2004 PLP 585 (YLR)

(j) has not been adjudged a wilful defaulter of any tax or other financial dues owed to the Federal, a Provincial or a Local Government or any financial institution, including utility bills outstanding fox six months or more;" In the above-referred provision, the most important phrase for the purposes of this case is "adjudged". In order to understand the meaning and scope of the above -referred word, it would be advantageous to reproduce its definition made in different dictionaries:-- (1) CORPUS JURIS SECUNDUM VOLUME

2. The word "adjudge" is defined as meaning to pass on judicially; to adjudicate; to decide, settle or decree; decide, determine or find; to sentence or condemn. The worn does not necessarily carry with it the idea of a judgment according to law. "Adjudge" has been held to be synonymous with "adjudicate". While it has been held that the term implies a judicial determination or a fact, and the entry of a judgment it does not necessarily refer to final judgment, but may be applied as well to interlocutory orders or decrees of Court; and it has been held that the word does not necessarily carry with it the idea of a judgment according to law, and that, even where used with words ordinarily found in criminal statutes, it may refer to an. act of the political department of the Government. It has been said that it is not so completely a word of art or of such technical meaning 'that the obvious Legislative intent may not be sought. "Adjudged" is defined as meaning adjudicated or judicially determined; decided or determined; deemed; found or decided. "Adjudged" is practically synonymous with "believe". By common understanding the word "adjudicate" connotes determination by a Court or Judge in a judicial proceeding, and thus the term is defined to mean to determine finally; to settle in the exercise of judicial authority; to determine in the exercise or judicial power; to judicially determine. (2) WEBSTER'S NEW WORLD COLLEGE DICTIONARY THIRD EDITION. To judge, decide; to judge or decide by law; to declare or order by law; to give or award (costs, etc.) by law. (3) WORDS AND PHRASES, VOL. I, 1996 To pass on judicially, to decide, settle, or decree, or to sentence or condemn. Judgment of a Court of competent jurisdiction; equivalent of convicted and sentenced. Implies a judicial determination of a fact, and the entry of a judgment. (4) BALLENTINE'S LAW DICTIONARY, THIRD EDITION To give judgment, to decide; to sentence. (5) BLACK'S LAW DICTIONARY, FIFTH EDITION To pass on judicially, to decide, settle or decree, or to sentence or condemn. Judgment of a Court of competent jurisdiction; equivalent of convicted and sentenced. Implies a judicial determination of a fact, and the entry of a judgment." The above-quoted definitions indicate that a person can only be said to have been "adjudged" provided he has undergone the rigours of a trial before a Court of competent jurisdiction and some verdict is given by the Court in a judicial proceeding The argument of the learned counsel for the respondents that the issuance of a statement of account by a Bank Officer after consulting the accounts of an individual, amounts to adjudication, is not acceptable. Such a statement of account when presented before a Court of competent jurisdiction may be accepted, rejected or varied, while, the findings given by the Court on such determination would be an adjudication at law, which status cannot be given to a statement of account prepared by a Bank Officer. In the instant case, no doubt, at the time, when the nomination papers were filed and scrutinized, a suit against petitioner No. 1 was pending in the Banking Court, but it had not materialized into a final adjudication till 27-9-2001, when a judgment and decree was passed by the learned Banking Court. Therefore, it cannot be said that petitioner No. 1 was an "adjudged defaulter" at the time of filing of nomination papers. It is also to be observed that the election petition was filed by respondents Nos.2 and 3 on 5-7-2001. Even on this date, there was no adjudication of default against petitioner No.1, therefore, under rule 81 of the Punjab Local Government Elections Rules, 2000, no ground was available with the Election Tribunal to declare petitioner No.1 as disqualified. Therefore, it is held that the election petition fled by respondents Nos.2 and 3 on 5-7-2001, was not even maintainable.

12. The argument of the learned counsel for the respondent that, as the utility bills do not require any adjudication by a Court, therefore, on the same analogy the default of any tax and other financial dues can also be said to be "adjudged" on mere presentation of a demand, is without any substance. The use of word "including" in clause (j) of section 14 makes the utility bills disjunctive from the tax and financial dues which do require adjudication by a Court of competent jurisdiction.

13. The argument of the learned counsel for the respondents has some force that the judgment and decree of the learned Banking Court dated 27-9-2001, was assailed by petitioner No.1 through Regular First Appeal No.8378 of 2001 before this Court. The operation of the decree was suspended by this Court vide order dated 23-5-2002, subject to furnishing bank guarantee equivalent to the decretal amount but since petitioner No.1 failed to submit the requisite bank guarantee, he has become a wilful adjudged defaulter. Unfortunately, all this happened after the filing of the election petition on 5-7-2001, therefore, the only course left with respondents Nos.2 and 3 was to move an application to the Chief Election Commissioner under section 161 of the Punjab Local Government Ordinance, 2001, where the same relief is available to them.

14. The objection of the petitioners that election petition was liable to dismissal for non-impleading respondents Nos.4 and 5 before the Election Tribunal as required under rule 71 of the Election Rules, 2000, is not sustainable, because rule 77 which provides the penalty for non-compliance of rule 71, is a discretionary power with the Tribunal. Both the rules are reproduced for ready reference:-- "

71. Parties to the petition.

The petitioner shall join all contesting candidates as respondents to his election petition and shall serve personally or by registered post (A.D.) on each respondent a copy of his petition.

77. Dismissal of Petition during trial.--The Tribunal may dismiss a election petition if-- (a) the provisions of rules 70, 71 and 72 have not been complied with; or." The use of word "may" indicates that the Tribunal may or may, not exercise his power under this rule as the circumstances deem necessary. In the instant case neither the petitioners had raised this objection in their written reply to the election petition nor they have shown that any prejudice was caused to them. They have also failed to show that such non-impleading of respondents Nos.4 and 5 has materially affected the merits of the case. It is also evident that respondents Nos.4 and 5 were not the serious contestants as they secured only 33 votes, as against the petitioners and respondents Nos.2 and 3 who secured 3213 and 2713 votes respectively.

15. Since, it is already held in the preceding paragraphs that the election petition filed by respondents Nos.2 and 3 was not competent, therefore, it would be of no use to go into the question as to whether as a result of acceptance of the election petition respondents Nos.2 and 3 could or could not have been declared as returned.

16. For what has been stated above, instant writ petition is allowed. The order passed by the learned Election Tribunal dated 6-7-2002, is declared to be illegal and without lawful authority. No order as to costs. H.B.T./M-1968/L Constitutional petition allowed.