2004 PLP 300 (CLC)

Malik Waqar Salim for Petitioner. Muhammad Asif Khan petitioner has challenged the notification, dated 14-10-2003, whereby, respondent No.6 was notified as officiating Nazim of Union Council 153 (Ghuma) Tehsil. Kamoki District Gujranwala.

2. Briefly the facts of the case are that the petitioner was elected Nazim of Union Council 153 (Ghuma) Tehsil Karrioki, District Gujranwala during last local bodies elections. Bye-election of Tehsil Nazim Kamoki was announced for 8-9-2003. Petitioner and one Sajjad Ahmad filed nomination papers before Returning Officer, later raised two objections against acceptance of nomination papers of petitioner namely that he has not resigned from the office of Nazim Union Council No. 153 (Ghuma) so he is disqualified to contest the election of Tehsil Nazim under section 158 of Punjab Local Government Ordinance, 2001 and he is willful defaulter of National Bank of Pakistan. Both the objections raised by Sajjad Ahmad Khan were overruled on the ground that the petitioner has resigned from the office of Union Nazim before filing of nomination papers on 7-8-2003, therefore, disqualification under section 158 of Punjab Local 'Government Ordinance is not attracted. Similarly, he was not adjudged as bank defaulter, and said objection too was overruled. The Returning Officer dealing with the resignation of the petitioner in para. 4 of his order, dated 20-8-2003 observed that he has placed on record copy of his resignation dated 7-8-2003 (before filing of nomination papers) addressed to the Naib-Zila Nazim, Gujranwala which the objector could not rebut successfully. Similarly, District Returning Officer upholding the aforesaid judgment observed in para. 5 of his order, dated 23-8-2003 as under:

"In the given circumstances, I am satisfied to hold that the case of the respondent No.1 is not hit by the provisions of section 158 of the Punjab Local Government Ordinance, 2001 and he has- genuinely and voluntarily submitted the resignation before the concerned authority."

3. Sajjad Ahmed dissatisfied with the order of R.O. and District R.O. instituted Writ Petition No.11482 of 2003 which was dismissed by me on 5-9-2003. The operative part is reproduced hereunder:-- "The case of the respondent is- that he has already resigned on 7-8-2003 , before filing of nomination papers addressed to Naib-Zila Nazim, Gujranwala. His stand has not been rebutted by any cogent evidence. As stated earlier the resignation dated 7-8-2003 is of no consequence in view of proviso of section 158 referred above. The objection on this score is, untenable."

4. Learned counsel for the petitioner on the strength of section 158 and order, dated 5-9-2003 passed in aforesaid petition of Sajjad Ahmed Khan submits that petitioner has not been de-notified by the election Commission so far, he holds the office of Nazim as he was not required to resign before filing of the nomination paper in terms of proviso of section 158 of the Punjab Local Government Ordinance, 2001, as such election of respondent No.6 as officiating Nazim and his notification are illegal and without lawful authority.

5. I have heard learned counsel for the petitioner at length. Sent for the record of previous Writ Petition No.11482 of 2003 and- perused the relevant record of both the files. The case of the petitioner prior to ht's election for the Nazim of Tehsil Council was that he has resigned on 7-8-2003 from the Office of Nazim Union Council No.

153. Certified copy of his resignation and acceptance is on the record of the Writ Petition No. 11482 of 2003. He himself has addressed in Urdu to Zila Naib-Nazim, Gujranwala as under:-- This document bears' their signatures and seal of Naib-Zila Nazim, Gujranwala. Section 162 of the Ordinance provides that a member of the Council may resign from his office by writing under his hand addressed to Naib-Nazim of the concerned Council, whereupon, the resignation shall be deemed to be accepted and effective forthwith. The aforesaid A provision is unambiguous. Petitioner having resigned on 7-8-2003 ceased to be Nazim of Union Council

153. If the notification has not been issued by the concerned quarter in pursuance to his resignation, this fact itself cannot 'bring him back to his old office. Plea of the petitioner, that he submitted conditional resignation as per Annexure "A" on 7-8-2003 is an afterthought excuse coined after his defeat in the election of Nazim of Tehsil Council. It is not a certified copy of any official record whereas Annexure "B" is the original resignation which does not contain any condition. His resignation on day of submission in terms of section 162 has become effective forthwith, and he is no more Na2im of Union B Council. The seat has fallen vacant and members of the Council were entitled to elect any of their Councilor as officiating Nazim. The election of respondent No.6 in these circumstances is perfectly legal and in accordance with section 156(7) of the Ordinance. The observation made by this Court on 5-9-2003 in previous writ petition is of no help to him. He could contest the election without submission of resignation but once he has submitted resignation, it is deemed to have been accepted forthwith and as such, he ceased to, be the Nazim of Union Council with effect from 7-8-2003, 'Notification of respondent No.6 as officiating Nazim is lawful, and in accordance with the provisions contained in section. 156(7) of the Ordinance.

6. It is also pertinent to note that the petitioner is no more member of the Union Council No.153, therefore,' he is not an aggrieved person within the meaning of Article 199 of the Constitution to object to election of respondent No.6 as officiating Nazim. For the reasons stated above, this petition has no merit and is dismissed in limine. S.A.K./M--2374/L Petition dismissed.