P L D 2006 Lahore 43 (PLP)

MIAN SAQIB NISAR, J.

The petitioner and respondents Nos.3 and 4, filed their nomination papers to contest the election for the seat of Peasant for Zila Council Rajanpur; the aforementioned respondents at the time of the scrutiny of the nomination papers, filed objections against each other, challenging the holding inter se, as being more than 5 acres of land; these objections were rejected by the Returning Officer and their nomination papers were accepted. Against the above, both the respondents filed appeals, before the District Returning Officer, but subsequently, these were withdrawn. The petitioner, who as stated above, too is the candidate for the same seat, has neither filed any objection to the nomination of the said respondents, nor appeals against the acceptance of their nomination papers. But has preferred this Constitutional petition, on the basis of the judgment of the Honourable Supreme Court dated 15-8-2005, in the case C.P. No.2137/2005, titled Qazi Nazir Ahmed v. Returning Officer U.C. Sahoo Wala and two others.

2. Learned counsel for the petitioner contends that admittedly, respondent No.3 is the owner of 400 Kanals of land at Kacha Chowhan and 50 Kanals at Mauza Meeran Pur, therefore, he is not qualified to contest the election as a Peasant; thus notwithstanding the inter se withdrawal of the appeals by the respondents, when the requisite proof/material was available on the record of the forums below, particularly with the DRO, envisaging that the holding of the respondent, was more than 5 acres and thus he lacked the basic and inherent qualification to contest for the seat of the Peasant, it was the duty of the RO,/DRO to reject their nomination papers. In this behalf, reference is made to the record of rights for the year 2000-2001, pertaining to respondent No.3, showing one of his holding as 113 Kanals and 10 Marlas.

3. The respondent No.3, along with his counsel is present in the Court, I have questioned him about his holding, he states that he was the owner of 80 to 100 acres of land, but has transferred part of it to his children/family through gifts and 113 Kanals 10 Marlas, mentioned above, have been transferred in favour of one Sardar Ajmal Khan Mazari son of Sardar Muhammad Khan, vide agreement to sell dated 13-5-2001; but when further inquired, it is conceded that yet the sale transaction has not been finalized and according to the Revenue Record, he still is the owner of the said land. However, his counsel has placed on the record, A this agreement, which is marked "A". Anyhow, the learned RO while dealing with the objection about the qualification of respondent No.3, as a Peasant, in his order dated 16-9-2005 has held. "On behalf of the objector/petitioner, a copy of record of rights for the year 2000-2001, has also been produced, but the same does not seem to depict the latest position of the ownership of the candidate as it is an extract obtained from the copying agency. Sardar Muhammad Afzal Khan states that he has sold most of his land and he presently owns only five acres of land. His statement seems to be correct in view of the copy of record of right, filed by him along with the nomination papers. " From the above reproduced part of the R.O.'s order, it is clear that as against the Jamabandi for the year 2000-2001, he did not require the respondent No.3, to show, if the land mentioned in the Jamabandi, is presently, not owned by him; he also did not take pains to verify from him, about the particulars of the transfers /sales, which according to the said respondent, he had made out of his holding, were during the period of five years preceding the election year or otherwise. If the RO, who B under the provisions of Rule 14(3) of the Election Rules, had the suo Motu power, which was akin to a duty had conducted such summary inquiry, as he deems fit, to satisfy that the respondent was qualified or not to contest the election, the situation of accepting the nomination papers of an inherently unqualified person could have been avoided. This also was the duty enjoined upon the DRO, before whom on the record, the Jamabandi for the year 2000-2001 was available, to have applied its independent mind and should not have permitted the respondents to IB' withdraw their respective appeals in a mechanical and routine manner. Because according to the law, the object behind the creation of special seats of Peasants /workers is to give representation to a special class of people, who otherwise on account of certain rigours of contesting the general election, may not be able to seek representation and thus stands precluded from their participation in the affairs of the local governance at the grass root level. And, if a person who does not squarely fall within the class of Peasant/Worker, rather is an established landlord or the businessman, etc. is permitted to contest the election in the guise and garb of special class, it deprives and usurps the rights of the deserving people. This usurpation by disqualified persons undoubtedly is not permissible under the law, thus if they are allowed to contest the election on these special seats, it shall tantamount to be a fraud upon the statute, which under no circumstances can be allowed, resultantly, keeping in view the admission of the respondent made before me today; the documents which were available with the RO/DRO, the Mark A, placed D on the record, it is clearly established that the respondent at least is still the owner of 113 Kanals 10 Marlas; the agreement to sell under the provisions of section 54 of Transfer of Property Act, 1882 does not create or purport to create any right or interest in the immovable E property therefore, the ownership of this land has not been legally transferred to Sardar Ajmal Khan Mazari; besides the agreement is of the year 2001 and five years from the year of election have not lapsed, on) this account too, the agreement to sell does not bring the case of the respondent within the purview of the definition clause of the Peasant.

4. On the basis of all such admitted facts, and the legal position, I am constrained to hold that the respondent No.3, is not qualified to contest the election for the seat of Peasant and his nomination papers have been illegally and unlawfully accepted by the R.O. vide order dated 16-9-2005, which is hereby set aside, with the result that his nomination papers stands rejected. 4-A. As regards the respondent No.4, is concerned, vide order dated 22-9-2005, notices were issued to him telegraphically, through registered post and also through courier service, still he did not opt to appear on 27-9-2005, when the case was fixed and his candidature was suspended. Today he again is not present and therefore, he is proceeded ex parte.

5. According to the facts of his case, especially in the appeal filed by respondent No.3, against him, in the memorandum of appeal, it is mentioned that the said respondent is the owner of 87 Kanals and 4 Marlas of land; the relevant copy of the record of rights was also filed along with the appeal, this document is on the file, wherefrom it is clearly established that in Chak Chandkeh, Tehsil Rojhan, District Rajanpur, respondent No.4 is the owner of 87 Kanals and 4 Marlas. This Jamabandi has been issued by the Revenue Authorities on 17-9-2005, and is latest in time, on account of which, it is vivid, that he too has the holding in excess of the qualification of a Peasant and therefore, was/is not qualified to contest the election. It may be pertinent to state here that in the appeal before the DRO, which as mentioned earlier, was allowed to be withdrawn in a mechanical manner, this document was admittedly on the record and if the DRO had discharged his obligations in terms of rule 14(3), the situation of withdrawal and permitting respondent No.4 to contest the election, could have been avoided. I am of the considered view that as both the respondents were disqualified, they though firstly attacked each other but then joined hands and in a collusive and oblique manner tried to play fraud upon the law to facilitate each other by withdrawing their appeals and thus attempted to prevent the election of the genuine and qualified persons. Therefore, the order of the RO dated 16-9-2005 accepting his nomination papers is also declared to be illegal and unlawful and his papers stands rejected. In the light of above, this petition is allowed. S.A.K./M-1320/L Petition accepted.