more than one nomination papers in the same electoral ward in the different panels nor he is debarred to withdraw the nomination papers before the date of scrutiny and thus it would be entirely choice of the candidate to withdraw his nomination papers or not from any panel at any time before the scrutiny if, he has filed more than one nomination papers and if no such withdrawal is made before the scrutiny, his candidature shall be determined on the basis of nomination papers first received by the Returning Officer and all remaining nomination papers shall be void. The nomination papers which are withdrawn before the scrutiny would be deemed to have been not filed and therefore cannot be considered for declaring a person either to be a validly nominated candidate in the election or for rejection of his candidature. In the present case, Ansar appellant filed three sets of nomination papers in three different panels but subsequently he withdrew the nomination papers filed in the panels of Badar Munir and Tahir Mahmood before the date of scrutiny of nomination papers, therefore, the same could not be legally deemed to be pending for scrutiny and consequently the candidature of the petitioner for the purpose of election would be determinable on the basis of nomination papers available with the Returning Officer at the time of scrutiny. The District Returning Officer and the learned Judge in Chambers in the High Court having failed to properly attend the proposition in the light of the rules on the subject, were misguided in rejecting the nomination papers of the appellants. We having perused the rules in question have not been able to find out any specific rule under which a candidate after filing of one or more nomination papers would be debarred from withdrawing any one of the same before the scrutiny or despite Such withdrawal the nomination papers would be included in the process of scrutiny. Learned counsel for the respondents contended that the last date for filing the nomination papers was 29‑5‑2001 whereas the appellants filed their nomination papers on 31‑5‑2001 and the same were illegally entertained and put to the process of scrutiny. We are afraid no such objection was raised by the respondents either before the Returning Officer or District Returning Officer in appeal or even in the High Court in writ petition, instead the controversy between the panes remained confined to the extent that Ansar appellant having filed more than one nomination papers with different panels was disqualified to become a candidate in the election. Leave was also granted only to consider a limited question relating to the effect of withdrawal of nomination papers before the scrutiny therefore, no other ground can be allowed to be taken by either side at the final stage. For the foregoing reasons, this appeal is allowed. The judgment of the High Court is set aside and the appellants are declared as validly nominated candidates. There will be no order as to costs. S.A.K./M‑567/S Appeal allowed.