1989 PLP 3983 (MLD)

NAZIR AKHTAR, J.‑‑Through this constitutional petition, the petitioner has called in question the competence of respondent No. 1 to hold the membership of Union Council No. 46,Tehsil Chichawatni, District Sahiwal. He has prayed for a writ of quo warranto against respondent No. 1 to the effect that he had no authority under the law to hold public office of a member of the said Union Council.

2. Briefly stated the facts of the case are that the petitioner is a resident and voter of Chak No. 110/7‑R, Union Council No. 46, Tehsil Chichawatni, District Sahiwal. Syed Afzal Hussain Naqvi, respondent No. 1, contested the election to the membership of the said Union Council for the special interests seat reserved for peasants. He was declared elected on 24‑12‑1987 and thereafter he contested the election for the office of Chairman of the Union Council, filed his nomination papers on 28‑12‑1987 and was declared elected by the. Returning Officer, Chichawatni, on 4‑1‑1988. He was duly notified by the Deputy Commissioner, Sahiwal, respondent No. 3, as the Chairman of the said Union Council.

3. The main ground urged by the learned counsel for the petitioner is that the answering respondent does not fall within the definition of "peasant" given under subsection (27). of section 3 of the Punjab Local Government Ordinance, 1979. According to the learned counsel, respondent No. 1 is the neither a landless tenant nor a person owning less than five acres of land and personally engaged in cultivation of the same for his maintenance. On the other hand, the learned counsel for respondent No. 1 has urged that respondent No. 1, is a "peasant" within the meaning of the law. He has drawn our attention to the document Ex. R‑11 annexed to the rejoinder, which shows that respondent No. 1 is a tenant under Mst. Munawar Begum, his mother. As regards ownership of land by respondent No. 1, ii is submitted that he had inherited only 23 marlas of land from his father, which has since been sold by him. According to the learned counsel, no disqualification is attached to respondent No. 1 in respect of the office held by him. Hence, the writ of quo warranto does not lie against him.

4. The election of respondent No. 1 is under challenge before the Election Tribunal. One Khushi Muhammad son of Marra has filed an election petition almost on the same grounds, which are embodied in the present writ petition and the same is pending before the Election Tribunal, Chichawatni. Two other election petitions; one filed by Bisharat Gillani, a rival candidate in the election of the Union Council, and the other by Lal Din son of Fateh Muhammad, urging the same grounds are also pending before the Election Tribunal, Chichawatni. None of the petitioners, who filed the above referred election petitions, have been impleaded as respondents in the writ petition. If the present petition is decided on merits, it will have the effect of causing prejudice to either party in the election petitions, which are pending before the Election Tribunal. The three election petitioners, who have approached the Election Tribunal, are entitled to have their petitions adjudicated upon on merits in accordance with the law. As mentioned above, they have not been impleaded as respondents in the present petition, and in case of an adverse decision, would be condemned unheard.

5. For the foregoing reasons, we are not inclined to exercise our discretionary jurisdiction under Art. 199 of the Constitution of Pakistan in the present controversy between the parties. The question as to whether respondent No. 1 is a peasant within the meaning of the law or not shall be decided by the Election Tribunal, Chichawatni, in the three election petitions pending before it. The petitioner expressed an apprehension that the matter before the Election Tribunal has been lingering on and might be delayed further at the instance of respondent No.

1. We direct the Election Tribunal to decide the election petitions in accordance with the law by the 30th of May, 1989. The progress of the proceedings shall be intimated to this Court by the Tribunal after every fortnight. The writ petition is disposed of with the above observations. H.B.T./Z‑123/L Order accordingly.