Chairman of District Bait-ul-Mal and Disqualification to Contest Elections

Chairman of District Bait-ul-Mal and Disqualification to Contest Elections Bait-ul-Mal Case Laws Civil Law Constitutional Law Disqualification Election Interpretation of Statutes Knowledge - Civil Law Knowledge - Constitutional Law Local Government Non-Official Appointee Solutions - Civil Law Solutions - Constitutional Law Supreme Court Mr. Justice Dost Muhammad Khan in his judgment has decided the issue regarding chairman of district Bait-ul-Mal and disqualification to contest elections in Civil Petition No. 3228 of 2015.

1. This common judgment shall also decide CPLA No.3229/15 titled Shakeel Sardar Awan v. Election Appellate Authority, Tehsil Gujranwala (City) & others. Both the petitions have been filed against two different judgments, rendered by the Lahore High Court, Lahore in W. Ps. No. 30806 and 30807 of 2015, albeit both the impugned judgments operate on similar and same legal and factual premises.

2. Arguments of the learned ASCs for the parties and Mr. Razzaq A. Mirza, learned Additional Advocate General, Punjab heard in considerable length and case file perused.

3. Learned counsel for the petitioners in both the petitions has laid considerable stress on two-fold legal points, seeking disqualification of the respondents for contesting elections on the seats of Chairman and Vice Chairman of Union Council, consisting of Wards No.9 to 16.

(i) The first limb of his arguments was that, respondents No.3 and 4 had submitted five number of nomination papers, joining with them altogether different contestants, therefore, the same are hit by the mischief clause (6) of rule 12 of the Punjab Local Governments (Conduct of Elections) Rules 2013 {hereinafter referred to as, the Rules, 2013} and because one of the contestants had concealed that he was holding the status of being a Chairman, District Bait-ul-Mal, Gujranwala, which was essentially required to have been disclosed in the nomination papers, therefore, he stands disqualified.

(ii) The second part of his plea was that, being a Chairman of District Bait-ul-Mal, the contesting respondent stands disqualified in view of the law declared by this Court in the case of Mirza Muhammad Tufail v. District Returning Officer (PLD 2007 SC 16).

4. On the last plea, the learned ASC vehemently urged hat in view of interpretation, made by this Court, of section 152(1)(g) of the Punjab Local Government Ordinance (XIII of 2001) {hereinafter referred to as, the Ordinance, 2001} the said respondent is holding a post, which attracts disqualification.

5. Mr. Muhammad Munir Peracha, learned ASC for the respondents and the learned Additional Advocate General, Punjab supported the impugned judgment in both the cases, rendered by the Lahore High Court, Lahore dated 15.10.2015, however, Mr. Muhammad Munir Peracha, learned ASC added that there is a wider difference between the powers of the Returning Officer and the Administrative Appellate Authority vis-à-vis the Tribunals, to be constituted and established by the Election Commission of Pakistan for the purpose of trial of the petitions, seeking disqualification of Returned Candidates on the grounds enumerated by the relevant provisions of law. He explained that the scheme of the law and the rules plainly understandable, are that the Returning Officer or for that matter Administrative Appellate Authority are vested with powers to see the eligibility and disqualification of the petitioners, which are specifically provided in sub-rule (3) of rule 14 of the Rules, 2013. To understand the true intent of rule making authority, the above sub-rule is reproduced below:

“14. Scrutiny: (3) The Returning Officer may, either on his own accord or on any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that:

(a) the candidate is not qualified to be elected as a member, Chairman and Vice Chairman, or Mayor and Deputy Mayor;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of rule 12 or rule 13 has not been complied with; or
(d) the signature or thumb impression of the proposer or the seconder is not genuine.”

The plea of the learned ASC is that, at pre-elections stage, the Returning Officer or the Appellate Authority have no power to travel beyond the mandate, given to them by the law and they can only look at the qualifications of the candidate and not his disqualifications because the latter pertain to post-elections stage where the Tribunal to be constituted holds a full-dress trial/inquiry.

6. So far as the second limb of the objection is concerned, it has not impressed us in any manner. Our reasons are as follows:

(i) Firstly, that the ibid judgment was rendered by this Court while interpreting erstwhile provision of section 152(1)(g) of the Ordinance, 2001, which has been repealed along with other provisions of the Ordinance by way of repealing provision of section 154 of the Punjab Local government Act, 2013 and the same has been replaced by the provision of sub-section (2) of section 27 of the ibid Act. Clause (e) of the same provides as follows:

“27. Qualifications and disqualifications for candidates and elected members: (2) A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he-
(e) is in the service of any statutory body or a body which is owned or controlled by the Government or a Provincial Government or the Federal Government or a local government or, in which any of such Government or local government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement.”

(ii) This provision contains exception clause, which excludes from disqualifications those candidates, holding the elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement.

(iii) The exception clause undoubtedly covers the case of the contesting respondents, however, under the relevant provisions of law i.e. Pakistan Bait-ul-Mal Act, 1992 the disqualification is not attracted to him because at the Provincial level, overall controlling authority is the Provincial Bait-ul-Mal Board, which has to be constituted by the Federal Board through notification in the official gazette however, after the 18th Amendment in the Constitution, these powers are now exercisable by the Provincial Governments.

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