2001 PLP 944 (YLR)

Considering the facts stated in the petition and in view of the dictum laid down in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer (1994 SCMR 1299), office objection is overruled.

2. Through this petition jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, has been invoked to challenge the order, dated 9-5-2001 passed by the District Returning Officer/Appellate Authority Sanghar, in Election Appeal ~No.59 of 2001 (Noor Mohammad Shah v. Returning Officer Khipro and another), whereby he allowed the appeal and rejected the nomination form of the petitioner No.1, on the ground that the petitioner No.1 was a defaulter in payment of dues of Town Committee Mehrano Taluka Mithi District Tharparkar, and thus, his case was covered by section 140) of the Sindh Local Government Elections Ordinance, 2000. (Hereinafter referred to as the Ordinance of 2000). Mr. Hidayatullah A. Abbasi, learned counsel for the petitioner contended that the Returning Officer of U.C. 47, Taluka Khipro, District Sanghar, had rightly accepted the nomination form of the petitioners but the District Returning Officer/Appellate Authority, on appeal preferred by the respondent No. 1, unlawfully rejected the same. Referring to section 140) of the Ordinance of 2000, learned counsel contended that use of words 'adjudged and wilful' before the word defaulter in this provision of law clearly signifies the intention of law makers that mere default or mere outstanding dues were not sufficient to disqualify a candidate from contesting election. Referring to the facts of the case learned counsel contended that three-fold objections were raised by respondent No.1 before the respondent No.8, for seeking disqualification of petitioner No. 1 but the first two objections, relating to the alleged default in payment of dues of Town Committee Naukot District Mirpurkhas and dues of Sindh Small Industries were decided in favour of the petitioner No.1 and only on the third objection relating to default in payment of Rs.1,56,323 of Union Council Mehrano Taluka Mithi District Tharparker, nomination form of petitioner No.1 was rejected. Dilating upon this aspect, learned counsel contended that the petitioner No.1 had produced before the respondent No.8, his affidavit, dated 28-4-2001, which was also endorsed by the Administrator Union Council Mehrano, giving his consent for acceptance of such statement, whereby the payment of outstanding dues of Union Council Mehrano, against the petitioner No.1 was re-scheduled, and on the same day some payments were also made vide two receipts, dated 28-4-2001. Learned counsel further referred to the Clearance Certificate, dated 10-5-2001, to show that despite re-scheduling of such outstanding dues, full payment of such amount has already been made by the petitioner No.1 on 10-5-2001 and thus, the petitioner No.1 is no more a defaulter within the meaning of section 140) of the Ordinance of 2000. Learned counsel lastly referred to the definition of word 'Adjudged' given in various Law Dictionaries and contended that as the word 'Adjudged' has not been defined in the Ordinance of 2000, therefore, Ordinary meanings of word 'Adjudged' given in the Dictionaries, wherein word 'Adjudged' has been denied as determination or settlement by some judicial proceedings, are to be accepted for proper interpretation of section 140) of the Ordinance of 2000, while to the instant case there is no such adjudication against the petitioner No.

1. Mr. Masood A. Noorani, the learned Additional Advocate-General Sindh, submitted that in view of the fact that the dues of U.C. Mehrano were re-scheduled on 28-4-2001 and full payment of such dues has already been made by the petitioner No. 1 on 10-5-2001, he is not supporting the impugned order and has no objection if the impugned order is set aside and the nomination form of the petitioner No.1 is accepted. Mr. Muhammad Yousuf Leghari, learned counsel for respondent No.1 referring to the Judgment passed in F.C. Suit No.49 of 1.998, contended that through this suit the plaintiff had challenged the claim of Municipal Committee Tando Allahyar, but such suit was dismissed vide judgment, dated 11-10-2000, which in other words mean that the amount challenged by the petitioner No.1 in the said suit is due against him and for this reason the petitioner is disqualified from contesting the election. Referring to the claim of Small Business Finance Corporation, learned counsel further contended that the petitioner No.1 alongwith his statement, dated 21-5-2001, has himself produced before this Court a Certificate, dated 19-5-2001, which shows that loan of Small Business Finance Corporation was outstanding against the son of petitioner No.1 which has been paid later on and on the basis of such payment, Certificate of payment has been issued by Small Business Finance Corporation. He, therefore, contended that on the crucial date viz. 3-5-2001, petitioner was defaulter and thus, disqualified under section 140) of the Ordinance of 2000 from contesting the election. Mr. Raja Khan, learned counsel for respondent No.3, adopted the arguments of Mr. Muhammad Yousuf Leghari and with reference to the letter, dated 4-5-2001 issued by the Administrator Town Committee Naukot addressed to respondent No.8, further contended that through a decision of Arbitrator, dated 8-6-2000, sum of Rs.14,15,365 is outstanding against the petitioner No.1 and thus, he is disqualified from contesting the election. In reply to the submissions made by the learned counsel for respondents Nos. 1 and 3, Mr. Hidayatullah A. Abbasi referred the impugned order of the respondent No.8, wherein it was observed that since the litigation about such rival claim of petitioner No.1 and Town Committee Naukot was pending and decision in Suit No.35 of 1997 is in favour of petitioner No. 1, therefore, the petitioner No.1 cannot be treated as defaulter for any such dues. Referring the dues of Sindh Small Industries, Mr. Abbasi contended that the petitioner was not a defaulter but he was only guarantor of burrower Muhammad Ayoob who was not the son of petitioner No.1 but of some other Muhammad Yakoob Khan. We have carefully considered the arguments advanced by the learned counsel and with their assistance perused the material placed before us. The observations of the District Returning Officer with reference to the claim of dues of Town Committee Naukot are based on the copies of various documents of F.C. Suit No.35 of 1997 and First Appeal No. 15 of 1998 pending before this Court, thus, such observations of the respondent No.8 that at this stage there is no final adjudication from any forum showing the petitioner No.1 as defaulter of Town Committee Naukot are fully justified. The view taken by the respondent No.8 as regard to the alleged dues of Sindh Small Industries, that the petitioner No.1 was simply a guarantor and not the borrower thus, not disqualified has also much force and, therefore, the arguments of the learned counsel for respondents Nos. l and 3 contrary to this cannot be accepted. As regard to the third objection of the respondent No.1 with reference to the dues of Union Council Mehrano which found favour of respondent No.8, and resulted in rejection of nomination form of petitioner No.

1. It may be observed that the petitioner No.1 in his affidavit, dated 28-4-2001, clearly admitted that towards octroi tax contract for the year 1996-1997, he was defaulter in the payment of Rs.1,56,323 of the Union Council Mehrano Taluka Mithi, District Tharparkar. In his affidavit the petitioner further admitted that from the above outstanding amount, on 27-11-2000 he paid Rs.2,000 arid thereafter on 28-4-2001 he further paid Rs.24,323 and a sum of Rs.1,30,000 was outstanding against him at the time of execution of this affidavit. Perusal of record further reveals that out of remaining Rs.1,30,000, Rs.3,000 were further paid by the petitioner No.1 on 28-4-2001. Thus, according to petitioner No. 1's own admission a sum of Rs.1,27,000 was outstanding against him on the crucial date of determination of qualification of disqualification or a candidate viz. 3-5-2001. The Clearance Certificate, dated 10-5-2001 tiled by the petitioner No.1 before this Court further confirms this position that on the relevant date when the qualification of the candidates was to be judged as per section 14 of the Ordinance of 2000, the petitioner No.1 was a defaulter in the payment of dues of U.C. Mehrano which pertained to the year 1996-97. In this connection it will also be pertinent to mention that the question of adjudging a person as defaulter could only arise when such default was disputed by a party and not otherwise, while in the instant case perusal of contents of the affidavit of petitioner No. 1, dated 28-4-2001 and receipts filed by him go to show that petitioner No.1 unambiguously admitted himself a defaulter in payment of dues of Union Council Mehrano for the year 1996-97 and also about the non-payment of at least Rs.1,27,000 uptill the last date of scrutiny of nomination forms. There is nothing on .record to show that such non payment of dues by the petitioner No.1 was not wilful. Even there is no assertion from the side of petitioner No.1 that such non payment or default was not wilful. Rather in view of the facts and circumstances discussed above it will not be unfair to observe that the petitioner No.1 had the means to pay the dues but not the intention, however, rejection of his nomination form compelled him for such clearance of dues, which at this stage is of no help to his case. Faced with the above factual position which emerges from the documents executed by the petitioner No.1 himself it is clear that the petitioner No.1 was defaulter within the meaning of section 14(j) of the Ordinance of 2000, and respondent No.8 rightly rejected his nomination form. For the foregoing reasons this petition is dismissed in limine. The listed application, which has become infructuous, is also dismissed. Q.M.H./M.A.K./M-203/K Petition dismissed.