ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-687 of 2022.

Before:

Mr. Justice Adnan-ul-Karim Memon,

Mr. Justice Abdul Mobeen Lakho,

Petitioner : Liaquat Ali Kamangar,

Respondents : Returning Officer & others.

Mr. Sajid Ali Gorar, 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.

Mr. Athar Abbas Solangi, advocate for intervenor Sher Mohammad Chandio.

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 District Council Member from UC Qazi Arif, Taluka Mehar, District Dadu, which after scrutiny was rejected by the Returning Officer, on the ground that the petitioner is a defaulter of SEPCO & ZTBL. He filed Election Appeal No.243/2022 before the District Judge/District Election Tribunal, Dadu, who vide order dated 23.6.2022 dismissed the appeal.

2. Mr. Sajid Ali Gorar, learned Counsel for the petitioner, submits that the petitioner is not a defaulter of SEPCO, but in fact, it was his father, against whom some dues of the SEPCO towards electricity consumption were outstanding, therefore, per learned counsel, the petitioner cannot be held responsible for such dues.

3. On the other hand, Mr. Athar Abbas Solangi, learned Counsel appearing for intervenor Sher Mohammad Chandio, contends that the petitioner by way of inheritance is occupying and residing in the house, against which dues of SEPCO in respect of electricity consumption are outstanding, therefore, after the death of his father, the petitioner is responsible to repay the dues and his nomination form has rightly been rejected by the Returning Officer, as also the appeal

4. The learned Asst. Attorney General as well as the learned Addl. A.G., do not support the impugned order and have recorded their no objection if the petition is allowed and the nomination form of the petitioner is restored.

5. We have heard learned Counsel for the parties and have perused the material available on record.

6. The learned Election Tribunal has rejected the claim of the petitioner vide order dated 23.6.2022, on the analogy that the petitioner was/is a defaulter of SEPCO dues. An excerpt of the order is reproduced as under:-

The Returning Officer pointed out that the Appellant himself is a defaulter of ZTBL as an amount of Rs.49, 000/- is outstanding against him. He further stated that electricity dues of Rs.1, 97,000/- are also outstanding against the Appellant.

Learned counsel for the appellant submitted that electricity dues are against the father of the appellant. The appellant stated that his father has died.

Section 3 (Ixv) of the Sindh Local Government Act, 2013 is reproduced as under:

“(Ixv) “relative” means and includes parents, guardians, children, adopted children, brothers, and sisters.”

This definition includes the father, hence the appellant is to be treated as a defaulter of SEPCO. Even otherwise appellant himself is admittedly a defaulter of ZTBL. The appellant was asked to make payment within two days but his advocate submitted that he may be allowed to clear dues in installments. Order of payment through installments is out of the scope of this Tribunal. Hence impugned order warrants no interference and the same is maintained. Consequent thereupon, this appeal is dismissed.”

7. 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. In principle, this court is not in a position to look into the allegations and counter-allegations in election matter, in terms of section 60 of the 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, if approached by the aggrieved party after the pre-election process is over.

8. 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 against his late father, 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 if any 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.

9. 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. Returning Officer is directed to accept the nomination of the petitioner for the reasons discussed supra.

J U D G E