SAKHEERO KHAN Versus DEPUTY COMMISSIONER, KHAIRPUR
1. NASIR ASLAM ZAHID, J.‑‑ Petitioner was a candidate for Unit No. 7 Union Council, Baberloi, Taluka and District Khairpur for the Local Bodies Elections held on 30‑11‑1987 but, by mistake, the petitioner had given in his nomination papers, the number of the constituency as Unit No. 8. The Mukhtiarkar, Khairpur/Returning Officer rejected the nomination papers on account of this mistake and the appeal filed by the petitioner was also rejected by the Appellate Authority/ Deputy Commissioner, Khairpur, by order, dated 17‑11‑1987. In respect of the same constituency i.e. Unit No.7, respondent No.2 Mohammad Chhuttal, was also a candidate and he had also made a similar mistake. His nomination papers were also rejected by the Mukhtiarkar but his appeal filed before the same Appellate Authority i.e. Mr. Zafar Saleem, Deputy Commissioner, Khairpur, was allowed on the same date i.e. 17‑11‑1987 when the identical appeal by the petitioner was dismissed by Mr. Zafar Saleem. We consider it proper to reproduce here the last two paragraphs of the order, dated 17‑11‑1987 of Mr. Zafar Saleem, Deputy Commissioner/ Appellate Authority, Khairpur in Appeal No. 61 of 1987 filed by respondent No. 2, Mohammad Chhuttal:‑
2. "The Unit No. 8 as shown by the appellant in the nomination form seems to have been indicated through mistake. The names of candidate, proposer, and seconder appear in Unit No.7.This mistake is remediable, hence allowed to be corrected.
3. The appeal is upheld and nomination form for‑ Unit No.7 is accepted."
4. As against the above order, dated 17‑11‑1987 passed in Appeal No. 61 of 1987 filed by respondent No.2, Mohammad Chhuttal, the appellate authority on the same date i.e. 17‑11‑1987 rejected the Appeal No. 70 of 1987 filed by the petitioner in respect of the same constituency, as observed earlier, and the last two paragraphs of the order, dated 17‑11‑1987 of Mr. Zafar Saleem, Deputy Commis sioner/Appellate Authority, Khairpur in the appeal filed by the petitioner are reproduced here:‑
5. "The counsel for the appellant argued that appellant being an uneducated /illiterate person requested somebody for filling in the nomination for Unit No.7 of Union Council, Baberloi duly proposed and seconded by the voters of Unit No.7, but due to oversight, clerical mistake, number of Unit was mentioned as 8 instead of 7, which was purely a clerical mistake.
6. I have perused the electoral roll of Unit No.8 which reveals that name of proposer does not exist in Ward No. 8 Union Council, Baberloi.
7. The appeal is rejected."
8. We have not been able to understand the wisdom of the Deputy Commissioner/ Appellate Authority in passing two patently contradictory orders on the same date in respect of the same constituency where identical mistake had been made by two candidates. As observed A earlier, the orders in the two appeals were passed on the same date i.e. 17‑11‑1987; the appeals related to the same constituency; same mistake was made by the appellant as well as respondent No.2 but the appeal of respondent No.2 was allowed and the appeal of the petitioner was rejected.
9. First of all the Appellate Authority should not have applied double standards. Either he should have rejected both the appeals or allowed both the appeals. Secondly, we are of the view that the decision taken by the Appellate Authority in the appeal of Mohammad Chhuttai, respondnent No.2 was correct and similar order should have been passed by the Appellate Authority in the case of the petitioner.
10. In this connection, learned A.A.‑G. has also pointed out Rule 19(3)(d)(ii) of the Election Rules which is to the effect that the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of substantial nature and may allow any defect to be remedied forthwith. In our view, the appeal filed by the petitioner should have been allowed by the Appellate Authority.
11. We had admitted this petition to regular hearing by order, dated 24‑11‑1987 and, by order, dated 26‑11‑1987, interim relief was granted to the petitioner to take part in the elections. All concerned inform that in the elections for the aforesaid constituency, the petitioner has won the election by polling more votes than respondent No.2. Respondent No.2 is present in person and states that he has lost the elections and he does not oppose this petition. He further states that he is satisfied with the result of the elections.
12. Learned A.A.‑G. for the official respondents also does not oppose this petition in view of the provisions contained in the applicable rules and also for the reason that contradictory orders were passed by the Appellate Authority.
13. As a result, Constitutional Petition No. D‑317 of 1987 is allowed and the order, dated 17‑11‑1987 passed by the Appellate Authority/ Deputy Commissioner, Khairpur and the order, dated 13‑11‑1987 of D the Mukhtiarkar, Khairpur/Returning Officer rejecting the nomination papers of the petitioner are declared to have been passed without lawful authority and the same are no legal effect and that the nomination form of the petitioner in respect of Unit No.7 are deemed to have been accepted.
14. There will be no order as to costs.
15. M . Y . H . / S‑166/ K Petition allowed