1984 PLP 1441 (CLC)

‑‑ R. 2 (1)(a)‑Provisional Constitution Order (1 of 1981), Art. 9 "Candidate" ‑"Nomination"‑Definitions‑When there was no pro poser or a seconder there was no question of any person being "nominated" as "candidate" ‑‑Seconder shown to have seconded nomination paper appearing before Returning Officer and denying having seconded "candidate" resulting in rejection of nomination papers‑Appeal against rejection of such paper also rejected by appellate authority‑Orders of rejection, having become final, peti tioner was not a "nominated" person to be a "candidate" so as to be entitled to file an election petition in circumstances. (b) Punjab Local Councils (Election) Rules, 1979‑ .‑‑ R. 2(1)(a)‑Provisional Constitution Order (1 of 1981). Art. 9 Nomination papers, rejection of‑Constitutional petition dismissed on ground that contention regarding seconding of petitioner was a question requiring factual enquiry which could not be made by High Court in Constitutional jurisdiction‑Observations of High Court at preliminary stage while dismissing petition in limine that "the petitioner can avail of the alternate remedy of filing an election peti tion before Election Tribunal", held, did not confer a right on petitioner which he, otherwise, did not possess. ‑‑ Art. 9‑Jurisdiction‑High Court in previous constitutional petition observing that controversy required factual inquiry which could not be undertaken in constitutional jurisdiction‑Held, neither order passed in previous writ proceedings could be reviewed nor factual inquiry undertaken in subsequent proceedings under consti tutional jurisdiction. ABDUL SHAKURUL SALAM, .J.‑The case of the petitioner as stated by the learned counsel is that the petitioner filed nomination papers for which 7th September, 1983 was given to him as the date for scrutiny. However, on September, 1983 his nomination papers were rejected on the ground that 8th seconder had appeared and stated that he had not seconded the proposal and that he was not prepared to second the nomination papers. The petitioner challenged the order by means of an appeal which 'was dismissed by the learned appellate Authority, Sargodha on 11th September, 1983 on the ground that "as per order of the Returning Officer, Faiz Abbas seconder refused to second the appellant. Today he has not turned up which in dicates that he does not want to second the appellant. Hence, rejected". The petitioner filed Writ Petition No. 4107/83 which was dismissed in limine with the following observation. "In order to ascertain the fact whether or not Faiz Abbas seconded the name of the petitioner and voluntarily signed the required decla ration on the latter's nomination papers a factual inquiry will have to be made which exercise cannot be undertaken by this Court. The petitioner can avail of the alternate remedy of filing election petition before the Election Tribunal. This petition is not maintainable and is dismissed in limine." This was vide order, dated 3rd October, 1983. The petitioner then filed an election petition and the same has been dismissed by the learned Election Tribunal on the ground that the same was not maintainable as an election petition can only be filed by a `candidate' and since the nomination papers of the petitioners were not seconded and were rejected and appeal against that order having failed and the order having become final, the petitioner was not a candidate to maintain the election petition. This was vide order dated 15th February, 1984. Hence, this writ petition.

2. Learned counsel for the petitioner has submitted with reference to section 2 (1)(a) of the Punjab Local Councils (Election) Rules, 1979, that a candidate is defined to mean, "a person who has been nominated for election as member of a local council from an electoral unit" and it is con tended that it does not matter whether the nomination papers had been re jected or not.

3. A perusal of the definition aforequoted would show that a candi date is a person who has been nominated for an election as a member of the local council for an electoral unit. The nomination is, under the law, by a person who proposes another as a candidate and same one seconds him. If there is no proposer or a seconder there is no question of any person being nominated a candidate. In the case in hand, the seconder who was shown to have seconded the nomination papers of the petitioner appeared before the A Returning Officer and denied having seconded the petitioner as a candidate. The nomination papers were rejected. Petitioner's appeal against this order was rejected by the appellate authority. The order be came final. Therefore, the petitioner was not a nominated person to be a candidate so as to be entitled to file an election petition. The contention of the learned counsel for the petitioner that the petitioner had challenged the orders of rejection of his nomination papers through a Constitutional Peti tion which was dismissed on the ground Oat the petitioner had an alternate remedy of filing an election petition, therefore, the election petition filed by him needed determination on merits, is not well‑founded. The Constitu tional Petition had been dismissed on the ground that the contention re garding the seconding of the petitioner by Faiz Abbas was a question, requiring factual inquiry which could not be made by the High Court. The observation that the petitioner can avail of the alternate remedy of filing an election petition before the Election Tribunal", obviously meant that the petitioner can do so if he is otherwise entitled under the law to do. By the observation at the preliminary stage while dismissing the petition in limine the learned Division Bench was not conferring la right on the petitioner which he, otherwise, did not possess. The learned counsel then contended that this petition also relates to challenging the rejection of the nomination papers. The petition has obviously no force because the learned Division Bench previously dealing with the matter had observed that the controversy required factual inquire which could not be undertaken in the writ jurisdiction. Neither the order can be reviewed nor factual inquiry undertaken in these proceedings.

4. In view of what has been stated above, this petition is dismissed. M.Z.M Petition dismissed.