2003 PLP 1555 (YLR)

GHULAM NABI SOOMRO, J.‑‑ This Constitutional petition calls in question the judgment of learned District Judge, Ghotki/Election Tribunal for Sukkur, dated 12‑4‑2002 whereby he dismissed the election petition of the petitioners with costs. The brief facts giving rise to this petition are that the two petitioners contested Local Government Elections for Union Council No.9, Old Sukkur, as Union Nazim and Naib Nazim under the provisions of rule 16(3)(ii) as joint candidates, held on 21‑3 2001 under the provisions of The Sindh Local Government Elections Ordinance, 2000 and the Rules framed thereunder. They had, therefore, filed their nomination form in Form III(B) on 23‑2‑2001. The respondents Nos. 1 to 8 were also the contesting candidates. The respondents 3 to 6, however, did not take any interest in the proceedings. At the conclusion of the poll, the respondent No. 1 namely Muhammad Ayoob and the respondent No.2 namely Muhammad Akram having secured the highest votes were declared returned as Union Nazim and Naib Nazim respectively. The petitioners secured next best number of votes. Having come to know that the respondent Muhammad Ayoob (No.2) was in Government service and had not completed a period of six months before his participation in the election, they filed an Election Petition before the Election Tribunal, ‑who dismissed the petition as stated above. We have heard the learned counsel for the parties and also perused the case- law cited by them in support of their contentions. There is no dispute about the fact that the respondent Muhammad Ayoob was a Government servant (a teacher) and had retired on 30th August, 2000. The contention of the learned counsel for the petitioners was that the respondent Muhammad Ayoob being a secondary school teacher in the Department of Education, Government of Sindh, had retired from service on 30‑8‑2000 and a period of six months as required under section 14(g) had not elapsed since his retirement, and that the period of six months would expire on the day when such nomination form was tiled, whereas the contention of the counsel for the returned candidates (respondents Nos. 1 and 2) was that it would be the polling day or the day on which scrutiny of nomination papers was conducted. In support of their respective contentions, the petitioner relied upon 1998 SCMR 2419 (2425) whereas the respondents referred to 1985 CLC 2190, 1982 SCMR 1086 and PLD 1986 Kar.

46. The sole question for determination before us is as to "what would be the material date on which such period of six months as required under section 14(g) of the Ordinance would end. For the sake of convenience of perusal, it appears pertinent to reproduce the relevant provisions:‑‑ Section 14 (of the SLG Elections Ordinance, 2000) "

14. Qualifications for candidates and elected members.‑‑‑A person shall qualify to be elected or to hold an elective office or membership of a local government, if he‑‑ (g) is not in the service of the Federal, a Provincial or a local Government or; any statutory body or a .body which is controlled by any such Government or, in which any of such Government has a controlling share or interest, except the holders of elected public office and part‑time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from such service, a period of not less than six months has elapsed since his retirement." Rule 82 (of the SLG Elections Rules, 2000)‑‑ "

82. Grounds of declaring election of returned candidate void.‑‑‑(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that‑‑ (a) the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Nazim or Naib Nazim, as the case may be; or (c) ...... (d) ...... " It will also be pertinent to reproduce the relevant part of the Nomination Form (3‑B) as well, "A ..... B..... C..... D. Declaration by the joint candidates‑‑‑ We, (1)__________________________ s/o__________________ and (2) _________________ s/o ___________________ hereby declare on solemn affirmation as under:‑‑ (1) That we have consented to the above nomination as joint candidates for the offices of Nazim and Naib Nazim of Union _________________. (2) That we have carefully read the qualification for being candidate as member and as a Nazim or a Naib Nazim of a union, provided under section 14 of the Sindh Local Government Elections Ordinance, 2000 and the Election Rules made thereunder. (3) That both of us viz. (1) ____________________ s/o ____________________ and (2) ____________________ s/o ____________________ are fully qualified respectively to be the Nazim and Naib Nazim and are not hit by any adverse qualifications which may render any of us ineligible for being Nazim and Naib Nazim of a Union. (1)_______ (2) _______ Signatures E ........ F . " From the plain reading of the above mentioned provisions, it is clear that section 14 mentioned supra does not specify the cut off date. In Rule 82 of the above referred rules, clause (b) of sub‑rule (1) clearly provides that the material day for determination of the period would be the nomination day. Such provision is further, strengthened by the Nomination Form III(B)' reproduced above, wherein in its part 'D' both the candidates have to declare on solemn affirmation, inter alia, that they are fully qualified under section 14 of the Ordinance to be elected as such. This declaration by the candidates is on solemn affirmation on the day on which the Nomination Form is filed. Admittedly the Nomination Form was filed by the respondents on 23‑2‑2001 on which date the period of six months, as required under section 14 was short by six days respondent Muhammad Ayoob thus as per his own solemn affirmation on the day of filing of the Nomination Form was not qualified to contest such seat. His declaration g as aforesaid in the Part 'D' of the Nomination Form turns out to be a mis-declaration or a wrong declaration. Clause (b) of the rule 82 makes it very clear by providing that the Tribunal shall declare the election of the returned candidate to be void if it is satisfied that the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Nazim or Naib Nazim, as the case may be. Mr. Lachhmandas, learned counsel for the petitioner has contended that a Court should interpret the provision of statute by giving the words their ordinary meaning. He has referred to the case reported as 1988 SCMR 2419. Mr. Manzar Alain, learned counsel for the respondents 1 and 2 placed his reliance upon a DB decision of this Court in the case of Muhammad Saad Shibli v Commissioner (1985 CLC 2190) and referred to para. 18 of the judgment at page 2201. The point in issue in that case was whether the candidate who was below the required age of 25 years on the nomination day but had completed his 25 years of age on the election day which took place just four days after such nomination on 26‑9‑1983, should be de-seated. It was held that the date of the election will be the material date to fulfil the requirement of the provisions of section 37(1)(b) of the Ordinance (SLG Ordinance, 1979). In view of the above and such other grounds, like, that the returned candidate was a sitting Councillor and according to electoral roll, he had attained the age of 25 years on the day of scrutiny of his nomination form, he returned candidate's case was not found to be one of deseating him. With utmost respect for the above decision, we do not find it helpful to the respondents' case, in that, the provisions of section 14 are a barring provision and the question to be determined in this petition is not the same. Next case reported as Ch. Muhammad Hussain v. Election Tribunal and another (1982 SCMR 307) would also be not helpful to the respondents as it is on a different point. However, in para. 16 of this judgment it is observed by the Honourable Supreme Court "that the requirement of the minimum age of 25 years is a Constitutional provision. It is an essential qualification for a candidate in section 20 of the Punjab Local Government Ordinance. It is clearly provided that only such person who has attained the age of 25 years on the last date fixed for filing the Nomination Form shall be qualified to be a candidate for election to an electoral unit of a local council". The case reported as PLD 1986 Kar. 46 being on different facts is hardly applicable to the present case. In the case reported as Muhammad Mansha and others v. Government of Punjab (1984 CLC 2231), the material date determining expiry of period of two years was declared to be the date of filing of the Nomination Form. The established principles of interpretation of statutes are that the interpretation should be natural, appropriate and should give the words their ordinary meaning. The rules have the same force as the provisions of the statute under which they are framed. In view of the above discussion, in our opinion, the respondent having not completed the period of six months on the day of tiling of Nomination Form suffers from disqualification as envisaged under section 14(g) of the SLG Elections Ordinance, 2000 and the Rules framed thereunder. Resultantly, we allow this petition and set aside the impugned judgment dated 12‑4‑2002 of the learned Election Tribunal and declare the election of the respondent No.1 (Muhammad Ayoob) to be void and order for holding of fresh elections in accordance with law. There shall, however, be no order as to costs. The above petition was allowed by a short order dated 20‑11‑2002. Above are the reasons for the same. M.B.A./U‑30/K Petition allowed.