P L D 2013 Lahore 548 (PLP)

Through this single order we propose to decide W.P. No.9300 of 2013 and W.P. No.9301 of 2013 as common question of law arises out of both the petitions and the same are directed against the same judgment.

2. By way of the impugned judgment of the Election Tribunal of this court dated 13-4-2013, nomination papers of the petitioner were rejected. The learned counsel for the petitioner submits that the grounds that persuaded the Tribunal to reject the nomination papers of the petitioner do not constitute lawful reasons for visiting the petitioner with the penalty of rejection of his nomination papers. He submits that despite the fact that there was no degree in the field nor was it presented before the Returning Officer, the learned Tribunal of this Court only relied upon a report/document which indicated that the matter relating to a person named Hameed Akbar Khan son of Ghularn Akbar Khan of B.A. Degree had come up before the Disciplinary Committee of the University of Balochistan Quetta, on the basis of which the learned Election Tribunal concluded that the petitioner had passed B.A. examination held under the University of Balochistan through "impersonation". The learned counsel for the petitioner submits that there was no lawful evidence to support the above conclusion.

3. Learned counsel further submits that the petitioner was neither a student of University of Balochistan, nor did he take any examination held by the said University. He maintains that his political rivals had maneuvered to get the aforenoted degree issued and thereafter managed the proceedings before the Examination Committee, which came to the conclusion that the degree had been issued on the basis of "impersonation". He, therefore, submits that the impugned judgment of the learned Tribunal of this court is not sustainable and based on wrong appreciation of facts, circumstances and the law relevant to the case of the petitioner.

4. The learned counsel for the respondents in the first place brought to our notice the fact that the petitioner is in default of utility expenses in the shape of water charges. Representative of Water and Sanitation Agency (WASA), L.D.A. has appeared before us and presented a bill in the sum of Rs.699,520/- relating to property No.36, Zafar Ali Road, Gulberg-5. Lahore. The petitioner is a part owner of that property and according to the nomination form allegedly submitted by the petitioner to the Returning Officer, Bhakkar in 2002, he had not only claimed part ownership of the property but also stated that he was personally residing in the said property. It is, therefore, submitted that the petitioner is in default of utility expenses and is therefore hit by the provisions of Article 63(1)(o) of the Constitution of Islamic Republic of Pakistan, 1973.

5. The learned counsel for the petitioner has made an effort to explain away the situation by stating that in the first place the petitioner is not residing in the property in question and secondly, he is only a part owner to the extent of 11/50 share of the said property. Therefore, he cannot be saddled with the liability of payment of the utility expenses in the shape of water charges.

6. We have heard learned counsel for the parties and gone through the record.

7. Without going into the question of the educational testimonials of the petitioner, at this stage, as enough material has been placed before us to show that the petitioner is in default of payment of utility expenses. It is an admitted fact that the petitioner is part owner of property No.36 situated at Zafar Ali Road, Gulberg-5, Lahore. His outstanding utility bill of water charges in the sum of Rs.699,520/- remained unpaid till 3-4-2013, after the nomination paper of the petitioner were filed.

8. Article 63(1)(o) states as follows:-- "he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers;" The disqualification in the above Article envisages a default in payment of government dues and utility expenses for over a period of six months at the time of filing of nomination papers. The above disqualification, therefore, crystallizes when the default subsists till the time of filing of the nomination papers. The said disqualification, however, stands cured if the default is removed by making payment of government dues or utility expenses before it crystallizes i.e. before the filing of the nomination papers and not otherwise. Therefore, the payment of government dues and utility expenses after the filing of the nomination papers does not cure the disqualification under Article 63(1)(o) of the Constitution of Islamic Republic of Pakistan, 1973.

9. It is noticed that section 14(3A) of Representation of the People Act, 1976 provides that disqualification under Article 63(1)(o) is not attracted if the government dues and utility expenses are paid before the rejection of the nomination papers. This sub-constitutional provision is inconsistent with the provisions of Article 63(1)(o) of the Constitution of Islamic Republic of Pakistan, 1973 and, therefore, cannot be relied upon to advance the case of the petitioner. The disqualification under Article 63(1)(o) is crystallized when the default subsists at the time of filing of the nomination papers. Therefore, the constitutional disqualification cannot be improved upon or altered through sub-constitutional provision of section 14(3A) of Representation of the People Act, 1976.

10. The learned counsel for the petitioner submitted that he came to know about the afore-noted outstanding liability of WASA for the first time at the time of scrutiny of nomination paper. As soon as he came to know he immediately cleared the dues.

11. We are unable to agree with the stance taken by the learned counsel for the petitioner. We have been informed that the said dues are payable since 1985. In case the petitioner was unaware of the same, the responsibility falls on the petitioner, who is admittedly a part owner of the property and should have been more vigilant in clearance of utility expenses.

12. For the reasons recorded above, we do not find any merit in these petitions. The same are accordingly dismissed. MWA/H-7/L Petitions dismissed.