P L D 2005 Lahore 357 (PLP)

Haji Dildar Khan for Respondent No.

1. Rana Naeem Sarwar, Addl. A.‑G. for Respondents Nos. 7 to

9. Date of hearing: 3rd February, 2005. UMAR ATA BANDIAL, J.‑‑‑This Intra‑Court Appeal questions the judgment of the learned Single Judge dated 26‑3‑2003 refusing in the exercise of Constitutional jurisdiction to interfere with the finding of disqualification qua the appellant given by the learned Election Tribunal on 2‑12‑2002. The facts disclosing the present controversy are as follows:

2. The elections to the office of Nazim and Naib Nazim of Union Council No.210, Faisalabad were held on 31‑5‑2001 under the provision of Punjab Local Government Elections Ordinance, 2000. The appellant herein and one Muhammad Siraj Butt were elected respectively as Nazim and Naib Nazim of the said Union Council. Muhammad Younas respondent No.1 herein, filed an election petition on 26‑6‑2001 before the learned Election Tribunal which was allowed vide judgment dated 2‑12‑2002. The appellant was held to be disqualified on account of being a defaulter of the Punjab Small Industries Corporation and also for his failure to declare his assets. Muhammad Siraj Butt, Naib Nazim was also de‑seated on account of disqualification of the appellant.

3. The two incumbents jointly filed Writ Petition No.2150 of 2002 which was allowed to the extent of Muhammad Siraj Butt, Naib Nazim, but was dismissed with respect to the appellant vide judgment of the learned Single Judge delivered on 26‑3‑2003. The learned Single Judge was of the opinion that in relation to the appellant he could not substitute the finding of the learned Election Tribunal with his own finding.

4. Learned counsel for the appellant has raised the following contentions before us:‑ (i) That under section 14(2) of the Punjab Local Government Elections Ordinance (No.V), 2000 as amended by Ordinance X of 2001 ("Elections Ordinance") read with section 152(2) of the Punjab Local Government Ordinance (No.XIII), 2001 ("Local Government Ordinance") the appellant could be de‑seated only if the learned Chief Election Commissioner ("CEC") had found him guilty of contravening the provisions of section 14(1) clauses (i) and (j) of the Elections Ordinance and therefore, the Election Tribunal had no jurisdiction whatsoever in the matter; (ii) that neither the Elections Ordinance nor the Local Government Ordinance provide for challenging the election of a Nazim or a Naib Nazim through an election petition; (iii) that the Punjab Local Government Elections Rules, 2000 ("Elections Rules") providing for the filing of election petition and the constitution of election Tribunals were therefore ultra vires in the absence of substantive provision in present legislation, i.e. the Election Ordinance itself; (iv) that section 196(3) of the Local Government Ordinance guarantees the tenure of Nazim and Naib Nazim unless they resign or are recalled or removed earlier, and that too under an order passed by the learned CEC. Accordingly, Rule 70 of the Elections Rules permitting the filing of an election petition is inconsistent with the object and effect of section 196 of the. Local Government Ordinance; (v) that the case of the appellant did not fall within the mischief of section 14(1)(j) of the Elections Ordinance disqualifying a candidate who has been "adjudged a willful defaulter" because no adjudication in this respect had been made about the appellant by any competent Court; (vi) likewise the appellant did not .fall within the mischief of section 14(1)(j) of the Election Ordinance containing the disqualification for failure to make complete disclosure of assets because the appellant had mortgaged his land as security for loan with the Punjab Small Industries Corporation and authorized them to dispose of the same for adjustment against his outstanding liability, if any. The said land was sold in settlement of the said dues and therefore there was no inconsistency between the actual and the declared assets of the appellant to incur the said disqualification.

5. The learned counsel for the respondents have opposed the aforesaid contentions raised for the appellant. To support his claim that the learned CEC is the only competent forum to adjudicate the qualification/disqualification of the appellant to contest the local government elections, .the learned counsel for the appellant relied upon the Punjab Local Government Elections (Amendment) Ordinance (No.X of 2001), promulgated on 5‑7‑2001. By this law several amendments in the Elections Ordinance were enforced including, inter alia an amendment in section 14 of the said Ordinance by the incorporation of a new subsection (2) therein. The newly added subsection (2) of section 14 provides as follows:‑ "(2) Whoever:‑‑ (i) is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall stand disqualified from being , a candidate for election to a local government for a period of four years; or (ii) having been elected as a member of local government or being a holder of an elected office of local government is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall cease forthwith to be an elected member or to hold the office of such member and stand disqualified from being a candidate for election to a local government for a period of four years."

6. Section 1(2) of the aforesaid amending Ordinance X of 2001 provides that it shall be, deemed to have taken effect on 5‑10‑2000. Learned counsel for the appellant contended that by virtue of the retrospective effect of the amending Ordinance X of 2001, the only remedy contemplated in the Election Ordinance for the enforcement of qualifications/disqualification under section 14(1) thereof is before the learned CEC as provided by the newly incorporated section 14(2) of the Elections Ordinance. He stressed this view on the premise that whereas the amendment has been made with effect from 5‑10‑2000 the relevant election in the present case was held after that date, on 31‑5‑2001. Learned counsel reinforced his submissions by referring to the provisions of section 152 of the Local Government Ordinance that mirror the provisions of section 14 of the Elections Ordinance as amended. The two laws contain identical provisions each specifying in subsection (1) of the respective provision; the necessary qualifications of candidates contesting elections and in subsection (2) thereof, the forum i.e. the learned CEC for determining the incurrence of any disqualification by a candidate. He asserts that the language of section 152(2) of the Local Government Ordinance in identical terms as section 14(2) of the Elections Ordinance is significant because former law repealed the Elections Ordinance for present purposes with effect from 25‑7‑2002 by notification of the Provincial Government issued under section 1(3) of the Local Government Ordinance. As both the Elections Ordinance and the Local Government Ordinance provide for the singular forum of the learned CEC to pronounce upon the qualification/disqualification of candidates for election, the Elections Rules conferring power upon the learned Election Tribunal to give its verdict dated 2‑12‑2002 against the appellant conflicts with the statutory scheme, is ultra vires the Elections Ordinance, is illegal and without lawful authority.

7. The contention raised by the learned counsel for the appellant is attractive but upon closer scrutiny it is untenable both on facts and the law. Firstly, it is to be noted that the elections in the present case were held on 31‑5‑2001 and the election petition against the notified result dated 7‑6‑2001 was filed on 26‑6‑2001 before the learned Election Tribunal which had by then been constituted by order of the learned CEC in exercise of his power under rule 70(2) of the Elections Rules. The election petition was therefore already underway prior to a remedy before the learned CEC under section 14(2) of the Elections Ordinance was created by the amending Ordinance X .of 2001 promulgated on 5‑7‑2001. Section 14(2) of the Elections Ordinance does not purport to create an exclusive or over‑riding remedy before the learned CEC for the purpose of determining qualifications of candidates and elected members. Although Election Tribunals were already in existence at the time of the promulgation of amending Ordinance No.X of 2001, there is nothing in its amendments that curtails or excludes the jurisdiction of these Tribunals in matters that fall within the purview of the remedy before the learned CEC under section 14(2). Thus the statutory intent to also vest the learned CEC with power to determine both pre‑election and post -election disputes regarding qualification/disqualification of candidates is meant to enlarge his jurisdiction without prejudice to the existing remedy. By not prescribing procedure for section 14(2) proceedings, the legislature has conferred discretion upon the learned CEC to adopt any suitable process and format of his proceedings so as to effectively perform his function of holding the local government elections recognized by section 12 of the Elections Ordinance and otherwise entrusted to him by the constitutive law namely, the Local Government Elections Order, 2000 (Chief Executive Order No. 8 of 2000).

8. On the other hand, Election Tribunals constituted under the Elections Rules hear only post‑election disputes on specified grounds including‑ the disqualification of an elected member. The proceedings of Election Tribunals are regulated by detailed procedure that includes the manner for recording of evidence and their power is limited to grant only specified reliefs. The difference in scope, format, procedure and reliefs under the two remedies, one before the learned Chief Election Commissioner and the other before the Election. Tribunal, demonstrates their separate spheres and purposes. The remedy before the learned Chief Election Commissioner is to facilitate the exercise, of his power "to take all steps and measures that he may deem necessary for effectively carrying out the said elections" conferred upon him by the Local Government Elections Order, 2000 (Chief Executive Order No.8 of 2000). Section 14(2) of the Elections Ordinance, confers a quasi‑judicial power upon the learned Chief Election Commissioner for the discharge of his vast powers to effectively conduct a transparent, fair and peaceful election. In this view of the matter the strictly judicial remedy before the Election Tribunal for the enforcement of the mandatory qualifications prescribed for elected members has a distinct purpose and effect in relation to post‑election disputes. It is attracted where inquiry into facts is necessary and also where the scope of relief to annul the election as a whole or to a lesser extent has to be determined. Therefore, although in post‑election disputes the jurisdiction of the learned Election Tribunal and the learned Chief Election Commissioner is concurrent, it does not mean that there is mutual contradiction between the two remedies. Such conflict could arise, if the remedy before the learned Chief Election Commissioner was exclusive, which is not the case here. Nor can conflict occur even with reference to findings because there are settled principles to regulate, the manner of exercise of concurrent jurisdictions in order to avoid inconsistency. In the facts of the present case, neither conflict nor prejudice was either alleged or experienced by the parties on account of dispute being determined in accordance with law by a lawfully constituted Election Tribunal. The point about the remedy under section 14(2) ousting the jurisdiction of the Election Tribunal is simply unfounded.

9. It remains to be considered whether the absence of any provision in the Elections Ordinance for the establishment of Election Tribunals or for filing of election petitions, bars the Elections Rules from making such provision or otherwise invalidates delegated legislation made in this behalf by the Provincial Government. In the first instance, it is pertinent to note that as a species of subordinate legislation, the Election Rules framed under section 38 of the Elections Ordinance, may competently create legal rights and obligations for persons falling within the pale of the Elections Ordinance. Thus, the Elections Rules create an elaborate framework for regulating the process of elections from the point of their inception to their conclusion. This includes many stages that are crucial for the conduct of fair elections and are in elaboration of matters contemplated by the Elections Ordinance. Thus, in furtherance of specific intent of the Elections Ordinance, the Elections Rules deal with matters regarding preparation of electoral rolls, delimitation of the constituencies, determination of the election programme, assistance to the learned Chief Election Commissioner. There are, however, several other matters dealt with in the Elections Rules that develop and supply the necessary detail to the framework of rights and duties envisaged by the provisions of the Elections Ordinance. These include establishment of polling stations, selection and appointment of polling staff, filing and scrutiny of nomination papers, allotment of elections symbols, monitoring and controlling of election day proceedings, compilation of results, oath of office of elected candidates and determination of election disputes. As such, the Elections Rules provide a complete code of rules for assuring the conduct and completion of fair, transparent and peaceful elections in furtherance of the statutory object of the Elections Ordinance. The question whether the Elections Rules, are by their detail and comprehensiveness in any way are repugnant to their parent statute, the Elections Ordinance, is clearly to be answered in the negative. This is because the purpose of subordinate legislation namely to define and effectuate the object of parent legislation is fully met in the present case. The settled test of validity of subordinate legislation is given very aptly by the Hon'ble Supreme Court in M/s. Mehraj Flour Mills and others v. Provincial Government and others (2001 SCMR 1806 at P.1811). "There is no cavil with the proposition that the rule shall always be consistent with the Act and no rule shall militate or render the provisions of the Act ineffective. The test of consistency is whether the provisions of the Act and that of the rules can stand together. Main object of rules is to implement the provisions of the Act and in case of conflict between them the rule must give way to the provisions of the Act. In any case, the rules shall not be repugnant to the enactment under which they are made" L (emphasis supplied).

10. That test reproduced above is satisfied amply by the Elections Rules. These rules neither militate the provisions of the Election Ordinance nor ineffectuate them. In the present context this view proceeds upon the observation that the Elections Ordinance specifies qualifications for candidates and elected members in section 14(1) thereof and also defines the election offences of corrupt practice and illegal practice in sections 22 and 26 thereof respectively. The Elections Rules provide the enforcement mechanism for the said penal provisions of the Ordinance. Thus under Rule 81, the election of a returned candidate can be declared void if (i) he is found under section 14(1) of the Ordinance to be not qualified for being elected or if (ii) his election is found to be procured by any corrupt or illegal practice as defined in section 22 and section 26 respectively of the Ordinance. It is obvious that by its aforesaid provisions, the Elections Rules supply the concrete D consequences of the contravention of substantive provisions of the Elections Ordinance. In this perspective the Elections Rules merely advance and enforce the substantive provisions of the Elections Ordinance and for that reason are complementary to, in furtherance of and therefore consistent with its object and provisions. The argument that by creating the forum of Election Tribunals, the Elections Rules have violated section 14(2) of the Elections Ordinance is fallacious and superficial. The fact that the Elections Rules provide a post‑election remedy for adjudicating the incurrence of disqualification makes it, at worst, concurrent with the remedy under section 14(2) before the learned Chief Election Commissioner. As explained above that does not either lead to conflict or vitiate the remedy under the Rules. Therefore the appellant's attack on the above premises cannot displace or disable the Rules from providing the aforesaid remedy.

11. Finally on this point, the appellant never raised a challenge to the jurisdiction of the Tribunal but participated in its proceedings heartily until their outcome against him both before the Tribunal as well as the learned Single Bench. The appellant is therefore estopped on two counts from raising the present objection. Firstly, he has raised it belatedly, not having done so either before the Election. Tribunal or before the learned Single Judge in the proceedings of writ petition. Secondly, having benefited from the framework and provisions of the Elections Rules by participating in. the election contest regulated thereby, the appellant cannot turn around from facing the consequences of his disability that is provided by the 'same Elections Rules. In other words the appellant cannot approbate and reprobate with respect to the same Rules.

12. Coming now to the appellant's reliance on section 196(3) of the Local Government Ordinance. This is a validating provision intended to protect incumbency in office and not to legitimize illegal candidature in election, as in the present case. This point therefore has no force. What remains to be considered is the factual dispute between the parties. In the exercise of its Constitutional jurisdiction this Court does not interfere in the findings of fact given by a competent Tribunal unless the same are perverse, which is not the case here. The learned Election Tribunal has considered the evidence on record carefully to arrive rightly at its finding of the appellant's disqualification on the ground of the admitted incomplete disclosure of his assets namely, agricultural land measuring 16 kanals situate in Chak No.348 JB, Tehsil Gojra, District Toba Tek Singh. The appellant's explanation that by virtue of the mortgage, his assets ceased to remain his property, in a plea that has no basis in law, and was rightly rejected. Furthermore the personal bond by the appellant, Exh.A‑13, executed on or about 27‑7‑2001 after the date of the election, admitted his liability to pay the outstanding amount by recording the payment of Rs.40,000 by him on 27‑7‑2001 to the Punjab Small Industries Corporation as well as making the promise to pay the remaining outstanding amount of Rs.1,68,885 to the said Corporation on 30‑9‑2001. This is an unambiguous admission of liability establishing the, appellant's status as a willful defaulter within the meaning of section 14(1)(i) of the Elections Ordinance.

13. In the light of what has been discussed above, this appeal is dismissed. M.B.A./S‑340/L Appeal dismissed.