2015 Y L R 1584
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
ZULIKHA BIBI ---Petitioner
versus
ELECTION COMMISSION OF PAKISTAN through Secretary and another ---
Respondents
C.P. No.353 of 2014, decided on 4th February, 2015.
(a) Balochistan Local Government Act (V of 2010) ---
----S. 24--- Balochistan Zakat and Ushr Act (I of 2012), S. 23---Constitution of Pakistan, Art.
199---Constitutional petition ---Local bodies elections ---Qualification for candidates and elected
members ---Chairman District Zakat Committee ---Public servant ---Writ of quo warranto---
Scope ---Laches, principle of ---Applicability ---Contention of petitioner was that respondent being
government contractor as well as Chairman of Local Zakat Committee was no t eligible to contest
local bodies election ---Respondent contended that he had resigned from the post of Chairman
District Zakat Committee ---Validity ---Nothing was on record that petitioner had any mala fide
on his part or he was exploiting the process for personal gain ---Principle of laches did not apply
to writ of quo warranto as the cause of action was a recurring one ---Chairman District Zakat
Committee being public servant would be barred from contesting the local bodies election---
Respondent being Chai rman of Local Zakat Committee was disqualified from being elected or
chosen as a member of Municipal Committee ---Notification of respondent as member of
Municipal Committee was set aside and Election Commission was directed to delete his name
from the list of validly returned candidates for Municipal Committee ---Constitutional petition
was accepted in circumstances.
Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division,
Islamabad and others PLD 2012 SC 132; PLD 2010 Lah. 625; 2010 PLC (C.S) 731; 2002 PLC
(C.S) 274; Malik Umar Aslam v. Mrs. Sumaira Malik and others 2014 SCMR 45; Muhammad
Khan v. Amanullah PLD 2014 Bal. 128 and Mirza Muhammad Tufail v. District Returning
Officer PLD 2007 SC 16 rel.
(b) Balochistan Zakat and U shr Act (I of 2012) ---
----S. 23---Chairman of District Zakat Committee ---Status ---Chairman District Zakat Committee
being nominated by the Government in consultation with the Provincial Council would be
deemed to be a public servant.
(c) Constitution of Pakistan ---
----Art. 199---Writ of quo- warranto ---Laches, principle of ---Applicability ---Principle of laches
did not apply to writ of quo- warranto, cause of action being recurring one.
Amanullah Kanrani for Petitioner.
Kamran Murtaza and Jameel Agha for Respondent No. 2.
Date of hearing: 22nd December, 2014.
ORDER
MUHAMMAD EJAZ SWATI, J. --The following relief has been claimed in the instant
Constitutional Petition:--
"In view of above it is accordingly prayed that this court may graciously be pleased that
respondent No.2 is not a qualified person to be elected in violation of section 24(f)(g) of
Balochistan Local Government Act, 2010 in the interest of justice."
2. The facts of the case are that the petitioner was contesting candidate on special seat
reserved for women in Municipal Committee, Gaddani, Tehsil Hub District, Lasbela, which was
scheduled to be held on 29th May 2014, whereas, respondent No.2 was also one of the members
of electoral college, who contested the election of Local Government on general seat from
Municipal Committee, Gaddani and elected as unopposed. It is the case of the petitioner that the
respondent No.2 being a Government Contractor as well as Chairman of Local Zakat Committee
was not eligible to contes t the Local Bodies Election held in 2013 and holding of his elective
office is contravention of section 24(f)(g) of the Balochistan Local Government Act, 2010
(hereinafter the "Act, 2010").
3. The learned counsel for the petitioner contended that the res pondent No.2 being a
government contractor and Chairman of the Local Zakat Committee, was not eligible to contest
the Local Bodies Election; that holding of elective office by the respondent No.2, is violative of
section 24(f)(g) of the Act, 2010; that the respondent No.2 had filed a false affidavit through
nomination paper and is liable to be disqualified as a member from Municipal Committee,
Gaddani.
4. The learned counsel for the respondent No.2 contended that after notification of the
returned candidate, writ petition is not maintainable; that the petitioner for the current year 2013 -
14 had not been enlisted as a contractor in Public Health Engineering Department; that prior to
filing nomination papers, he had resigned from the post of Chairman Distric t Zakat Committee,
Lasbela; that the respondent No.2 was performing his duty as Chairman Zakat Committee on
honorarium basis without getting any monetary benefit or salary, therefore, he does not fall
within the category of Government service as provided under section 24(f)(g) of the Act, 2010.
5. We have heard the learned counsel for the parties and have gone through the record of the
case appended along with the petition. Before dilating upon the merits of the case, it is
appropriate to address the prel iminary objection raised by the learned counsel for the respondent
No.2 with regard to the maintainability of the writ petition on the ground that the petitioner is not
an aggrieved person and the instant petition has been filed due to mala fide intention. In the
instant case, nothing has been placed on record, which could indicate any mala fide on the part of
the petitioner or which could suggest that the petitioner is seeking to exploit the process for
personal gain. It has been held by the Hon'ble Suprem e Court of Pakistan in the case of
Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division,
Islamabad and others, PLD 2012 SC 132 that the contents of a petition under Article 183(3) of
the Constitution will override concerns arising on account of the conduct or antecedents of a
petitioner and observed as under: --
"Before concluding our discussion on the issue of maintainability of this petition we need
to address the respondent's submission that the petition has been filed mal a fide. We have found
no lawful basis for this submission. Simply because the petitioner may have been a contender for
the office of Chairman, OGRA, does not per se translate into mala fides. The petitioner can
genuinely consider himself to be a suitable c andidate for the position while simultaneously
holding the view that the respondent does not meet the eligibility criteria set out in section 3(4)
of the Ordinance. Furthermore we have already held in the case titled Moulvi Iqbal Haider v.
Capital Developm ent Authority and others (PLD 2006 SC 394 AT 413) that the contents of a
petition under Article 184 (3) ibid will override concerns arising on account of the conduct or
antecedents of a petitioner. This approach is reflective of the sagacity of wise men su ch as
Maulana Jalaluddin Rumi who have emphasized the importance of the message rather than the
messenger."
6. From the above, it is quite obvious that in writ petition, in the nature of quo -warranto, the
massage is more important than the messenger and the contents of such petitions generally
override the conduct or antecedents of the petitioner, therefore, the contention of the learned
counsel for the respondent No.2, that the instant petition is based on mala fide intention is not
tenable. The other objection raised by the learned counsel for the respondent No.2, that the
impugned notification declaring the respondent No.2 as returned candidate was issued on 26th
December 2013 and the instant writ petition filed on 24th May 2014 hit by the doctrine of l aches
is also not tenable, because it is well recognized principle of law that laches does not apply to
writs of quo warranto, as the cause of action is a recurring one, so long as the elective office
(public office) is being held by a particular person, t hen the unlawful holding of a public office is
a continuing wrong and the said wrong may be called into question by anyone at any time.
Reference may be made to the cases reported in PLD 2010 Lahore 625, 2010 PLC (C.S) 731,
2002 PLC (C.S) 274 and in the ca se tilted Malik Umar Aslam v. Mrs. Sumaira Malik and others,
2014 SCMR 45, the Hon'ble Supreme Court observed as under: --
"Thus, from the above discussion we are of the opinion that adjudication in appeal
proceedings by this Court at the apex level is distinct and different from the decision/findings of
domestic Tribunals, not because of hierarchy but because of the statutory powers available to an
appellate Court under section 67 of ROPA. Adjudication of an issue, which is a continuous bone
of contenti on between the parties, cannot be postponed because of lapse of a period of 10 years
as it has been suggested by the respondent No.1's learned counsel. More particularly, a candidate
has to prove credentials in terms of both Articles 62 and 63 of the Const itution to establish that
no objection/attack is actionable against him or her; both before as well as after entering the
Parliament or Provincial Assembly. In a number of cases, the Court has intervened in the
election of such candidates who were found to be disqualified after having been elected the
members of the Parliament and thereby they were de- notified. "
7. Adverting to the merit of the case, the question involved in the instant case is as to
whether the respondent No.2 while holding the office of the Chairman Zakat Usher Committee
was debarred to contest the election of Municipal Committee in view of the provisions of section
24(1)(f) of the Act, 2010, which is reproduced herein below:
"Qualifications for candidates and elected members. ---(1) A person shall qualify, to be
elected or to hold an elective office or membership of a local council, if he -
(f) is not in the service of the federal government, a provincial government or a local council
or any statutory body or a body which is controll ed by any such government or council or, in
which any of such government or council has a controlling share or interest, except the holders
of elected public office and part -time officials remunerated either by salary or fee:
Subsection (4) of sections 14 and section 23 of the Balochistan Zakat and Usher Act,
2012 (hereinafter the "Act, 2012") provides status of the Chairman and Member of the Zakat
Committee as under:--
"(4) The Chairman shall be nominated by the Government in consultation with the
Provincial Council and the members shall be nominated by the Provincial Council in
consultation with the Chairman.
"23. Certain Persons to be Public Servants.---Every person engaged in, or employed for,
the administration of this Act, shall be deemed to be a public servant within the meaning of
Section 21 of the Pakistan Penal Code."
8. From the above, it is obvious that the Chairman of the District Zakat Committee is being
nominated by the Government in consultation with the Provincial Council and he i s deemed to
be a public servant. The Chairman had been abstained from political activities, therefore, the
Chairman Zakat and Usher Committee is deemed to be in service of statutory body controlled by
the Provincial Government in consultation with the Provincial Council. Section 24(f)(g) of the
Act, 2010 debars the Chairman District Zakat and Usher Committee from contesting the local
bodies election.
In the case titled Muhammad Khan v. Amanullah, PLD 2014 Balochistan 128, it is held
that "Chairman District Zakat and Usher Committee including any person engaged in
administration of Zakat is also termed as "public servant". All public servants are disqualified to
be elected or hold an elective office of Local Council unless a period of six months elapsed,
since his/her retirement or resignation from the office."
In the case of Mirza Muhammad Tufail v. District Returning Officer, PLD 2007 SC 16, it
had determined the decisive test as to whether a person is in the service of Pakistan or in the
service of a wholly or owned or controlled by the Government and observed as under: --
"In section 152(g) the expression "in the service" is of significance. Herein the service
would not be taken in the strict, restricted and narrow technical sense as defined in the Civil
Servant Act or in other service laws or in the Constitution but would be construed in the general,
plain, and liberal sense. This Court in the case of "Muhammad Naseem Turyali v. Ghulam
Sarwar Khan and others" (unreported Civil Appeal No. 1374 of 2003 and other connected
appeals) held that the service of a statutory body etc. should not be confused with the civil
service or civil servant. In the cited case the appellant was in the service of Sui -Southern Gas
Company Manage -ment Trainee at the time of filing nomination papers and also at the time of
poll, whose election, after he being declared as returned candidate, was challenged by the other
contesting candidates on the ground that he being in the service of a Company which was owned
and controlled b y the Federal Government was disqualified to contest the election in view of
Article 63(1) clauses (e) and (k) of the Constitution. The petitions filed by the respondents were
allowed and the petitioner was held being an employee of the company controlled by the
Government, was disqualified to contest the election. His writ petition before the High Court
failed who then filed an appeal before this Court and while dismissing his appeal, it was
observed in para. 9 which reads: --
"The expressions service of any statutory body or anybody which is owned or
controlled by the Government or in which the Government has a controlling share or interest;
should not be confused with "Civil Service" or a "Civil Servant". It is not circumscribed by any
concept of salary or fee. "
9. In the instant case, admittedly, the respondent No.2 was declared as returned candidate of
Municipal Committee, Gaddani vide notification dated 26th December, 2013, he sent his
resignation being Chairman Local Zakat Committee Chichai on 6th May, 2014 and the said
resignation was accepted on 13th May 2014, we, therefore, find that as at the relevant date i.e.
26th December 2013, the respondent No.2 was still Chairman of the Local Zakat Committee
Chichai and, we have also held that being a Chai rman of Zakat and Usher Committee, amounts
to be in "service" as defined in section 24(f) of the Act, 2010, therefore, the respondent No.2, is
disquali -fied from being elected or chosen as a member of Municipal Committee, Gaddani.
In view of the above, the Writ Petition No. 353 of 2014 is allowed, the Notification dated
26th December, 2013 issued by the respondent No.1 to the extent of respondent No.2 is set aside
and the name of the respondent No.2, is ordered to be deleted accordingly from the list of validly
returned candidates for Municipal Committee, Gaddani (Chechai -I Ward).
Copy of this order be sent to the Election Commission of Pakistan for further necessary
action.
AG/24/Bal Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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