IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Constt: Petition No  3592, 3627, 3651, 3654, 3713, 3764, 3765, 3778,

3826, 3874, 3905, 3909, 3947, 4017 &4018  of 2015

 

DATE                                     ORDER WITH SIGNAURE OF HON’BLE JUDGE

FOR KATCHA PESHI

 

Mr. Nisar Ahmed Bhanbhro, Advocate for petitioners in

C.P.No.D- 3592 & 3713 of 2015

 

            Mr. Achar Khan Gabole, Advocate for petitioners in

C.P.No.D- 3764 & 3765 of 2015.

 

Mr. J.K Jarwar, Advocate for petitioner in

C.P.No.D-3826 of 2015.

 

Mr. Syed Zafar Ali Shah, Advocate for petitioner in

C.P.No.D- 3874 of 2015.

 

            Mr. Muhammad Arif Malik, Advocate for petitioners in

C.P.No.D- 3905  of 2015.

 

            Mr.Shabbir Ali Bozdar, Advocate for petitioners in

            C.P.No.D- 3909, 3947 of 2015

 

            Mr. ShahzadoDreho, Advocate for petitioners in

            C.P.No.D- 4017 & 4018 of 2015.

 

            M/s Sundar Khan Chachar& Ali RazaBaloch,

            Advocates for Applicants/petitioners in

C.P.No.D- 3627 & 3654 of 2015.

 

Petitioners present in person in C.P.No.D-3651 & 3778 of 2015.

 

M/s Qurban Ali Malano, Mehfooz Ahmed Awan and                            Pervez Ali Ghumro, Advocates for Respondents                                          in all the aforesaid petitions.

            Mr. Liaquat Ali Shar, Addl: A.G,

M/s Noor Hassan Malik &Zulfiqar Ali Sangi, Asstt: A.G

along with Returning Officers.      

 

Mr.MianMumtazRabbani, D.A.G along with

Representative of  Election Commission.

 

Date of order27th& 28th. October, 2015.

 

Present:

 

                                                                        Mr. Justice Aqeel Ahmed Abbasi.

                                                                        Mr. Justice Syed SaeeduddinNasir.

 

ORDER

AQEEL AHMED ABBASI, J:-       The above petitions are being disposed of through this common order by consent of the learned Counsel for the parties as these petitions involved similar controversy regarding the effect of rejection of nomination paper of a candidate  whose proposer or seconder are not of the same electoral unit (constituency).

2.                     Brief facts, which are common in the above petitions are that petitioners are candidates who filed their nomination papers for contesting local bodies elections for the post of Member, Chairman, Vice Chairman and General Councilor for their respective electoral units (constituency) i.e. wards/union Council/Municipal Committee/Town Committee and District Council in the forthcoming local bodies elections scheduled to be held on 31st October, 2015 for Sukkur Division, and on 19th November, 2015 for District NaushahroFeroze, whose nomination papers have been rejected by the Returning Officers in view of objections filed on their nominations on the grounds that either proposer or seconder of the contesting candidates are not the registered voters of the same electoral unit (constituency). Appeals were filed against such rejection of nominations by Returning Officer before the Appellate Authority provided under Law, however, the orders passed by the Returning Officers on the aforesaid petitions have been maintained and the petitioners being aggrieved by such orders have filed instant petitions with the prayer to set-aside the orders passed by the authorities below and to allow the petitioner(s) to contest the forthcoming local bodies elections. The arguments of the learned Counsel for the petitioner(s) in the above petitions can be summarized hereunder to avoid repetition

3.         It has been argued by learned Counsel for the petitioners that in view of same confusion prevailing on account of delimitation of constituencies and finalization of list of different electoral units, the contesting candidates due to inadvertence, filed their nomination forms through proposers and seconders belonging to different electoral units, resulting into cancellation of their nomination forms by the Returning Officers. It has been further argued that such defect is not substantial in nature and could have been cured by the Returning Officers or the authority in terms of 2nd proviso to sub-rule (3) of Rule 18 of Sindh Local Council (Election) Rules. According to learned Counsel for petitioners, such defect could not be cured before the authorities below as the petitioners were not aware of above legal position, therefore, it may be allowed to be cured by this Court by setting-aside the impugned orders with the directions to the Returning Officers to allow petitioners to remove such defect by bringing another proposer or seconder, as the case may be, of the same electoral unit, whereafter the nomination forms of the petitioner(s) may be treated as valid nomination forms. Learned Counsel further argued that under similar circumstances, Division Benches of this Court at Principal Seat as well as at Circuit Courts, Larkana and Hyderabad have allowed the petitions by holding that above defeat is not substantial and can be cured by the directing the Returning Officers, who have been directed to allow the petitioner(s) to replace proposer or seconder of the same electoral unit from which the petitioners are contesting elections. Learned Counsel have placed copy of order passed in C.P.No.D-6336/2015 and C.P.No.D-1127 of 2015, whereby according to learned Counsel for the petitioners such relief has been extended to the petitioners. It has been prayed that the impugned orders(s) whereby the nomination forms of the petitioner(s) have been rejected on the aforesaid grounds may be set-aside and concerned Returning Officers may be directed to allow the petitioner(s) to replace proposer or seconder and thereafter, the nomination forms of the petitioner(s) may be accepted.

 

4.         Conversely, learned Counsel representing the private respondents i.e contesting candidates of subject electoral unit (constituency) Wards / Union Councils  of Municipal Corporation or District Council etc. have vehemently opposed the above contention of learned Counsel for the petitioners and have also raised objection as to the maintainability of instant petitions on the ground that the impugned orders passed by the authorities below do not suffer from any error or illegality, whereas, relevant legal provisions and the rules relating to election laws have been properly invoked by the Returning Officer(s) and the appellate authority, while cancelling  the nomination papers of petitioners, as the same were not filed in accordance with Sindh Local Government Act, 2013 r/w Sindh Local Council (Election) Rules, 2015. It has been contended by the learned Counsel for respondents that petitioners admittedly did not file their nomination forms in terms of rule 16 of Sindh Local Council (Election) Rules, 2015, as admittedly, the proposer or seconder in the above petitions do not belong to the same electoral unit, whereas, any violation in this regard is substantial in nature and cannot be ignored or condoned at this stage when form VII and VIII in respect of validly nominated and contesting candidates have already been published, and the elections are to be held on 31st October, 2015 in respect of Sukkur Division, and on 19.11.2015 in respect of District NaushahroFeroze. It has been further contended by the learned Counsel for the respondents that no confusion whatsoever as alleged by petitioners, has been created on account of alleged delimitation by the Election Commission in respect of electoral units (constituency) of petitioner(s), whereas, final voter list was also published as per law well within specified time period, whereafter, the election schedule was announced and all the candidates desirous of participating in the local bodies elections including respondents, filed their nomination papers on the basis of such final electoral list, including the respondents, who complied with all codal formalities, therefore, their nomination forms were accepted as there was no defect or deficiency regarding proposer or seconder of different electoral units. It has been argued by learned Counsels for respondents that it is the duty of each candidate to file complete and correct nomination form along with requisite documents after complying with all codal formalities, in accordance with election laws/rules and as per schedule announced by Election Commission for such purpose, within the prescribed time limit, so that the election process shall be completed in a transparent manner as per election schedule in accordance with law and rules. Learned Counsel for respondents further submit that none of the petitioner(s) raised such plea either at the time of scrutiny of nomination papers or even before appellate authority and have for the first time raised such plea before this Court with the prayer, to allow the petitioner(s) to replace their proposer or seconder,  when the entire process of filing of nomination papers, their scrutiny by the Returning Officers, hearing of the appeals by the Appellate Authorities, have been completed, Form VII and VIII have already been issued by the Returning Officers, and sent to the Election Commission, and the ballot papers are under publication/printing. Per learned Counsel for respondents, even such plea could not have been taken into consideration by the authorities below as above defect is substantial in nature, which cannot be allowed to be cured at subsequent stage. In support of their contentions, learned Counsel for the respondents have placed reliance on the full bench decision of the Lahore High Court in case of MudassarQayyumNahra v. Election Tribunal Punjab, Lahore reported  as 2003 M L D 1089 as well as Judgment of Hon’ble Supreme Court  in case Raja Muhammad TajammalHussain v. RanaShaukatMehmood reported as P L D 2007 Supreme Court 277, wherein according to learned Counsel for the respondents, it has been categorically held that the proposer and seconder in respect of a contesting candidate has to be of the same electoral unit (constituency) from which a candidate is contesting elections, whereas, any defect or deficiency in this regard is of substantial in nature, which cannot be validated at subsequent stage.  Learned Counsel for the respondents further submitted that subject issue has already been decided by this bench in the cases of Sultan Khan Vs. Federation of Pakistan in C.P.No.D- 3627 of 2015 vide order dated 15.10.2015 and Abdul QadeerArain Vs. Federation of Pakistan and others in C.P.No.D- 3616 of 2015 vide order dated 08.10.2015, wherein, it has been held that if proposer or seconder of a candidate is of different electoral unit (constituency) the nomination form cannot be considered as a valid nomination form, whereas, it has been further held that such defect cannot be considered as a minor defect or deficiency, hence it cannot be validated at subsequent stage by invoking the provisions of Rule 18 sub-rule 3 of Sindh Local Council (Election) Rules, 2015. It has been prayed that instant petitions are misconceived on facts and law which are liable to be dismissed with costs.

5.         Learned Asstt: A.G and D.A.G have also supported the contention of learned Counsel for the respondents and submitted that petitioners did not raise such plea before Returning Officers or Appellate Authority, provided under law, and for the first time have raised such plea before this Court at a belated stage which otherwise is contrary to law and the judgments of the Hon’ble Supreme Court, and full Bench decision of Lahore High Court as referred hereinabove.  It has been further contended that this bench has already decided the subject controversy in the aforesaid cases, which are earlier in time, whereas, the orders of other benches, being subsequent in time, do not have any binding effect, particularly, when legal issue has already been decided by the Hon’ble Supreme Court in the above cited judgment. It has been prayed that the above petitions may be dismissed and the order(s) of rejection of nomination papers shall be maintained.

6.         We have heard the learned Counsel for the parties, perused the record and the orders of both the authorities below, and also examined the relevant provisions of Sindh Local Government Act, 2013 i.eSection 12 & 14, Sindh Local Council (Election) Rules, 2015 i.e rule 16 & 18, as well as the relevant provisions of Representation of the People Act, 1976 i.eSection 12 & 14, and the case law relied upon by the learned Counsels for the parties. It will be advantageous to reproduce hereunder the relevant provisions of Rule 16 & 18 of Sindh Local Council (Election) Rules 2015, which provisions are similar to provisions of Section 12 and 14 of Representation of the People Act, 1976, which provide for the complete mechanism of filing nomination paper and its scrutiny by Returning Officer:-

16. (1)The Returning Officer shall, as soon as may be after the publication of the election programme under sub-rule (2) of rule 12, give a public notice in Form-I inviting nominations and specifying the time before which and the place at which, the nomination papers shall be received by the Returning Officer.

(2)       Any elector of an electoral unit may propose or second the name of any duly qualified person to be a member for that unit.

(3)       Every proposal shall be made by a separate nomination paper in Form-II (English or Urdu or Sindhi), Form-III, Form III(A) and Form-III(B), which shall be signed by the proposer and the seconder and shall contain-

 

·                    a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member; and

 

·                    a declaration signed by the proposer and the seconder that neither of them has subscribed to any other nomination paper either as proposer or seconder.

 

 

(4)     Every nomination paper shall be delivered by the Candidate or his proposer or his seconder to the Returning Officer who shall acknowledge the receipt of the nomination paper specifying the date and time of receipt.

(5)    A person may be nominated in the same electoral unit by not more than five nomination papers.

(6)   If any person subscribes to more than one nomination paper, all such nomination papers, except the one received first by the Returning Officer, shall be void.

(7)       The Returning Officer shall assign a serial number to every nomination paper and endorse thereon the name of the person presenting it, and the date and time of its receipt, and inform such person of the time and place at which he shall hold scrutiny.

(8)       The Returning Officer shall cause to be affixed at some conspicuous place in office a notice in Form-VI of every nomination paper received by him containing the particulars of each candidate and the names of proposer and seconder as shown in the nomination paper for general information and inviting objections from the voters of the local area within such time as may be specified in the Election Programme.

(9)       The representation, if any, received under sub-rule (8) shall be taken into consideration at the time of scrutiny of nomination papers.                     

18. (1) The candidates, their election agents, proposers and seconders, and one other person authorized in this behalf by each candidate and the person who made a representation against the nomination paper may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under rule 16.

(2) The Returning Officer shall in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide any objection raised by any such person to any nomination.

(3) The Returning Officer, may either on his own motion or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that-

 

·                    the candidate is not qualified to be elected as a member;

 

·                    the proposer or the seconder is not qualified to subscribe to the nomination paper;

 

·                    any provision of rule 16 or 17 has not been complied with; or

 

·                    the signature of the proposer or the seconder is not genuine;

 

Provided that-

 

·                    the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;

 

·                    the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith;

 

·                    the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll.

 

(4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it, and shall, in the case of rejection, record reasons therefor.

(5) An appeal against the decision under sub rule (4) shall lie to Appellate Authority appointed by the Election Commission and shall be filed and disposed of by the date specified in the election programme.

(6) An appeal shall be disposed of either summarily or after summary enquiry as the Appellate Authority may consider necessary.

(7) The orders passed under sub-rule (5) shall be final.

           

7.         From perusal of above provisions it is clear that the same are similar to provisions of Section 12 and 14 of the Representation of the People Act, 1976, whereas, said provisions have already been interpreted by a full bench of Lahore High Court in case of MudassarQayyumNahrav. Election Tribunal Punjab,  Lahore, 2003 M L D 1089, wherein, the learned judges of the full bench were pleased to hold as under:-

“8. Section 12(1) of the Representation of the People Act, 1976, provides that any elector of a constituency may propose or second the name of any duly qualified person to be a member of that constituency. Similarly, para.39 of the Manual of Instructions for the Guidance of the Returning Officers, issued by the Election Commission of Pakistan, provides that it is necessary that the person proposing or seconding the constituency must belong to that constituency and should be registered as elector in the electoral roll of any one of the electoral areas comprised in the constituency. Furthermore, law has taken into consideration the commission of such a mistake. Section 14(4) of the above said Act provides that a person may be nominated in the same constituency by five nomination papers. Similarly, para. 40 of the above said Manual of Instructions provides that a candidate may file five nomination papers from a constituency. Section 14(3)(b) of the Representation of the People Act, 1976, provides that the Returning Officer may reject the nomination papers if he is satisfied that the proposer or the seconder is not qualified to subscribe to the nomination paper. Similarly, section 14(3)(c) provides for the rejection of the nomination papers, if any provision of section 12 or section 13 has not been complied with.

 

9. The above mentioned shows that a person not belonging to the concerned constituency cannot be a proposer or a seconder and the nomination papers of a candidate are liable to be rejected if the proposers or the seconder are not qualified to subscribe to the nomination papers. Second proviso to section 14(3)(d) of the Representation of the People Act, 1976, provides that the Returning Officer can allow the removal of only those defects which are not of substantial nature. The unqualified proposer or the seconder leads to the rejection of nomination papers as provided in section 14(3)(b) and, therefore, such a defect cannot be held to be not of substantial nature because such a defect can be removed only by the substitution of a nomination paper and the law does not provide for the substitution of the proposers or the seconders and the safety valve has been provided to the candidates by permitting them by filing up to five nomination papers…………...

 

8.         The above controversy has also been put to at rest by the Hon’ble Supreme Court of Pakistan in the case of Rana Muhammad TajammalHussainv. RanaShaukatMehmood reported as P L D 2007 Supreme Court 277, wherein the Hon’ble  Chief Justice of Pakistan i.e Justice Iftikhar Muhammad Chaudhry (as his lordship then was), while speaking for the bench, has decided the controversy in the following terms:-

“9. It has been pointed out hereinabove that the object of section 12(1) of the Act, 1976 is that elector of the constituency may propose or second the name of any duly qualified person as a candidate for election as a member for that constituency, clearly spells out the intention of the legislature. Therefore, keeping in view that intention of the legislature the word ‘may’ used in section 12(1) has to be read as ‘shall’ and on having held that the word ‘may’ can be interchanged with the word ‘shall’ to enhance the intention of the legislature, the candidate is bound and under mandatory obligation to ensure filing of nomination papers from the constituency duly proposed and seconded by the electors therefrom……”

 

10. Thus it is held that the plea of the learned counsel for appellant that permission be accorded to him to substitute the names of the proposer and seconder, at this stage, seems to be not acceptable. Therefore, opinion expressed in the case of Ishaq Dar v. Election Tribunal (KLR 1998 Civil Cases 374) is not approved for the reasons mentioned herein above because of the fact that this provision of law is mandatory in its nature and would have substantial effect on the election  for which schedule is to be announced and any nomination paper found invalid cannot be allowed to be validated afterwards, even in exercise of powers either by the Returning Officer or the Election Tribunal or for that matter High Court or this Court, in terms of section 14(1) (2) of the Act, 1976. A perusal of this provision also indicates that the powers of Returning Officer have been controlled for not rejecting the nomination papers on any defect which is not of substantial nature, whereas defect in any submitted nomination papers, duly proposed and seconded by a candidate, is of a substantial nature and provisions of sections 12 and 14 of the Act, 1976 are mandatory in nature……..”

 

9.         Moreover, this bench has also decided the above controversy in C.P.No.D- 3627 of 2015, in the case of Sultan Khan v. Federation of Pakistan and others,  in the above terms, and in order to avoid repetition, it will be advantageous to reproduce the relevant portion of the order of this bench, which reads as under”-

“We have heard learned Counsel for the parties and perused the record. Admittedly, the proposer and seconder in the instant case in respect of the petitioner do not belong to Ward-6 for which petitioner is contesting the elections, whereas, the definition as given in Rule-2 of Sub-Rule (12) of Sindh Local Council (Election) Rules, 2015 talks about the electoral Units which in the instant case, admittedly is Ward-6, whereas, proposer and seconder of the petitioner are registered in Ward-7. We may observe the contentions of learned Counsel for the petitioner, wherein it has been stated that it was the duty of the Returning Officer to point out such defect at the time of scrutiny is misconceived, as it is the prime responsibility of each candidates contesting Election for a particular post to fill the nomination paper properly which shall be correct and complete in all respects, and shall be inconformity with relevant law and rules. The responsibility of the Returning Officer in terms of second proviso of Sub-Rule (3) of Rule-18, is limited only to the extent that if there is some minor defect or deficiency in the nomination form, then he may allow the candidate(s) to remove or cure such defect, however, any substantial defect or deficiency in nomination forms cannot be ignored or condoned by the Returning Officer at a subsequent stage, as it would deprive the contesting candidates of their substantial right who otherwise would have filed the proper nomination forms after complying with law and relevant rules within stipulated period. Moreover, we have already decided this issue relating to proposer and seconder and have already dismissed the petition No.D-3616 of 2015 in the case of Abdul Qadeer v. Federation of Pakistan & others, which facts have not been controverted by the learned Counsel for the parties. Accordingly, we do not find any substance in the instant petition, which is dismissed along with listed applications.”

 

10.       In view of hereinabove facts and circumstances of above petitions, and from perusal of the relevant law, rules, as well as the Judgment of Hon’ble Supreme Court, Full bench of Lahore High Court and the two orders already passed by this bench at Sukkur, in above referred cases, we are of the considered opinion that the provisions relating to proposer and seconder of a candidate are mandatory in nature, therefore, the proposer and seconder of a candidate has to be of the same electoral unit (constituency) from which a candidate has filed his nomination paper and contesting elections, whereas, in case of any defect in the nomination paper in this account, the said defect is of substantial nature, which cannot be cured at subsequent stage, and the nomination papers found invalid on this account, cannot be allowed to be validated  afterwards in exercise of powers either by the Returning Officer or Election Tribunal and for that matter, by High Court or Supreme Court. In view of herein above facts and circumstances of this case, and by respectfully following the ratio of judgment of Hon’bleSupreme Court and full bench of Lahore High Court; and also the decisions of this Bench as referred to hereinabove, the above petitions were dismissed vide  our short orders dated 27th& 28th October, 2015, whereas, the review applications filed in C.P.No.D- 3627 and 3654 of 2015, were also dismissed vide our short order dated  27.10.2015, and above are the reasons for such short orders dated 27 & 28th. October, 2015.

JUDGE

JUDGE

A.R.BROHI