ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-725 of 2022.

Before:

Mr. Justice Adnan-ul-Karim Memon,

Mr. Justice Abdul Mobeen Lakho,

Petitioner : Ghulam Hussain Junejo.

Respondents : Returning Officer & others.

Mr. Imtiaz Ali Mugheri, advocate for the petitioner.

Mr. Abdul Hamid Bhurgri, Addl. Advocate General.

Mr. Mohammad Imran Abbasi, Asst. Attorney General, along with Zeeshan Hyder Qureshi, Law Officer, Election Commission of Pakistan.

Respondent No.2 present in person.

Date of hearing : 20.07.2022.

Date of order : 20.07.2022.

O R D E R

ADNAN-UL-KARIM MEMON, J.- The petitioner filed his nomination form to contest the upcoming Local Bodies elections 2022 for the seat of General Councilor from UC Boriri, Taluka K.N. Shah, District Dadu, which after scrutiny was accepted by the Returning Officer. Respondent No.2 filed Election Appeal No.58/2022 before the District Judge/District Election Tribunal, Dadu, who vide order dated 25.6.2022 allowed the same and rejected the nomination form of the petitioner, on the ground that the petitioner was/is a defaulter of electricity dues.

2. Mr. Imtiaz Ali Mugheri, learned Counsel for the petitioner, submits that the petitioner is not himself a defaulter of electricity/SEPCO; that the learned District Election Tribunal has erred in rejecting the nomination form of the petitioner on the premise that his father is a defaulter. He further submits that the petitioner cannot be held responsible for the dues, if any, outstanding against his father.

3. Respondent No.2 present in person has refuted the claim of the petitioner on the ground that the petitioner is a defaulter of SEPCO dues and taking a frivolous plea to avoid paying Government dues; besides he has concealed in the nomination papers about the dues of SEPCO, which concealment is sufficient to disqualify him to contest the ensuing election. He prayed for dismissal of the instant petition.

4. We have heard the learned counsel for the parties and perused the material available on record.

4. The learned Election Tribunal has rejected the claim of the petitioner vide order dated 25.6.2022, on the analogy that the petitioner was/is a defaulter of SEPCO dues. An excerpt of the order is reproduced as under:-

“Appellant has submitted copy of letter dated 20.06.2022 issued by the Sub Divisional Officer Operation Sub Division SEPCO K.N Shah to the Returning Officer Union Council Burira, Taluka K.N Shah in which an amount of Rs.234,402/- is shown as outstanding against the respondent No.2.. The copy of electricity bill submitted by the appellant also shows that said connection is installed in the name of respondent No.2. The Respondent has failed to deny the same and expressed his unwillingness to clear the dues. As per record, the respondent No.2 himself is defaulter of SEPCO. Therefore, the impugned order is hereby set-aside and appeal in hand is allowed. Consequent thereupon, the nomination papers of respondent No.2 accepted by the Returning Officer are hereby rejected.”

5. Primarily, the disqualification of a candidate on account of being a ‘defaulter, such a determination of defaulter can only be made after following due process, which includes the appraisal of evidence, right of hearing, and a reasoned judgment after the proper application of mind. The plea taken by the petitioner that he timely moved an application to the competent authority in the year 2004 about the disconnection of his electricity dues on the analogy that he did not need the electricity connection, such applications dated 16.7.2004 and 10.8.2004 have been placed on record by the petitioner, such assertion could not be agitated in constitution petition, as this court is not in a position to look into the allegations and counter-allegation in an election matter, in terms of section 60 of Election Act,2017, which is also covered by Article 63 of the Constitution. Besides, there can be no cavil with the proposition that the declarations, prohibitions, directions, or requisitions in contemplation of Article 199(1) of the Constitution are essentially discretionary, for that the proper forum is the Election Tribunal, where all questions of alleged default of electricity dues could be attended to, if approached by the aggrieved party after the pre-election process is over.

6. We have also carefully examined the provisions of Rule 18(3) of Sindh Local Councils (Elections), Rules, 2015 concerning the second proviso, which requires Returning Officer to allow the candidate to remove the defect which is not substantial. In the instant cases, the petitioner has been disallowed to contest the election, as discussed supra, on the ground of non-payment of SEPCO dues, without offering him to cure the defect if any in time, in terms of Rule 18(3) of Sindh Local Councils (Elections), Rules, 2015. However, we are cognizant of the fact that such a defect at this stage cannot be cured and we leave it to the party to raise such a plea before the Election Tribunal if the petitioner at all goes through the election process for the subject seat.

7. Keeping in view the above factual proposition as well as the legal position of the case, we are of the considered view that all the questions raised by the SEPCO could be attended to by the learned Election Tribunal by recording evidence, if approached after the pre-election process. Accordingly, the impugned order is set-aside, subject to the above terms. Returning Officer is directed to accept the nomination of the petitioner provisionally for the reasons discussed supra.

J U D G E