1992 MLD 828 (PLP)

AMIRUL MULK MENGAL, J.‑The petitioner has challenged rejection of his nomination papers by Returning Officer and Appellate Authority passed respectively on 5th of December, 1991 and 11th of December, 1991.

2. Facts briefly stated are that the petitioner is a sitting member of the Quetta Cantonment Board. He has otherwise remained member of Quetta Cantonment Board for last 12 years. It is alleged that during this period he benefitted himself and his family members. Furthermore, his nomination papers were rejected by the Returning Officer at the time of scrutiny of the papers taking into consideration the following grounds:‑‑‑ (a) Mr. Muhammad Ilyas Khan son of Muhammad Ajab Khan benefitted himself and his entire family during his long tenure. (b) The whole family is occupying Cantonment Board residential accommodation on nominal rents, same is about the commercial property. (c) Mr. Muhammad Ilyas Khan son of Muhammad Ajab Khan has acquired substantial property. (d) His reputation is seriously questioned. Only with his help his family especially his elder brother could construct a 4 bedroom bungalow unauthorisedly to grab Cantt. Board Dairy farm permanently." The petitioner feeling aggrieved of his rejection orders preferred an appeal under Cantonment Elections and Election Petition Rules, 1979 (hereinafter referred to as the Rules) before the appellate authority who vide order, dated 11‑12‑1991 rejected the appeal and upheld the orders of the Returning Officer. Learned Appellate Authority was also impressed by the same grounds. Relevant observations made in the order are hereby reproduced:‑‑‑ "after examining the appeal with reference to the grounds of rejection of the Nomination Papers by the Returning Officer the record and hearing the appellant/his counsel, I am satisfied that there are sufficient grounds of rejection of the Nomination Papers, which are in disregard and violation of provisions of the Cantonments (Elections and Election Petitions) Rules, 1979 and Cantonments Act, 1924. He is ineligible for election. 1, therefore, uphold orders of the Returning Officer and dismiss the appeal."

3. We have heard learned counsel for petitioner, learned Standing Counsel for respondents Nos.1 and 2 and respondent No.3 in person.

4. Mr. Shakeel Ahmad vehemently urged that qualifications and disqualifications for being a Member of the Cantonment Board have been described in section 15‑B of the Cantonments Act, 1924 (hereinafter referred to as the `Act'). According to him mere allegations if not proved otherwise would not debar any candidate from contesting elections unless a candidate is found disqualified within the purview of section 15‑B(2) of the Act. To supplement his contention it was urged that even if the candidate has acquired substantial property or has given benefit to himself or his family members, the same would not form basis for his disqualification unless he is otherwise disqualified under section 15‑B of the Act. Learned counsel assailed the observations of the Returning Officer whereby he was pleased to reject the nomination papers of the petitioner after having found that his membership would be detrimental to the interest of Cantonment Board. It was canvassed that such reasons would not debar the candidate from contesting election of the Board as per provisions of section 15(B) read with Rule 12 of the Rules. In support of his contention the counsel relied on 1988 CLC 543 wherein it was held by a Division Bench of Sindh High Court as under:‑‑ "A person can only be disqualified under clause(e) provided he is under contract for work to be done or goods to be supplied to the Board to which he seeks election or has otherwise any pecuniary interest in its affairs. The Board means the Cantonment Board. From the record, it is clear that Respondent No.3, himself has not been allotted any plot or has any pecuniary interest. Due to the pecuniary interest of his son or any family members, no one can be deprived of contesting the election as he is not disqualified on this allegation." According to the learned counsel this authority applies on all fours to the facts of the present case, because allegations against the petitioner are that he is occupying a bungalow himself in the Cantonment Board Colony whereas his brothers and nephew are also occupying various properties including shops, Military Dairy Farm etc. The Bungalow allotted to the petitioner in fact is a rented one and there is no allegation that he has committed any default in payment of rent. As far as the benefits to his family members are concerned, in view of the ratio decidendi of the aforementioned cases he concluded that same shall not disqualify petitioner from contesting elections. He also referred to 1986 SCMR 392, PLD 1984 Karachi 76 and 1984 SCMR

537. According to the learned counsel any allegation regarding the integrity of petitioner may be a basis for his removal as a member by the Federal Government but the same, however, can not constitute a disqualification for his candidature in the forthcoming elections.

5. Learned Standing counsel vehemently opposed the contentions so raised. He also filed counter‑affidavit on behalf of official respondents. In the counter‑affidavit so filed we find that the same allegations have been repeated. However, learned Standing Counsel argued that the petitioner is disqualified within the meaning of section 15‑B(2)(e) of the Act. For the sake of convenience we intend to reproduce the same hereunder:‑‑‑ "15‑B. Qualifications and disqualifications of members: (1) A person who is not less than twenty‑one years of age on the first day of January preceding the election shall be qualified to be elected as a member of a Board if his name appears for the time being on the electoral roll of the ward from which he seeks election and he is not subject to any disqualification for being elected as and for being a member of a Board. (2) A person shall be disqualified for being elected, as and for being a member of a Board if he:‑‑‑ (a) has ceased to be a citizen of Pakistan or has voluntarily acquired the citizenship of a foreign state or has made a declaration of allegiance or adherence to a foreign state; (b) is an un-discharged insolvent; (c) has been ordered to execute a bond under section 110 of the Code of, Criminal Procedure, 1898 (Act V of 1898), or has on conviction for an offence involving moral turpitude, been sentenced to imprisonment for a term of not less than six months, unless five years or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf, have elapsed from the date of the expiration of the period of the bond or sentence, as the case may be; (d) is a whole‑time salaried official in the service of Government or of a public statutory corporation; a corporation under the control of Government, a Board or a local body or other local authority; (e) is under contract for work to be done or goods to be supplied to the Board to which he seeks election or has otherwise any pecuniary interest in its affairs. (f) .................................... (g) .................................... He thus argued that the words used in sub‑clause (e) "or has otherwise any pecuniary interest in its affairs" means nothing but any interest including benefit of residence, allotment of shops as well as plots etc. He, therefore, argued that sufficient material was brought on record to show that the petitioner has benefitted himself as well as his family members. Therefore the petitioner is disqualified within the purview of section 15‑B(2)(e). Learned Standing counsel also invited our attention to sections 32 and 33 of the Act read with Rule 12 and submitted that any sitting member who has violated any provision of the Act is equally disqualified.

6. The respondent No.3 submitted that the petitioner has not worked for the benefit of civilian community in his constituency but to the contrary he has utilised all his energies to support himself and his family as a member of the Cantonment Board. He, therefore, should not be allowed to contest elections.

7. We have given our conscious thought to the arguments so advanced. A person can be disqualified under any of the grounds as mentioned in section 15‑B of the Act. The only sub clause as envisaged in section 15‑B is clause (e) of subsection (2) which would be relevant for our discussion. We have already reproduced the same. This aspect has already been dealt with by the Sindh High Court in CLC 1988 page 543 and it was held that a candidate can only be disqualified under clause (3) provided he is under contract for work to be done or goods to be supplied to the Board to which he seeks election or has otherwise any pecuniary interest in its affairs. From the list supplied by official respondents it transpires that except a bungalow in the Cantt. Board Colony, which the petitioner is occupying on lease, he is not in occupation of any other property himself for the purpose of drawing pecuniary benefits. He is not liable for the pecuniary benefits of his family members. 8. "Pecuniary interest" has been defined by Stroud in its Judicial Dictionary as under:‑‑ "Pecuniary interest" (1) If a salary is attached to the office of mayor, that is a "pecuniary interest" within Municipal Corporations Act 1882 which prevents a member of the council from voting for himself. (2) A "pecuniary interest" whereby a member of a local authority is precluded from voting is to be construed irrespective of whether the vote would be to the pecuniary advantage or disadvantage of the person voting". Since the petitioner was not disqualified on any of the grounds mentioned in section 15‑B(2) by the Returning Officer hence the reasons/grounds of his rejection for nomination papers arc out of the purview of aforesaid section. We feel that a person can be disqualified on any or more grounds as mentioned in section 15‑B of the Act read with Rule 12 of the Rules. Rejection of papers of any candidate on any other allegation howsoever wild it might be cannot be sustained in law because it would be beyond the scope of statutory provisions. Learned Standing Counsel has failed to point out any clause of section 15(B) subsection (2) under which the petitioner could be disqualified. Facing difficulty to meet this situation the learned Standing Counsel attempted to argue that the petition is not competent in view of the bar created under Rule 65 of the Rules. We have perused Rule 65 which pertains to the filing of election petitions. Admittedly election petitions can be filed after conduct of elections and not at this stage. Learned counsel referred to PLD 1989 SC 396 and PLJ 1991 SC 279 and argued that even rejection of nomination papers can subsequently be challenged in an election petition. We are not impressed with the argument so advanced for the reason that firstly only a candidate can file an election petition and secondly that a candidate can raise objections to the acceptance of nomination papers in an election petition provided the candidate is proved as being disqualified under section 15‑B(2) of the Act. As such argument so advanced is devoid of any force. Since the nomination papers of the petitioner have been rejected on extraneous grounds not covered under section 15(B) read with Rule 12, therefore, we arc inclined to set aside order, dated 5‑12‑1991 passed by Returning Officer as well as order, dated 11‑12‑1991 passed by the appellate authority as having been passed without any lawful authority and are of no legal effect. Consequently we accept this petition and declare petitioner as validly nominated candidate for the forthcoming election of Cantonment Board, Quetta. The; Returning Officer shall enlist him as a validly nominated candidate and shall allot him symbol as per Rules. There shall, however, be no order as to costs.

9. The above are the reasons for our short order announced in open Court on 16‑12‑1991. A.A./403/0 Petition accepted.