2009 PLP 1171 (CLC)

SYED YAHYA ZAHID GILANI, J.

Background of the case in brief is that Muhammad Aslam and Malik Sakhi Noor filed an election petition before the District Judge, D.I. Khan empowered as Election Tribunal for District Tank who vide his impugned order, dated 4-12-2006 dismissed their petition for not accompanying the receipt showing that they had deposited in the scheduled Bank in favour of the Chief Election Commissioner a sum of Rs.3,000 as fee for the petition under rule 61(2) of the N.-W.F.P. Local Government (Conduct of Election) Rules, 2005.

2. The aforesaid order has been impugned in the instant constitutional petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that the penal clause applied against the petitioners was not interpreted in accordance with law and hence, neither the law has been correctly applied nor the jurisdiction has been properly exercised. It has been prayed that the impugned order may be declared beyond the lawful authority and ineffective upon the rights of the petitioners and the election petition may be directed to be decided on merits.

3. We have listened arguments of learned counsel for the parties and have gone through the record as well as the relevant law.

4. True, that under the rule 61(2) (ibid) there is a legal requirement of deposit of Rs.3,000 fee and accompanying its receipt with the election petition. It is also true and correct that the Tribunal has power to dismiss and election petition under rule 68(1) (ibid) for non-compliance of rule 61(2) (ibid), but we see that the dismissal of petition is not the absolute and solitary option. Plain reading of rule 61(2) (ibid) reveals that the word "may" has been used in the aforesaid empowerment which connotes discretionary power and whenever a discretionary power is bestowed upon a Tribunal, that has to be exercised judicially, keeping in view the general guiding principles of law attracted in the case.

5. We have contemplated and concluded that since actually, and without any ambiguity it is a matter of payment of fee for the benefit of Election Commission of Pakistan and the primary object of Rule 61(2) (ibid) is to collect revenue for Election Commission, therefore, before applying the penal clause contained in Rule 68(1) (ibid), the relevant general principles governing the payment and recovery of court-fees should have been followed. In the leading judgment delivered by Honourable the apex Court in the case of Akbar Ali and 4 others v. The Province of Punjab 1989 SCMR 1040, wherein memorandum of appeal was not properly stamped, it was held that it was duty of the functionaries of the Court to have scrutinized the document with a view to ascertain that the same was properly stamped, and it was also duty of the counsel filing the appeal, to inform his client about deficiency of court-fee on the memorandum of appeal. It has further been observed in the same respectful judgment that the litigating party had not wilfully defaulted in payment of court-fee, to justify dismissal of its application for extension of time. The case was thus remanded for allowing the party to make good the deficiency of court-fee within fifteen days.

6. In another leading judgment delivered in the case of Muhammad Mohibullah v. Seth Chaman Lal 1994 SCMR 222(a), it has been laid down by the Honourable apex Court that dismissal of appeal without giving opportunity to make good balance court-fee, was not proper.

7. In an old dictum of Honourable apex Court handed down in the case of S.M. Ayub v. Syed Yousaf Shah PLD 1967 SC 486 a single technical defect was not considered sufficient to throw out an election petition. Similarly, in another case titled Abdul Nasir v. Election Tribunal 2004 SCMR

602. Honourable apex Court has again reiterated that technical defect like non-verification of election petition and its annexures would not render the election petition not maintainable. These trite principles highlighted in both these decisions have been applied by a Division Bench of this Court in the case of Haji Amirzada v. Chief Election Commissioner of Pakistan 2007 MLD 1923, to hold that non-compliance of Rules 61, 62 and 63 of N.-W.F.P. Local Government (Conduct of Election) Rules, 2005 cannot render the election petition un-maintainable.

8. We, therefore, conclude that before exercising discretionary jurisdiction apply penal clause and dismiss the election petition under Rule 68(1) (ibid), the rule of propriety demanded that a notice of caution should have been given by the Election Tribunal to petitioners to make good the court-fee within a fixed reasonable time and in case of non-compliance, the penal clause could have appropriately been applied. The application of penal clause, without scrutiny by the Court staff at the time of receipt of election petition to detect the fault of non-deposit of fee and without notice of caution by the Tribunal to make good the deficiency, was not at all justified because due to unobjected admission of the election petition by the functionaries of the Tribunal gave an official impression to petitioners that their petition was properly filed. Here, we must recall that the law requires that none should suffer for act of the Court which also includes the act of functionaries of the Court.

9. For all these reasons, we hold that learned Tribunal has applied the rule 68(i) (ibid) in violation of relevant principles of law and natural justice, hence, the impugned order is thus, held to be infirm, in arbitrary exercise of discretionary jurisdiction and consequently bereft of lawful-authority. The petition is, therefore, accepted, the impugned order is set aside and the case is remanded to learned Tribunal with the directions to decide the same on merits. The petitioners are directed to deposit Rs.3,000 as fee according to the relevant rule and submit receipt to the Tribunal within three months, failing which, this writ petition shall be deemed to have been dismissed. Learned Tribunal shall summon the parties after receipt of record from this Court. H.B.T./158/P Case remanded.