QASIR IQBAL vs Ch. ASAD RAZA, RETURNING OFFICER, NA-38, RAWALPINDI-III

The appellant has assailed the legality of order dated 26-12-1996 whereby the Returning Officer of NA-38, Rawalpindi III, rejected his nomination papers on the ground that no one had attended the office to join the proceedings during the course of scrutiny and that the names of the proposer and seconder did not appear in the electoral roll of the constituency.

2. Learned counsel for the appellant submits that appellants proposer and seconder belonged to the same constituency; that the Returning Officer ought to have waited for the appellant till 3-00 p.m. that no further opportunity was provided by the Returning Officer for substituting the proposer and the seconder; that the nomination papers were rejected arbitrarily although the appellant had requested the Returning Officer to allow him to bring other proposer and seconder.

3. On the other hand, Returning Officer firmly states that no one had appeared at the time of scrutiny of the appellant's nomination papers and that he wanted till 4-00 p.m. but the appellant or his alleged proposer and seconder from the same constituency did not appear before him.

4. By virtue of the provisions of section 12 of the Representation of the Peoples Act, 1976, and elector of a constituency may propose or second the name of any duly qualified person 'to be a member for that constituency. This is a substantial requirement of the law and if the proposer and the seconder do not belong to the constituency from which a candidate intends to contest the election then the Returning Officer has no option but to reject the nomination papers while scrutinising the same under the provisions of section 14(3)(d) of the Act. The defects contemplated in section 14(b)(ii) are, minor ones which could be remedied forthwith. Such defects may be in respect of the name, serial number is the electoral roll or other particulars of a candidate or his proposer or seconder with a view to bring them in conformity with the corresponding entries made in the electoral roll. It cannot be urged that if the proposer or the seconder does not at all belong to the constituency concerned the defect of entering their names in the nomination papers would be a minor one. As mentioned above, this is a defect of substantial nature which cannot be allowed to be remedied forthwith.

5. We are fortified in our view by a judgment in the case Hafiz Muhammad Abbas v. Returning Officer and 16 others (1993 M LD 2509) (Election Tribunal, Punjab) in which it was held that the defect regarding the proposer not being from the constituency for which the candidate has filed his nomination papers could neither be left unnoticed nor remedied. The appellant was fully aware of the date for the scrutiny of the nomination papers and in his own interest, ought to have appeared before the Returning Officer alongwith his proposer and seconder. However, he did not do the needful. In his absence, the Returning Officer verified the names of the proposer and the seconder which were not contained in the electoral roll of the Constituency NA-38. Hence he was fully justified in rejecting the appellant's nomination papers by virtue of the provisions of section 14(3)

(d) of the Representation of People Act, 1976. We find no merit in this appeal which is dismissed.