2017 CLC 196 Lahore
2017 C L C 196
[Lahore]
Before Shahid Waheed, J
IFTIKHAR----Petitioner
Versus
PROVINCIAL ELECTION COMMISSIONER ELECTION COMMISSION OF PAKISTAN, LAHORE and 2 others----Respondents
Writ Petition No.34965 of 2016, decided on 8th November, 2016.
(a) Jurisdiction---
----Bona fide proceedings in Court without jurisdiction---Effect---Presentation of appeal before wrong Authority is a rectifiable irregularity which can easily be removed by forwarding the same to proper authority.
(b) Public functionary---
----No one can be condemned or penalized on account of act of a public functionary.
(c) Limitation Act (IX of 1908)---
----S. 14---Limitation---Exclusion of time---Bona fide proceedings in Court without jurisdiction---Nomination papers of respondent were rejected by Returning Officer---Respondent filed (election) appeal in time but it was fixed before Appellate Authority having no jurisdiction---Appeal was transferred to Appellate Authority of competent jurisdiction and order passed by Returning Officer was set aside--- Plea raised by petitioner was that when appeal was transferred to competent Authority, the same was barred by limitation---Validity---Date on which memorandum of appeal was presented, though before wrong Authority, would be taken into consideration to determine issue of limitation---Last date for filing of appeal before Appellate Authority against acceptance/rejection of nomination papers by Returning Officer was 20-10-2016 and appeal which was filed by respondent on 20-10-2016 against decision of Returning Officer, though before wrong forum, could not be treated as time barred---High Court declined to interfere in the matter as Appellate Authority had rightly declined objection raised by petitioner---Constitutional petition was dismissed in circumstances.
Government of N.-W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104 rel.
ORDER
Khalid Jamil for Petitioner.
Muhammad Qasim Iqbal, Legal Advisor for Election Commission of Pakistan.
SHAHID WAHEED, J.--- This constitutional petition is of the objector and arises from the proceedings conducted by the Returning Officer for scrutiny of nomination papers through which the name of
1 of 32/22/2018, 12:27 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L209
respondent No.3, Arshad Jan, was proposed to contest election for the seat reserved for category of minority Councilor in Union Council No.237, Lahore. The Returning Officer rejected the nomination papers of the respondent No.3 vide decision dated 17.10.2016 on the ground that at the time of scrutiny his seconder, Raza Ullah Mustafa Hashmi, was not present. The respondent No.3, feeling aggrieved, assailed the said decision through an appeal. The memorandum of appeal was presented within stipulated time before Malik Shafique Ahmad, learned Additional District Judge, Lahore/Appellate Authority. During the course of arguments on the said appeal it transpired that area of Union Council No.237, Lahore was not assigned to Malik Shafiq Ahmad, learned Additional District Judge. The appeal was, therefore, transferred to the proper Appellate Authority i.e. Mr. Shazib Saeed, learned Additional District Judge, Lahore vide order dated 21.10.2016. On transfer, the petitioner filed an application before learned Appellate Authority for dismissal of appeal. It was maintained in the application that Malik Shafiq Ahmad, Addl. District Judge had no power to transfer the appeal; that the date on which the appeal was presented before Mr. Shazib Saeed, Addl. District Judge, it had become time barred; and, that since the seconder was not present at the time of scrutiny, the nomination form of respondent No.3 could not be accepted. On consideration of the matter, the learned Appellate Authority found the appeal within time and consequently allowed the same vide decision dated 22.10.2016; and, Returning Officer was directed to include the name of respondent No.3 in the list of validly nominated candidates.
2.The petitioner is aggrieved by the decision dated 22.10.2016 of the learned Appellate Authority. It is argued that Malik Shafique Ahmad, learned Additional District Judge before whom the appeal was firstly presented by the respondent No.3 was not competent to transfer the said appeal to Mr. Shazib Saeed, learned Additional District Judge/Appellate Authority; and, that when appeal was presented before Mr. Shazib Saeed learned Additional District Judge/Appellate Authority it had become time barred and, therefore, the same could not be accepted.
3.The afore noted arguments have not persuaded me to interfere with the impugned decision dated 22.10.2016 of the learned Additional District Judge/Appellate Authority (Mr. Shazib Saeed). The only question which requires determination in this petition is whether Malik Shafique Ahmad, learned Additional District Judge before whom the respondent No.3 presented the appeal against the decision of the Returning Officer could transfer the same to the proper Appellate Authority i.e. Mr. Shazib Saeed, learned Additional District Judge/ Appellate Authority. In my view answer to the said question is in the affirmative for the reason that the presentation of appeal before the wrong Authority was a rectifiable irregularity which could easily be removed by forwarding the same to the proper Authority. Even otherwise the appeal presented by the respondent No.3 was entertained without any objection and registered on 20.10.2016 by Malik Shafique Ahmad, learned Additional District Judge. This was due to over-sight. Since the respondent No.3 could not be condemned or penalized on account of act of public functionary, the appeal was required to be transferred to the proper Appellate Authority. Exactly the same happened on presentation of appeal by respondent No.3, which was perfectly valid. Thus, the date on which the appeal was registered before the proper Appellate Authority by way of transfer would not be construed as the date of preferring appeal against the decision of the Returning Officer. In fact, the date on which the memorandum of appeal was presented, though before the wrong Authority, would be taken into consideration to determine the issue of limitation. In this regard guidance may be had from the judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Government of N.-W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others (2003 SCMR 104). The relevant extract of the said judgment reads as under:
"We feel sorry in holding that the Section Officer who had written the above letter was from the parent department of the respondents i.e. the Health Department. When he wrote the above letter he was certainly seized of their representation as they reached within the departmental hierarchy. It was
2 of 32/22/2018, 12:27 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L209
incumbent upon him to send their departmental appeals to the competent Authority instead of intimating the respondents to prefer the same through proper channel to the appellate authority if they so wished. Since it was a rectifiable irregularity which could easily have been removed by the Section Officer himself who was sitting in the parent department of the respondents by forwarding the same to the proper authority, the respondents in the circumstances could not be non-suited. This was the minimum expectation from him which he deliberately avoided with impunity. Reliance in this respect is placed upon 1992 SCMR 1789 and 1988 SCMR 1458. "
5. (sic) In the present case the last date for filing of appeal before the Appellate Authority against the acceptance/rejection of nomination paper by the Returning Officer was 20.10.2016. The appeal which was filed by respondent No.3 on 20.10.2016 against the decision of Returning Officer, though before wrong forum, could not be treated as time barred. Thus, learned Appellate Authority rightly declined the objection raised by the present petitioner.
6.In the sequel, this petition is dismissed.
MH/I-26/LPetition dismissed.
[Lahore]
Before Shahid Waheed, J
IFTIKHAR----Petitioner
Versus
PROVINCIAL ELECTION COMMISSIONER ELECTION COMMISSION OF PAKISTAN, LAHORE and 2 others----Respondents
Writ Petition No.34965 of 2016, decided on 8th November, 2016.
(a) Jurisdiction---
----Bona fide proceedings in Court without jurisdiction---Effect---Presentation of appeal before wrong Authority is a rectifiable irregularity which can easily be removed by forwarding the same to proper authority.
(b) Public functionary---
----No one can be condemned or penalized on account of act of a public functionary.
(c) Limitation Act (IX of 1908)---
----S. 14---Limitation---Exclusion of time---Bona fide proceedings in Court without jurisdiction---Nomination papers of respondent were rejected by Returning Officer---Respondent filed (election) appeal in time but it was fixed before Appellate Authority having no jurisdiction---Appeal was transferred to Appellate Authority of competent jurisdiction and order passed by Returning Officer was set aside--- Plea raised by petitioner was that when appeal was transferred to competent Authority, the same was barred by limitation---Validity---Date on which memorandum of appeal was presented, though before wrong Authority, would be taken into consideration to determine issue of limitation---Last date for filing of appeal before Appellate Authority against acceptance/rejection of nomination papers by Returning Officer was 20-10-2016 and appeal which was filed by respondent on 20-10-2016 against decision of Returning Officer, though before wrong forum, could not be treated as time barred---High Court declined to interfere in the matter as Appellate Authority had rightly declined objection raised by petitioner---Constitutional petition was dismissed in circumstances.
Government of N.-W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104 rel.
ORDER
Khalid Jamil for Petitioner.
Muhammad Qasim Iqbal, Legal Advisor for Election Commission of Pakistan.
SHAHID WAHEED, J.--- This constitutional petition is of the objector and arises from the proceedings conducted by the Returning Officer for scrutiny of nomination papers through which the name of
1 of 32/22/2018, 12:27 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L209
respondent No.3, Arshad Jan, was proposed to contest election for the seat reserved for category of minority Councilor in Union Council No.237, Lahore. The Returning Officer rejected the nomination papers of the respondent No.3 vide decision dated 17.10.2016 on the ground that at the time of scrutiny his seconder, Raza Ullah Mustafa Hashmi, was not present. The respondent No.3, feeling aggrieved, assailed the said decision through an appeal. The memorandum of appeal was presented within stipulated time before Malik Shafique Ahmad, learned Additional District Judge, Lahore/Appellate Authority. During the course of arguments on the said appeal it transpired that area of Union Council No.237, Lahore was not assigned to Malik Shafiq Ahmad, learned Additional District Judge. The appeal was, therefore, transferred to the proper Appellate Authority i.e. Mr. Shazib Saeed, learned Additional District Judge, Lahore vide order dated 21.10.2016. On transfer, the petitioner filed an application before learned Appellate Authority for dismissal of appeal. It was maintained in the application that Malik Shafiq Ahmad, Addl. District Judge had no power to transfer the appeal; that the date on which the appeal was presented before Mr. Shazib Saeed, Addl. District Judge, it had become time barred; and, that since the seconder was not present at the time of scrutiny, the nomination form of respondent No.3 could not be accepted. On consideration of the matter, the learned Appellate Authority found the appeal within time and consequently allowed the same vide decision dated 22.10.2016; and, Returning Officer was directed to include the name of respondent No.3 in the list of validly nominated candidates.
2.The petitioner is aggrieved by the decision dated 22.10.2016 of the learned Appellate Authority. It is argued that Malik Shafique Ahmad, learned Additional District Judge before whom the appeal was firstly presented by the respondent No.3 was not competent to transfer the said appeal to Mr. Shazib Saeed, learned Additional District Judge/Appellate Authority; and, that when appeal was presented before Mr. Shazib Saeed learned Additional District Judge/Appellate Authority it had become time barred and, therefore, the same could not be accepted.
3.The afore noted arguments have not persuaded me to interfere with the impugned decision dated 22.10.2016 of the learned Additional District Judge/Appellate Authority (Mr. Shazib Saeed). The only question which requires determination in this petition is whether Malik Shafique Ahmad, learned Additional District Judge before whom the respondent No.3 presented the appeal against the decision of the Returning Officer could transfer the same to the proper Appellate Authority i.e. Mr. Shazib Saeed, learned Additional District Judge/ Appellate Authority. In my view answer to the said question is in the affirmative for the reason that the presentation of appeal before the wrong Authority was a rectifiable irregularity which could easily be removed by forwarding the same to the proper Authority. Even otherwise the appeal presented by the respondent No.3 was entertained without any objection and registered on 20.10.2016 by Malik Shafique Ahmad, learned Additional District Judge. This was due to over-sight. Since the respondent No.3 could not be condemned or penalized on account of act of public functionary, the appeal was required to be transferred to the proper Appellate Authority. Exactly the same happened on presentation of appeal by respondent No.3, which was perfectly valid. Thus, the date on which the appeal was registered before the proper Appellate Authority by way of transfer would not be construed as the date of preferring appeal against the decision of the Returning Officer. In fact, the date on which the memorandum of appeal was presented, though before the wrong Authority, would be taken into consideration to determine the issue of limitation. In this regard guidance may be had from the judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Government of N.-W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others (2003 SCMR 104). The relevant extract of the said judgment reads as under:
"We feel sorry in holding that the Section Officer who had written the above letter was from the parent department of the respondents i.e. the Health Department. When he wrote the above letter he was certainly seized of their representation as they reached within the departmental hierarchy. It was
2 of 32/22/2018, 12:27 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L209
incumbent upon him to send their departmental appeals to the competent Authority instead of intimating the respondents to prefer the same through proper channel to the appellate authority if they so wished. Since it was a rectifiable irregularity which could easily have been removed by the Section Officer himself who was sitting in the parent department of the respondents by forwarding the same to the proper authority, the respondents in the circumstances could not be non-suited. This was the minimum expectation from him which he deliberately avoided with impunity. Reliance in this respect is placed upon 1992 SCMR 1789 and 1988 SCMR 1458. "
5. (sic) In the present case the last date for filing of appeal before the Appellate Authority against the acceptance/rejection of nomination paper by the Returning Officer was 20.10.2016. The appeal which was filed by respondent No.3 on 20.10.2016 against the decision of Returning Officer, though before wrong forum, could not be treated as time barred. Thus, learned Appellate Authority rightly declined the objection raised by the present petitioner.
6.In the sequel, this petition is dismissed.
MH/I-26/LPetition dismissed.
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