2007 PLP 1715 (CLC)

HASNAT AHMAD KHAN, J.

Through the instant constitutional petition the petitioner has called in question the judgment dated 27-4-2007 passed by the learned Senior Civil Judge/Election Tribunal, Vehari for all Union Councils Duniyapur, District Lodhran whereby, the election petition filed by respondent No.2 was accepted and the election of the petitioner as returned candidate was declared void and illegal and after de-seating the petitioner fresh election against the seat of Kissan/Labour of Union Council No.50, Eidgah Wali, Tehsil Duniyapur, District Lodhran was ordered to be held.

2. Brief' facts of the case are; that the petitioner along with others contested Local Bodies election held on 18-8-2005 for the seat of Kissan/Labour from Union Council No.50, Eidgah Wali, Tehsil Duniyapur, District Lodhran. Respondent No.2 had also participated in the said elections against the same seat. The writ petitioner was declared as a retuned candidate. His election was called in question through the election petition filed by respondent No.2 on the ground that the petitioner neither could be termed as Kissan nor did he fall in the category of Labour. In the election petition it was asserted that the petitioner was owner of 58 Kanals and 9 Marlas of land which exceeded the upper limit of 40 Kanals prescribed by law to contest election against Peasant seat and therefore, he was disqualified to contest election against the said seat. The petitioner filed written reply to the said election petition through which apart from raising certain preliminary objections it was asserted by the petitioner that he was working as labourer in a factory. It was further averred by him that he was not owner of 58 Kanals and 9 Marlas of land and, therefore, his case squarely fell within the definition of peasant as given in section 2(xxvi) of Punjab Local Government Ordinance, 2001. On the basis of pleadings of the parties following issues were framed by the learned election tribunal:

(1) Whether the election of respondents Nos.1 and 2 to the seat of peasants/Worker is against facts and law as the respondent No.2, owns agricultural land more than to 40-Kanals and he is not a labourer but he is a commission agent in grain market? OPP (2) Whether the respondent No.2 filed a bogus affidavit to participate in the disputed election and the said act of the respondent No.2 is fraudulent, illegal based on mala fide? OPP (3) Whether the petitioner is estoppel by their words and conduct to file the suit? OPR (4) Whether the petition in hand is not maintainable in view of P.O. Nos.2, 3, 4, 5,? OPR (5) Whether the petitioner is entitled to get special costs under section 35-A, of C.P.C.? (6) Order.

3. During the trial respondent No.2 produced as many as three witnesses to support his case. Khalil Karim, Patwari appeared as PW 1 and apart from furnishing oral evidence he produced and proved copy of register of record of rights, as Exh.P.1, showing the petitioner as owner of 58 Kanals and 9 Marlas of land, Haji Muhammad Nawaz Sub-Inspector, Market Committee, Duniyapur had appeared in the witness box as P.W.2 and after producing authority letter dated 26-7-2006 Exh.P.2, he produced and proved copy of extract of a register of Market Committee, Duniyapur as Exh.P3 showing that Muhammad Saeed petitioner was holder of a licence of commission agent. Apart from the said extract he proved on record an application Exh.P4 which also proved that the petitioner had applied for renewal of licence of commission agent of grain market. Besides these documents he produced a certificate dated 22-9-2005 to further show that petitioner was a commission agent. Thereafter, respondent No.2 himself stepped forward in the witness box as P.W.3 and fully supported his case by asserting that the petitioner was working in the market committee as commission agent. He was cross-examined by the petitioner who could not shake his credibility despite lengthy cross-examination.

4. After closure of evidence of respondent No.2, the petitioner was given an opportunity of producing his evidence. He appeared in the winless box as R.W.I but failed to produce any other witness in support of his claim. So much so, no documentary evidence was produced by him to show that he was a labourer or a Kissan. During his examination -in-chief he did not even assert that he was working as a labourer or worker in any concern, rather his emphasis was that he being not owner of land of more than 40 Kanals fell in the category of peasant. He claimed that he had sold his property and was not owner of any land but as mentioned above, he failed to produce any documentary evidence in support. of his claim.

5. After scrutinizing and evaluating the entire oral as well as the documentary the learned election tribunal concluded that respondent No.2 had proved his case through oral as well as documentary evidence. While relying upon the evidence produced by respondent No.2, the learned election tribunal held that the petitioner being owner of more than 40 Kanals of land could not be termed as peasant. It was further held by the tribunal that petitioner did not fall in the category of labourer or worker.

6. In support of this writ petition, learned counsel for the petitioner has contended that the election petition and the documents appended therewith were not verified in accordance with law and, therefore, the petition was liable to be dismissed on the said ground alone.

7. I have attended to this argument very carefully but I do not see eye to eye with learned counsel for the petitioner because the order dated 22-2-2006 appended; with this petition reveals that such objection was taken up by the tribunal before the decision of main case and was decided at preliminary stage. Through the said order the objection of non-verification of petition as well as the documents was spurned by the election tribunal. Learned counsel for the petitioner has failed to show as to whether the said order was challenged at any level. The said order which was passed more than a year ago, and therefore, at this stage, learned counsel .for the petitioner cannot be allowed to challenge the same. Even on merits, the said objection has got no force. To better appreciate the argument of the learned counsel, relevant Rule i.e. Rule 72, of Punjab Local Government Elections Rules, 2005 is reproduced as under:

"

72. Dismissal of petition during trial.

The tribunal may .dismiss an election petition if

(a) the provisions of rules 67 and 70 have not been complied with: or (b) the allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity, or other illegal act." A perusal of said rule clearly shows that for dismissal of election petition, on technical grounds, the word `may' has been used in said rule which means that said rule is discretionary and not mandatory. Consequently, the election tribunal was not duty bound to dismiss the election petition on said technical ground. The tribunal had opted to exercise his discretion against the petitioner by over-ruling the said objection vide order dated 22-2-2006. Thus, the objection of learned counsel for the petitioner on this score does not hold water. To strengthen any view, I would like to rely upon the judgment of Honourable Supreme Court reported as Abdul Nasir and another v. Election Tribunal, Toba Tek Singh and others 2004 SCMR

602. In said case, while interpreting Rule 71(3) of Punjab Local Government Election Rules, 2000, the Honourable Supreme Court had held that non-verification of election petition would not render election petition non-maintainable. In a case decided by this Court and reported as Muhammad Zafarullah Khan and another v. Ehsan Uliah Khan and 2 others 2006 CLC 718 (Lahore), it was held Rule 72 of PLGBE Rules was not mandatory. Similar view was taken by this Court in a case reported as Zulfiqar Hussain and another v. Mirza Haq Nawaz and 7 others 2004 CLC 1331. It would be relevant to observe here that in a similar and parallel provision contained in section 63 of Representation of the People Act, 1976 the word "shall" has been used by the legislature unlike Rule 72 of PLGE Rules, 2005 wherein the word "may" has been used. To put in a nutshell, aforementioned argument advanced by the learned counsel is found to be meritless and hence spurned.

8. As far as merits of the case are concerned, learned counsel has failed to point out any illegality, whatsoever, in the impugned judgment respondent No.2 has proved to the hilt that the petitioner was owner of land more than 40 Kanals and, therefore, according to the definition of peasant as given in section 2(xxvi) of Punjab Local Government Ordinance, 2001 he could not contest the election against the seat of peasant. Similarly, his case is not covered by the definition of worker as contained in section 2(xli), of the said Ordinance, inasmuch as the petitioner while appearing as R.W.1 had not even orally claimed that he was a labourer, what to talk of furnishing of documentary evidence'? Respondent. No.2 had unequivocally proved that the petitioner was working as a commission agent in a grain market. Oral as well as the documentary evidence produced by the respondent No.2 as discussed above, had clearly proved this fact and the petitioner had failed to rebut the said evidence. Similarly, he failed to show that he is not owner of 58 Kanals of land. The documentary evidence in this regard clearly proved that he was owner of 58 and 9 Marlas of land. Claim of the petitioner that he had sold the said land through some agreement to sell cannot be given any weight firstly on the ground that no such agreement was placed on record and secondly until and unless the said land is shown to have been finally transferred and disposed of by the petitioner he would be deemed to be the owner of the said land. As observed above, learned counsel for the petitioner has failed to convince me that while accepting the election petition the tribunal had committed any illegality. Similarly, he has failed to show that the said judgment suffers from any jurisdictional error.

9. For all the reasons mentioned above, this petition is found to be meritless and consequently stands dismissed in limine without any order as to costs. S.A.K./M-398/L Petition dismissed.