PESHAWAR, Aug 30: Dismissing two identical writ petitions, a division bench of the Peshawar High Court on Friday upheld the resignation condition for local council Nazimeen and Naib Nazimeen before filing their nomination papers for the scheduled general elections.

The bench, comprising Justice Ijazul Hassan and Justice Qaim Jan Khan, ruled that section 158 of the NWFP Local Governments Ordinance, 2001, placing a bar on dual membership of a Nazim and Naib Nazim, was not violative of the constitution and the provincial government had not overstepped its powers by barring Nazimeen and Naib Nazimeen from contesting polls without vacating their present posts.

The petitioners — district Karak’s Naib Nazim, Malik Qasim and a Union Nazim of Hangu district, Amanullah Khan — have stated that section 158 of the NWFP Local Government Ordinance, 2001, was violative to Article 223 of the Constitution and Representation of Peoples Act 1976.

Advocates Abdul Hakeem Khundi and Abdul Lateef Afridi appeared for the petitioners and contended that the general elections were governed by the Representation of People’s Act and other election laws, wherein, no such bar was placed on a holder of political office.

They added that under Article 223 of the Constitution a candidate had to vacate one of the office once he or she got elected to another political office and there was no such condition of prior resignation.

They contended that the Local Governments Ordinance was a provincial law, and a federal statute had overriding effect over a provincial law. The referred to Article 143 of the Constitution, arguing that when a federal and provincial laws were in conflict with each other, then the federal law would prevail. The counsel stated that conducting general elections was a federal subject and the provincial government had no authority to interfere in it.

Additional Advocate-General, NWFP, Imtiaz Ahmad appeared for the provincial government and contended that the impugned provision of the local governments law was incorporated keeping in view the aspiration of the people. He added that the law was aimed at barring the Nazimeen and Naib Nazimeen from misusing funds during elections as if anyone of them contested polls they would definitely utilize the council’s funds for their election campaign.

Ahmad contended that local bodies was a provincial subject and the provincial government had the authority to make legislation in that regard. He argued that the government had the powers to place certain restrictions on the Nazimeen and Naib Nazimeen for the smooth functioning of the local government system.

Moreover, he contended that the petitioners had only challenged the recent amendment, whereby, the members of local councils were allowed to contest polls without tendering their resignations, whereas, the Nazimeen and Naib Nazimeen had to resign before filing their papers.

He added that even if the high court accepts their plea and sets aside the impugned amendment in section 158, the original provision would come into force and even under that provision they could not contest elections without resigning from their present posts.