2006 PLP 1356 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

Petitioners seek leave to appeal against the judgment, dated 22nd September, 2005 passed by Lahore High Court, Multan Bench Multan in Writ petition No.4694 of 2005. Concluding para. therefrom reads as follows:-- "

9. Writ petition accordingly is allowed and the impugned order, dated 26-7-2005 passed by the learned D.R.O., Vehari, accepting the nomination papers of respondents Nos.4 and 5 is declared to be without lawful authority and is set aside. Result would be that order passed by the learned R.O. rejecting the nomination papers of respondents Nos.4 and 5 on 24-7-2005 shall hold field. A copy of this order to be remitted to the learned D.R.O., Vehari. Records of the learned Judge Banking Court be remitted back immediately."

2. Precisely stating the facts of the case are that petitioners and the respondents filed nomination papers for contesting elections for the seats of Nazim and Naib Nazim in UC-80, Burewala, District Vehari. Respondents objected that petitioner No.2 Yasin Shafi is defaulter of Zarai Taraqiati Bank Ltd. (hereinafter referred to as "ZTBL") to the tune of Rs.5,206,125 and a sum of Rs.14,000 of PTCL against Telephone No.501140, installed in his name and Muhammad Yamin Shafi his real brother. The objection prevailed and the Returning Officer, rejected their nomination papers. on 24th July, 2005. The District Returning Officer allowed the appeal on 26th July, 2005 and their nomination papers were ordered to be accepted. Against the appellate order, one Javed Tariq son of Muhammad Din (respondent No.1) preferred a writ petition, which has been accepted vide impugned judgment. As such instant petition for leave to appeal has been filed.

3. Before dilating upon the respective contentions of the learned counsel appearing for parties, it is important to point out that ZTBL filed a suit against petitioner No.2 Yasin Shafi before the Banking Court. He filed an application for leave to appear and defend the suit, which was refused and the suit was decreed on 22nd July, 2000. Admittedly decree remained unsatisfied till the filing of the nomination papers. Under section 152(1)(j) of the Punjab Local Government Ordinance, 2001 (hereinafter referred to as "the Ordinance"), a person shall qualify to be elected or to hold an elective office or membership of a Local Government if he has not been adjudged a wilful defaulter of any tax or other financial dues owed to the federal, a provincial, or a local government or any financial institution, including utility bills outstanding for six months or more. Learned High Court in view of facts and circumstances of the case employed this provision of law and concluded that as admittedly respondent No.4 has been adjudged to be a defaulter of ZTBL, therefore, he has not qualified to contest the election.

4. Learned counsel appearing for petitioners contended that the learned High Court has illegally accepted, the writ petition, declaring Noor Muhammad (respondent No.4) to contest the election for the office of Nazim/Naib Nazim, in presence of alternative remedy of filing election petition, particularly in view of the fact that during pendency of the petition, polling had taken place and both the respondents were declared successful as Nazim/Naib Nazim of UC-80, District Vehari. Reliance in this behalf has been placed by him on Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 395; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 and Nazir Ahmad v. Chief Election Commissioner PLD 2002 SC 184.

5. On the other hand, Malik Muhammad Qayyum, learned Advocate Supreme Court appearing for respondents contended that as petitioner No.2 was admittedly disqualified to contest the elections as he has been adjudged defaulter of the ZTBL under section 152(1)(j) of the Ordinance, 2001, therefore, he had no lawful authority to be elected for the office of Nazim/Naib Nazim and when there are such admitted facts, then filing of election petition is not mandatory and the High Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) can declare the election of such candidate illegal.

6. We have heard both the sides and have gone through the relevant provision of law, which have been narrated hereinabove namely section 152(1)(j) of the Ordinance, 2001. It is nobody's case that petitioner No.2 Yasin Shafi had satisfied the decree passed by the learned Banking Judge against him, therefore, in such admitted position, two things are to be borne in mind; firstly under the scheme of the Ordinance, 2001, there is no constitutional bar of invoking jurisdiction of the Election Tribunal as it is provided under Article 225 of the Constitution, according to which no election to a house or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such a manner as may be determined by Act of [Majlis-e-Shoora (Parliament)]. In this context, this Court in the case of Election Commission of Pakistan v. Javed Hashmi (ibid) has held that "Article 225 is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commission and thus, to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge i.e. by election petition and that too if the process of the election is complete; whereas in the case of Ghulam Mustafa Jatoi (ibid) this Court observed that constitutional jurisdiction of the High Court can be invoked if the order of an election functionary which is patently illegal/without jurisdiction. Relevant para. therefrom is reproduced hereinbelow:-- "The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove." Above principle has been reiterated in the case of Aftab Shahban Mirani (ibid). Secondly, we have to keep in our mind that Rule 70 of the Punjab Local Government Election Rules, 2000 (hereinafter referred to as "the Rules, 2000") has excluded the jurisdiction for calling in question the election and this opinion has been formed without taking into consideration the judgment in the case of Ghulam Mustafa Jatoi (ibid) and Aftab Shahban Mirani (ibid).

7. We feel no hesitation in holding that if a statute has prescribed a remedy, normally the same should be adhered to but it does not mean that in a case where the order of the election functionary is patently illegal, the High Court would be debarred to exercise its constitutional jurisdiction which is much higher than the jurisdiction available to a Tribunal under a subordinate legislation.

8. Applying the above noted principle in instant case, it is to be observed that petitioner No.2 has been adjudged to be a defaulter to occupy the office, therefore, not only the respondent No.4 who was contesting the election but any other person can question upon him to show his authority to occupy the office, when he is disqualified under the relevant law to do so.

9. Thus, in view of above admitted and peculiar facts and circumstances, we are of the opinion that learned High Court had rightly interfered in the order passed by the District Returning Officer dated 26th July, 2005, whereby the petitioners were allowed to contest the election. For the foregoing reasons, petition is dismissed and leave declined. M.B.A./A-43/SC???????????????????????????????????????????????????????????????????????????????? Petition dismissed.