2006 PLP 324 (CLC)

ABDUL SHAKOOR PARACHA, J.

On 30-7;2005, the nomination papers of the petitioners for the seat of Nazim and Naib Nazim for the Union Council No.25,' Mado Kalas, District Jhelum were rejected by the Returning Officer on the objection of rival candidate i.e. respondent No.3. The precise objections on the nomination papers of the petitioner Nayyer Iqbal was that he was compulsory retired from police service on corruption charges and he had concealed his immovable property situated at Village Channi and Peer Putcher in his declaration of assets of Form XIX under Rule 12(4) of the Punjab Local Government Elections Rules, 2005. The Returning Officer relied on the record of the Record of Rights for the year 2001-2002 of the Revenue Estate of village Peer Putcher and of year 2002-2003 of the Revenue Estate of Village Chhanni which record showed that the candidate was owner of land measuring 9 Marlas and land measuring 7 Kanals and 2 Marlas in villages Peer Patchar and Chhanni respectively and there was an admission on the part of the candidate regarding the above said ownership. The appeal filed by the petitioner was dismissed by the District Returning Officer vide his order dated 2-8-2005, hence, this writ petition.

2. The learned counsel for the petitioner contends that the nomination papers could have only been rejected under Rule 14(2) if there would have been declaration by the Chief Election Commissioner under section 152(2)(a) of the Punjab Local Government Ordinance, 2001 that the candidate on being contravened the provisions of subsection (1) shall stand disqualified from being a candidate for election to any office of the Local Government for a period of four years. His precise contention is that since there is no declaration on the mandate of section 152(2) of the Local Government Ordinance, 2001 of the Chief Election Commissioner, therefore, the order of the Returning Officer is not sustainable. Reliance has been placed on the case of Qaiser Rashid Bhatti and 3 others v. Secretary, Government of the Punjab, Local Government Commission, Lahore and 3 others 2003 CLC 1936. Further contends that there is no concealment of assets by the petitioner Nayyer Iqbal. He contends that the petitioner was removed from service on disciplinary grounds, therefore, the provision of section 152(1)(h) is not attracted in the facts and circumstances of this case.

3. Chaudhry Fawad Hussain learned counsel for respondent No.3 has entered appearance and accepts notices on his behalf and contends that section 152(2) of the Local Government Ordinance, 2001 deals with the post-election scenario and if the same candidate being contravened the provisions of subsection (1) of section 152 of the said Ordinance he shall stand disqualified from being a candidate for election to any office of the Local Government for a period of four years. Further contends that the judgment of this Court in the case Qaiser Rashid Bhatti and 3 others v. Secretary, Government of the Punjab, Local Government Commission, Lahore and 3 others 2003 CLC 1936 does not apply to the present case. There was clear concealment of assets regarding his property situated in the Revenue Estate of Peer Putcher and the Revenue Estate Chhanni Gujran, therefore, the provisions of section 152(1)(i) were attracted. The petitioner was not qualified to contest the election of the Local Government. Reliance has been placed on the case of Abbas Khan and another v. Appellate Authority, District and Sessions Judge, Attock 2002 SCMR

398. Adds that the order of compulsory retirement passed by the competent Authority annexed with this petition at page 14 would show that the petitioner Nayyer Iqbal constable was compulsory retired from service being malingerer and thorough corrupt official, therefore, he has been rightly declared as disqualified as per provisions of section 152(1)(h) of the Punjab Local Government Ordinance, 2001.

4. Section 152(2)(a) caters the post-scenario/situation of the elections and the candidate can be declared disqualified by the Chief Election Commissioner to have contravened the provisions of subsection (1) of section 152 shall stand disqualified from being a candidate for election to any office of the Local Government for a period of four years. To my mind to cater the post-scenario situation the provision of section 152(2)(b) has been inserted in the Punjab Local Government Ordinance, 2001 because the proceeding of disqualification under section 152(1) of the Ordinance (ibid) have to be initiated on an application made by any person or by the Chief Election Commissioner on his own motion against a member, Nazim or Naib Nazim and the Election Commission or any authority authorized by it may issue a notice to show cause to a member, Nazim or, as the case may be. The words "Member", "Naib Nazim" and "Nazim" are defined in sections 2(xix), 2(xxiii) and 2(xxiv) of the Punjab Local Government Ordinance, 2001 which means an elected member, Naib Nazim and Nazim of their council. This Court in the case of Qaiser Rashid Bhatti and 3 others v. Secretary, Government of the Punjab, Local Government Commission, Lahore and 3 others 2003 CLC 1936 while interpreting the provisions of section 152(1)(p)(2) and 161 of the Punjab Local Government Ordinance, 2001 has recorded that "only the Chief Election Commissioner either of his own motion or on an application of a person, could pass orders of removal of Naib Nazim on ground of absence after following procedure laid down in section 161 of the Punjab Local Government Ordinance, 2001".

5. In the declaration Form XIX under Rule 12(4) of the Punjab Local Government Elections Rules, 2005, the petitioner Nayyer Iqbal did not disclose the land owned by him in the villages Pir Putcher and Chhanni Gujran. He was owner in possession of land 9 Marlas and land 7 Kanals and 2 Marlas in the above Revenue Estates. Therefore, the provision of section 152(1) was attracted. The petitioner concealed his assets in his declaration form therefore, he was disqualified to contest the C elections of the Local Government. Reliance can be placed on the case of Abbas Khan and another v. Appellate Authority, District and Sessions Judge, Attock 2002 SCMR 398.

6. The order of the competent authority dated 14-1-2003 annexed at page 14 of this petition shows that the petitioner Nayyer Iqbal was a constable and he was removed from service by recording a finding. "Besides being malingerer he is thoroughly corrupt official". Section 152(1)(h) reads as follows:-- "S.152(1)(h) has not been dismissed, removed or compulsorily retired from public service on the grounds of moral turpitude."

7. It has been proved from the record that the petitioner was removed from service on the ground of moral turpitude because a person involved in corruption can be said to have committed a moral offence. The Returning Officer had the jurisdiction to reject the nomination papers. The appeal has been dismissed by the competent authority. Concurrent findings, based on the correct appreciation of the documents by a competent Tribunal cannot be interfered with by this Court in exercise of its constitutional jurisdiction. This being so, this petition is dismissed. F.M./N-107/L Petition dismissed.