ATHAR REHMAN vs MUHAMMAD LATIF TAHIR ETC

By means of this petition the election of respondent No. 1 as member of Town Committee, Chak Jhumra, Tehsil and District Faisalabad, has been impugned. The petitioner claims to be the voter in Ward No. 12 of Town Committee, Chak Jhumra. The action is based on the allegation that respondent No. 1 is a depot holder and is as such disqualified from being member of the Town Committee.

2. Notice was issued to the respondent who has filed a written statement and is represented by Mr. A. W. Butt, Advocate. It is not denied that the respondent is a depot-holder.

3. However, learned counsel for the respondent argued that a petition under section 29 of the Punjab Local Government Ordinance, 1979, filed by Muhammad Nawaz, the defeated candidate, was pending before the Commissioner, Sargodha Division, and that alternate remedy being available, the present proceedings would not come. In the first instance the remedy being sought is not by the petitioner but by another person, namely Muhammad Nawaz the defeated candidate.

Secondly the disqualification alleged against respondent No. 1 is one which was existing on the date the election took place and was not incurred after the election. In these circum--stances, the provisions of section 29 of the Ordinance afore referred would not be attracted. I have so held in the case of Riaz Hussain v. Fazal Muhammad (1980 CLC 839However, learned counsel for respondent No. 1 drew attention to the judgment in the case of Malik Ghulam Abbas (PLD 1980 Lah.718), to urge that the petition would be competent on the basis of pre-existing disqualifica-- petition under section 29 of the Ordinance. However, a careful reading of the judgment shows that in none of the petitions derided by the D. B. Was the disqualification one which existed on the date of election. In all these petitions the disqualification was imposed subsequently by amendments, in the second week of October, 1979, in the relevant laws. Therefore, the question as to whether section 29 did or did not apply to the pre-existing disqualification was not before the D. B. However, a careful reading of paragraph 13 of the judgment of Mr. Justice Zakiuddin P.I shows -that in view of his Lordship, the provisions of section 29 would be attracted if any member after his election incurs any of the disqualifications. The first contention has no force and is rejected.

4. It was secondly contended by learned counsel that as held by the Chairman of the Election Authority, Punjab, the depot-holders were not disqualified from being members of the local bodies.

It was consequently argued that the finding by the Chairman of the Election Authority being one with jurisdiction could not be declared to be without lawful authority and of no legal effect. That judgment of the Chairman of the Election Authority was impugned before this Court in the case of Muhammad Khan (1980 CLC 1wherein it was declared to be without lawful authority. Subsequently this view was upheld by the Supreme Court in the case of Umar Draz (PLD 1980 SC 173). The contention of learned counsel as such has no force and is repelled.

5. Learned counsel thirdly contended, that the respondent had been declared to be an elected member and that his name has been notified assuch, and that the notification was by itself a sufficient answer to the notice issued to him by this Court. I regret my inability to agree with this contention of learned counsel. In quo warranto proceedings the validity of the notification can be questioned and the mere fact that an elected person is in possession of a notification declaring him to be elected cannot divest this Court of its jurisdiction to determine the validity of the notification itself.

6. Learned counsel fourthly contended that the petitioner was not a voter in the ward from which the petitioner have been elected. Learned counsel for the petitioner controverted this assertion and stated that the petitioner was a voter of Ward No. 12 whereas the respondent was a voter of Ward No. 11. He further stated that these wards were amalgamated and constituted into Ward No. 7 and that the names of the petitioner and of the respondent were borne in the list of voters entitled to cast votes in Ward No. 7. Learned counsel for the respondent was unable to repel this contention.

Nevertheless the contention is without force for in proceedings in the nature of quo warranto any resident of the local area to which they public office relates is, in law, possessed of locus standi to approach this Court. It was so held in Riaz Hussain's case and Ahmad A.I's case (PLD 1962 Lah.

230Further as held by the Supreme Court in the case of M. U. A. Khan v. M. Sultan (1981 SCMR 74any person can invite the jurisdiction of superior Courts in proceedings in the nature of quo warranto, without such person having a personal interest in the matter. This contention of learned counsel is accordingly repelled.

7. Learned counsel fifthly contended, that the petition had not been filed in public interest and that the petitioner was merely a tool in the hands of Muhammad Nawaz the defeated candidate. This by itself would not be sufficient for the purpose of defeating proceedings in which it can be clearly established that the respondent is disqualified.

8. Learned counsel lastly contended that this petition was presented after almost seven months of the election being held and the petitioner was guilty of laches. Besides the fact that the delay complained of by learned counsel for the respondent is not a sufficient magnitude so as to render this petition incompetentin proceedings in the nature of quo warranto delay by itself has never been considered sufficient for the purposes of defeating a petition

9. As the respondent admits that he is a depot-holder, in view of the judgments in Riaz Hussain v.

Fazal Muhammad, Muhammad Khan v Muhammad Sarfraz and Umar Draz v. Nazar Muhammad (1980 SCMR 156it is declared that respondent No. 1 being a depot-holder stands disqualified by virtue of clause (f) of section 21 of Punjab Ordinance No. VI of 1979 read with Article 10(2) (b) (viii) of the President's Post Proclamation Order 5 of 1977, from being a member of the Municipal Committee, Chak Jhumra.

10. Learned counsel for the petitioner urged that the petitioner be declared elected. However, this prayer :s misconceived for the reasons giver by me in Muhammad Ashraf v. Muhammad Ajaib (PLD 1980 Lah. 311The votes cast it favour of respondent No. 1 cannot be treated as thrown away votes and consequently the election will have to be held afresh.

11. The petition is accepted in the above terms. In the circumstances, there will be no order as to costs.