SANAULLAH KHAN GANDAPUR vs ADVOCATEGENERAL, N.W.F.P. and others
This petition for leave to appeal arose from a High Court judgment dismissing the petitioner's constitutional petition, which had challenged the acceptance of the nomination papers of respondents Nos. 3, 4, and 5 for the election of a Member of the Provincial Bar Council. The petitioner contended that the respondents' nomination papers were filed in the Court of the Senior Civil Judge and only received by the Returning Officer after the prescribed deadline, rendering them invalid. The High Court had dismissed the petition as non-maintainable, ruling that election disputes must be referred to the Election Tribunal under Rules 61, 63, and 64 of the Legal Practitioners and Bar Councils Rules, 1976, drawing analogies from Article 225 of the Constitution and Section 52 of the Representation of the People Act, 1976. The Supreme Court granted leave to appeal to consider whether a constitutional petition is maintainable when no specific statutory appeal mechanism against the acceptance of nomination papers is provided under the Bar Councils Act or its rules.
- Whether a constitutional petition is maintainable to challenge the acceptance of nomination papers in a Bar Council election where no specific statutory appeal mechanism is provided under the relevant Bar Council rules?
- Can provisions of the Representation of the People Act 1976 be relied upon to determine the dispute resolution forum for Bar Council elections?
- Does the receipt of nomination papers by a court other than the office of the Returning Officer within the deadline constitute valid filing if they reach the Returning Officer after the deadline?
- Rule 61, Legal Practitioners and Bar Councils Rules 1976
- Rule 63, Legal Practitioners and Bar Councils Rules 1976
- Rule 64, Legal Practitioners and Bar Councils Rules 1976
- Article 225, Constitution of Pakistan 1973
- Section 52, Representation of the People Act 1976
ORDER
' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the judgment of the learned Judges of the High Court, whereby his Constitution petition challenging the acceptance of nomination papers of respondents Nos.3, 4 and 5, was dismissed.
2. The petitioner filed nomination papers for contesting the election of Member of the Provincial Bar Council. According to the Notification issued by the Advocate-General, the Returning Officer, the nomination papers were to be filed and delivered in the office of the Returning Officer up to 2 p.m.
On 6-11-1993. The petitioner filed his nomination papers within time but respondents Nos.3, 4 and 5 filed their nomination papers on 6-11-1993 before 2 p.m. In the Court of Senior Civil Judge, D.I. Khan.
The same was forwarded to the Advocate-General on the same day and was received by the Returning Officer's office on 7-11-1993 at 9 a.m. The petitioner objected that the nomination papers have been filed beyond time and, therefore, they cannot be accepted. This objection was rejected against which Constitution petition was filed which was dismissed.
3. It was observed that in view of Rules 61, 63 and 64 of the Legal Practitioners and Bar Councils Rules, 1976, the disputes with regard to the election are amenable to the jurisdiction of the Election Tribunal and constitution petition filed was not maintainable. Reliance was placed on Article 225 of the Constitution and section 52 of the Representation of the People Act, 1976 in support of these observations. It was finally held that all disputes arising out of elections should be raised through an election petition before an Election Tribunal.
4. The petitioner has contended that firstly the nomination papers filed by respondents Nos.3, 4 and 5 could not be accepted as they were received in the office of the Returning Officer on 7-11-1993, much after the date and time fixed for submitting such nomination papers. It was further contended that no assistance can be sought from the provisions of the Representation of the People Act, 1976 and rules framed thereunder as it provide a form for appeal against the acceptance of nomination papers, which remedy is not available under the Bar Councils Act or its Rules. According to the learned counsel in the absence of any remedy provided against such illegality, the only remedy available was to file a Constitution petition. The questions raised require consideration. Leave is granted.