1993 PLP 600 (CLC)

‑‑‑‑Ss.17, 24 & 3 (1) (xxvii)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Acceptance of nomination papers challenged‑‑‑Illegal acceptance of nomination papers on account of inherent disqualification of candidate to contest election could appropriately be challenged before High Court through Constitutional petition‑‑‑Technical objections against Constitutional petition raised on part of candidate, could not be given weight as that would amount to denial of justice to petitioner. Malik Waqar Saleem for Petitioner. Irshadullah Chatha for Respondent. Date of hearing: 21st September, 1992. Fayyaz Ahmad petitioner as well as Muhammad Anwar respondent No.1. filed their nomination papers for the peasant seat of Union Council Jaunkalian, Tehsil Phalia, District Gujrat. At the lime of scrutiny of the nomination papers it is asserted that the petitioner raised objection to the nomination paper of Muhammad Anwar respondent on the plea that he is not qualified to contest the election for the peasant seat as he is not a peasant within the meaning of the definition given in section 3 (1) (xxvii) of the Punjab Local Government Ordinance, 1979, as he was owner of 95 Kanals of land According to the petitioner this objection was ignored and the nomination paper of the respondent was accepted by the Returning Officer on 9‑1‑1992.

2. The respondent resisted this petition by raising preliminary objections to the maintainability of this Constitution petition. It was asserted that the petitioner is estopped to avail Constitutional remedy as he has waived his right by not raising any objection at the time of acceptance of the nomination paper and that in any case the remedy available under the law should have been availed before invoking Constitutional jurisdiction. Learned counsel referred to section 17 of the Local Government Ordinance, 1979, whereunder an application can be submitted to the Authority against illegalities, if any, committed and to section 24 of the Ordinance which provides that election shall not be called in question except by an election petition. On merits, however, the respondent preferred to remain silent. It, therefore, stands impliedly admitted that the respondent was owner of more than 5 acers of land during the period of five years preceding the year in which election was held. As regards ownership it was not denied that the respondent owned 64 Kanals 11 Marlas in village Thatta Aalia and 30 Kanals 12 Marlas of land in village Gakhera Kalan, though before the date of filing of the nomination paper he nad disposed of most of the land in village Thatta Aalia and on the date of filing of nomination paper i.e. 7th January, 1992, he owned about 36 Kanals of land. The disposal of the land so made is of no avail to the respondent as he otherwise is disqualified to contest the election as a peasant. The definition of `peasant' given in section 3 (1) (xxvii) is as under:‑‑ "`Peasant' means a person who is a landless tenant or who during the period of five years preceding the year in which the election is held, has been the owner of not more than five acres of land and engages himself personally in cultivation for his maintenance."

3. It will, therefore, be seen that the petition is sought to be contested on the basis of technical objections. This petition was filed soon after the acceptance of the nomination paper of the respondent by the Returning Officer. It is not denied that no appeal lies against acceptance of nomination paper. No doubt section 17 of the Local Government Ordinance empowers the Election Authority to issue such instructions and exercise such powers as may be necessary for ensuring conduct of election honestly, justly and fairly but it does not confer a vested right on an aggrieved person. Moreover, the remedy of election petition was in any case not available to the petitioner at the stage when this petition was filed. Illegal acceptance of the nomination paper on account of inherent disqualification could appropriately be challenged before the High Court. In these circumstances the technical objections raised by the learned counsel for the respondent cannot be given weight as that will amount to denial of justice and to perpetuate an illegality. Muhammad Anwar respondent suffers from inherent disqualification as he is not a `peasant' within the definition of `peasant' given in the statute. As such he cannot be allowed to usurp the seat of a peasant.

4. For the reasons given above the acceptance of the nomination paper of respondent No.l is illegal with the result that the notification declaring the respondent as elected candidate to the seat reserved for peasant is hereby quashed. This seat shall now be filled in accordance with law. This petition thus succeeds and is accepted with cost. H.B.T./F‑63/L Petition accepted.