P L D 2004 Lahore 762 (PLP)

(4) Whether this petition is not maintainable and liable for dismissal under Rules 70, 71 and 72 of the Punjab Local Government Election Rules, 2000?OPR. (5) Relief. Evidence of the parties was recorded. Issues Nos. 1 and 4 were answered against the petitioner. Issue No.2 was answered in the light of finding on issue No. 1 while issue No. 3 was declared redundant. The learned Election Tribunal proceeded to declare the election of the petitioner to be void and further to declare Abdul Latif respondent No.3 as returned vide judgment dated 12-4-2003.

2. Syed Muhammad Ali Gillani, learned counsel for the petitioner, contends that the learned Election Tribunal read into the Statute some thing which was not there i.e. that the prescribed age was to be determined with reference to the date of filing of the nomination papers. According to him, there is no such provision in the PLGEO, 2000 and the Rules framed thereunder which governed the said election. Rana Miraj Khalid, learned counsel for the respondent, on the other hand, supports the impugned judgment of the learned Election Tribunal with the plea that the relevant date was the date of filing of the nomination papers.

3. It will be noted that the matter has been argued before me on the assumption that the date of birth of the petitioner was 6-5-1976 as held by the learned Election Tribunal.

4. Now there is no dispute that according to the election schedule issued by the learned Chief Election Commissioner, the nomination papers were to be filed from 21-4-2001 to 27-4-2001. The nomination papers were filed by the petitioner on 24-4-2001. These were subjected to scrutiny by the Returning Officer on 3-5-2001. The objection filed by the said Badar-ud-Din was upheld and the papers were rejected. Againstl8 this order, an appeal was filed by the petitioner and the other candidate within the time prescribed. The appeal was decided by the D.R.O., Multan, on 8-5-2001 and the papers were accepted. The election was held on 31-5-2001 and the results were declared thereafter. Now the petitioner, as per date of the birth 6-5-1976 attained the age of 25 years

5. Now in the impugned judgment, the learned Election Tribunal has discussed the matter under issue No.1. He has referred to the evidence on record and has proceeded to hold that the date of the birth is 6-5-1976. The learned Election Tribunal has concluded that the relevant date for determination of the qualification would be the date of filing the nomination papers. The reason recorded is that since in Rule 16 of the PLGE Rules, 2000, the person whose name is proposed or seconded has to be duly qualified person to be a candidate for becoming a member of that ward, the date would be the date of filing of nomination papers.

6. Now section 14 of the PLGEO, 2000, prescribes the qualifications for candidates and elected members. The relevant portions read as follows:- "

14. Qualification 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,

(b) is at least twenty-five years of age.". It will be seen that upon a plain reading the said provision of law states that a person who is at least 25 years of age would be qualified to be elected or to hold an elective office or a membership of a Local Government. In the said entire Ordinance, there is nothing to suggest that the said qualification is to be held on the date of filing of nomination papers.

7. To my mind, the opening lines of the said section 14 governed the qualifications enumerated therein. The qualifications are relatable to being elected or holding an elective office or membership of a local government. This being so, in the absence of any provision to the contrary, the relevant date would be the date of election or at the most the date, which is the said date of the publication of the list of contesting candidates and symbols allotted to them and it is on this slate that the constituency has the notice as to for whom they may cast their votes. Node this is a date after the decision of the appeal in the manner prescribed i.e. in the present case after 8-5-2001 when admittedly the petitioner was of 25 years of age.

8. Now I may note here that upon a reading of section 14 of the said Ordinance, 2000, it cannot be said at all that it was the intention of Legislature that the relevant date for determination of the age would be the date of filing of the nomination papers. Had it been so, there was no bar in setting down the said date. I may refer here to section 20 of the erstwhile Punjab Local Government Ordinance, 1979. Now one of the qualifications prescribed for a person to be elected as and to be a member of an electoral unit of a local council was that he had attained the age of 25 years. Now in section 20(b) it was categorically laid down that the said person must have attained the said age of 25 years on the last date fixed for the filing of nomination papers. Now the said legislation enacted in the year 2000 is somewhat in para material and the omission of the Legislature to fix the said date does lead one to the conclusion arrived at by me above i.e. that the Legislature did not intend the date of filing of the nomination papers to be the date to consider or determine the age of the candidate.

9. Now coming to the said reasoning of the learned Election Tribunal it is true that Rule 16 (2) of the PLGE Rules does provide for proposal and secondment of the name of any duly qualified person to be a candidate for becoming a member of that ward. The learned Election Tribunal perhaps failed to take note of Rule 81(1)(b) of the same Rules which lays down 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 as a member or Nazim or Naib Nazim, as the case may be. However, it is a well-settled rule of interpretation that Rules framed under an Act or Ordinance would not derogate from the provisions of the parent statute itself and. if there is any inconsistency, the provisions of the parent statute are to prevail. I have already noted above, that no such restriction is to be read in section 14 of the Ordinance which lays down the qualification for being elected or to hold an elective office or membership of a local government. In other words, the provisions of the said Rule would not override the provisions of the law under which the, same were framed.

10. Now without there being any allegation and any evidence that the constituency had the notice of the said alleged disqualification, the learned Election Tribunal has proceeded to declare the respondent No .3 elected. This is in clear violation of the law consistently laid down by this Court as well as the Hon'ble Supreme Court of Pakistan. Reference may be made to the case of Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others (2003 SCMR 1611).

11. For all that has been discussed above this writ petition is allowed. The impugned judgment dated 12-4-2003 of the learned Election Tribunal Khanewal is declared to be without lawful authority and is set aside. No orders as to costs. M.I./M-639/L Petition allowed