P L D 2013 Lahore 509 (PLP)

The petitioner, who is an objector/elector assails order dated 7-4-2013 passed by the Returning Officer, Nankana Sahib, whereby, objections raised by the petitioner against the candidature of respondent No.2 have been rejected. The learned counsel for the petitioner submits that the petitioner stands disqualified in terms of Article 63(1)(n) of the Constitution of Islamic Republic of Pakistan, 1973 in as much as the loan obtained by respondent No.2 remained unpaid for more than a period of one year from the due date. He submits that a sum of Rs.21,16,644 along with cost of funds was decreed by the learned Banking Court, Lahore on 5-4-2013 and has remained unpaid for over a period of one year from the date with an admitted date of default as 12-6-2009. The said liability was deposited with the bank by the respondent after the decree was passed on 5-4-2013 while the nomination papers of respondent No.2 were field on 31-3-2013. 3, Learned counsel for respondent No.2 while admitting the above facts has relied on section 14(3-A) of the Representation of the People Act, 1976 (ROPA) to submit that the petitioner has deposited the loan amount before the rejection of the nomination paper, hence the disqualification under Article 63(1)(n) of the Constitution is not attracted.

4. The learned standing counsel appearing for the Federal Government as also for the learned Attorney General for Pakistan in pursuance of the notice under Order XXVII-A of the C.P.C. has supported of the contention of the petitioner.

5. Arguments heard. Record perused.

6. Admittedly, respondent No.2 had obtained a loan of over two million, which remained unpaid and finally a decree in the sum of Rs.21,16,644 was passed against the respondent by the learned Banking Court, Lahore on 5-4-2013, Respondent No.2 filed his nomination paper on 31-3-2013 but deposited the said loan amount after the decree was passed on 5-4-2013 and before the acceptance of the nomination paper on 7-4-2013.

7. The question before this Court is whether Article 63(1)(n) of the Constitution is attracted in the present case. Article 63(1)(n) of the Constitution states as follows:-- "63(1)(n): he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off". (emphasis supplied) The above Article provides for a disqualification on the ground that if a candidate has obtained a loan for an amount of Rs.2 million or more from any bank etc. which remains unpaid for more than one year from the due date the said candidate stands disqualified from being elected or chosen as Member of the Parliament. The word "remains" in the above Article connotes a continuous default, which means, that the loan must continue to remain unpaid for a period of over one year and till the time the candidate opts to present himself to be elected to the Parliament. The above disqualification is not attracted if the loan simply remains unpaid for more than one year from the due date, but stands attracted if the loan 'remains' unpaid at the time when the candidate presents himself for election.

8. What is then the cut off date for the deposit of unpaid loan to avoid the mischief of disqualification under Article 63(1)(n) or the last date for curing the said disqualification? First, parallel can be drawn with Article 63(1)(o) of the Constitution that also deals with similar disqualification regarding government dues and utility expenses. In the said Article disqualification is attracted when the default in the payment of government dues or utility expenses subsists for over a period of six months till the time of filing of nomination papers. The importance of the time of filing of the nomination papers cannot be over emphasized. It is the entry point for a candidate to step into the electoral process and in the wisdom of the Constitution the candidate must not only be qualified but must also be free from any taint of disqualification at this initial stage. Similarly Article 63(1)(n) also crystallizes if the loan remains unpaid till the time of filing of the nomination papers. Any payment made after filing of the nomination papers does not cure this constitutional disqualification. Reading the time of the "filing of the nomination papers" as the cut off date in both the above constitutional disqualifications advances a harmonious interpretation of the constitution and avoids the possibility of discrimination in the application of the above Articles, which carry similar objectives and purposes.

9. We are aware that section 14(3-A) of Representation of the People Act, 1976 provides that if the payment of unpaid loan is made before the rejection of the nomination papers, the disqualification under Article 63 (1)(n) is not attracted. We are afraid the said provision of Representation of the People Act, 1976 besides being inconsistent with Article 63(1)(o), disrupts the harmony of the constitutional provisions leading to discriminatory application of the above two constitutional disqualifications, which cannot be permitted through sub-constitutional legislation. We therefore hold that disqualification under Article 63(1)(n) becomes compete only when the loan remains unpaid for ever a year till the date of filing of the nomination papers. We therefore also held that section 14(3-A) of Representation of the People Act, 1976 is inconsistent with the scheme of the Constitution in general and Article 63(1)(o) and (n) in particular.

10. In the present case the unpaid loan was admittedly paid after the filing of the nomination paper which does not cure the disqualification as discussed above. Hence the order of acceptance of the nomination paper passed by the Returning Officer dated 7-4-2013 is set aside, resultantly the nomination papers of respondent No.2 are rejected. Returning Officer is directed to remove the name of respondent No.2 from the list of validily nominated candidates. MWA/R-6/L Petition allowe