Remedy of Election Petition and Maintainability of Constitutional Petition

Remedy of Election Petition and Maintainability of Constitutional Petition Case Laws Constitutional Law Election Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Solutions - Constitutional Law Mr. Justice Abid Aziz Sheikh in his judgment has decided the issue regarding available remedy of election petition and maintainability of constitutional petition in Writ Petition No. 22205 of 2013.

1. This constitutional petition has been filed with the following prayer:

“It is, therefore, most respectfully prayed that this petition be allowed, the entire process in PP 266 Layya-V including the polls held on 11.5.2013 may kindly be declared as illegal, incompetent void and of no legal effect.

It is further prayed that the respondent No.2 may very kindly be directed to hold fresh election in PP 266 Layya-V after completion of due process of law”.

2. Brief facts are that petitioner filed his nomination papers on the ticket of PML(N) to contest Punjab Provincial Assembly election from PP-266-Layya-V, scheduled to be held in year 2013. His nomination papers were rejected by Returning Officer, which order was also upheld by the Election Tribunal. The petitioner being aggrieved filed Writ Petition No.9349/2013, which was allowed by the learned Full Bench of this Court on 23.04.2013. However, in CPLA No.636/2013, august Supreme Court granted leave on 09.05.2013 and as an interim relief petitioner was restrained from contesting election. On 11.05.2013 election was held and respondent No.5 was declared successful candidate by securing maximum number of votes. The Civil Appeal No.497/2013 arising out of CPLA No.636/2013 was disposed of on 08.07.2013 having become infructuous, however, it was observed that in future, if any, cause of action accrues to any of the party, they can agitate the same before the competent forum. The petitioner thereafter filed this constitutional petition with afore-noted prayer.

3. Learned counsel for respondent No.5, at the very outset raised preliminary legal objection to the maintainability of this petition. He submits that as the petitioner was a candidate for election in PP-266 Layya-V and also filed his nomination papers to contest said election, therefore, the exclusive remedy available to the petitioner to challenge the election process is through Election Petition under section 52 of the Representation of People Act, 1976 (“ROPA”), and this constitutional petition is barred under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973. (“Constitution”). He placed reliance on Election Commission of Pakistan through its Secretary vs. Javaid Hashmi and others (PLD 1989 SC 396), Ayatullah Dr. Imran Liaqat Hussain vs. Election Commission of Pakistan and another (PLD 2005 SC 52) and Abdul Ghafoor vs. Shah Muhammad and 4. others (1987 MLD 54).

4. In response to above, preliminary legal objection, the learned counsel for the petitioner submits that because petitioner was not allowed to contest election due to interim relief/order passed by the august Supreme Court, therefore, the petitioner was not a candidate for the purpose of filing Election Petition under Section 52 of ROPA. He submits that words “candidate for that election” mentioned in section 52 of ROPA, means contesting and validly nominated candidate as defined in Section 2(viii) and 2(xxvi) of ROPA. He submits that because petitioner was restrained through interim order to contest election, therefore, he was not validly nominated contesting candidate to file Election Petition. Adds that as the remedy of Election Petition under section 52 of ROPA was not available to the petitioner, therefore, the bar of Article 225 of the constitution, being not absolute, is not applicable to the petitioner and this constitutional petition being the only available remedy is maintainable. He placed reliance on the law laid down by august Supreme Court of Pakistan in I.A. Sherwani and others vs. Govt. of Punjab through Secretary Finance Div. Islamabad and others (1991 SCMR 1041), Ghulam Mustafa Jatoi vs. Additional District and Sessions Judge/ R.O. (1994 SCMR 1299) and Hafiz Hamdullah vs. Saif Ullah Khan and others (PLD 2007 SC 52).

5. Before touching merits of the case, I would like to dilate upon the question of maintainability of this petition. The learned counsel for the parties have been heard and relevant record perused with their able assistance on this preliminary objection. To better understand the controversy and resolve the moot question, it is convenient to briefly reiterate the facts which are simple and not disputed. Admittedly, petitioner filed his nomination papers to contest election for PP 266 Layya-V. His nomination papers were rejected by the Returning Officer on 06.04.2013 and his appeal was also dismissed by the Election Tribunal on 10.11.2013. Petitioner’s W.P. No. 9349/2013 was allowed by the learned Full Bench of this Court on 23.04.2013 and the name of the petitioner was included in the list of validly nominated candidates. In CPLA before the august Supreme Court, the Leave was granted on 09.05.2013 and as an interim relief petitioner was restrained to contest the election. The election was held, where respondent No.5, secured maximum number of votes and declared as returned candidate. The appeal was disposed of by august Supreme Court on 08.07.2013 as having become infructuous. Thereafter petitioner filed this constitutional petition challenging the entire process of PP 266 Layya election being illegal and seeking direction for fresh election in said constituency.

6. Though the petitioner’s counsel has not denied that under Article 225 of the Constitution, the election to Provincial Assembly has to be challenged under ROPA before the Election Tribunal, however, the main thrust of his argument is that because petitioner was not a candidate for the election of PP-226-Layya-V, therefore, he has no remedy under ROPA and only remedy available to petitioner is through this constitutional petition.

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