Raja Ahmed Aziz Bhatti vs Returning Officer

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT/APPELLATE TRIBUNAL

RAWALPINDI BENCH, RAWALPINDI.

JUDICIAL DEPARTMENT

Election Appeal No.05 of 2024

Raja Ahmed Aziz Bhatti Versus.

The Returning Officer, etc.

JUDGMENT.

Date of hearing: 04.01.2024.

Appellant by: Ch. Imran Hassan Ali, Advocate.

Respondent No.1 Mr. Zulqarnain Hyder Gondal, Assistant Director by: (Law), Election Commission of Pakistan with Mian Murad Hussain, Returning Officer, PP-09, Rawalpindi-III.

Respondent No.2 Mr. Zahid Iqbal Tanoli, Advocate with Mr. Altaf, by: Senior Law Officer, Rana Waleed, Law Officer, Syed Ahmed Javed, SBO and Kamran, EBO.

M/s Malik Muhammad Siddique Awan, Additional Attorney General for Pakistan and Muhammad Sajid Khan Tanoli, Deputy Attorney General for Pakistan.

Mirza Viqas Rauf, J. This appeal under section 63 of the Elections Act, 2017 (hereinafter referred to as “Act, 2017”) calls in question the vires of order dated 30th December, 2023, whereby the Returning Officer, PP-09, Rawalpindi-III proceeded to reject the nomination papers of the appellant being defaulter of Suit Northern Gas Pipelines Limited (hereinafter referred to as “SNGPL”).

2.I have heard learned counsel for the appellant as well as learned counsel representing the Election Commission of Pakistan and “SNGPL” and perused the record.

3.In order to contest the election, the appellant submitted his nomination papers for the Constituency PP-09, Rawalpindi-III and during the scrutiny, the Returning Officer, on a report from “SNGPL” sent through

Election Appeal No.05 of 2024

letter dated 28th December, 2023 proceeded to held the appellant defaulter of Rs.56,584,620/- and rejected his nomination papers. Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as “Constitution”) provides the qualifications for membership of Majlis-e- Shoora (Parliament) whereas disqualifications have been enumerated in Article 63 of the “Constitution”. In terms of sub-Article (1)(o), a person becomes disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) if 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.

4.The term “default” used in Article 63 of the “Constitution” is though nowhere defined in the “Constitution”, however, in the case of IRFAN GUL MAGSI v. Haji ABDUL KHALIQ SOOMRO and others (1999 PTD 1302), Election Tribunal Sindh outlined the definition of “default” in the following terms: -

11.Expression "default" connotes an element of wilful and deliberate failure to fulfil an obligation and negligence in the performance of the duty Every failure on the part of a person without any ulterior design land mala fide intention would not equate with the expression "default" as used in its strict legal sense. Before a person is declared to be in default, it is absolutely necessary that there should have been a demand to make payment of a determined sum, which should have remained unresponded and unattended for a period beyond the period prescribed by law. Issue of "default" in the context of Rent Laws was set at rest in the famous case reported as Ghulam Muhammad Lundkhor v. Safder Ali (PLD 1967 SC 530). In the words of the apex Court the word "default" in legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance. To establish default one must show that the non-compliance has been due to some avoidable cause, for a person who ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus, unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle also the expression "default' should mean an act done in breach of a duty or in disregard of an order or direction. This view was followed in the subsequent cases reported as Muhammad Hassan Khan v. Mirza Abdul Hamid (1981 SCMR 799), Irshad Hussain v. Abdul Rehman Kazi (1983 SCMR 471), M. Imamuddin v. Surriya Khanum (PLD 1991 SC 317) and NDFC v. Naseemuddin (PLD

1997 SC 564).

Election Appeal No.05 of 2024

After having an overview of the principles laid down hereinabove, it can safely be inferred that the word “default” used in Article 63 of the “Constitution” does not import ordinary meaning rather it connotes an element of willful and deliberate failure to fulfil an obligation and negligence in the performance of the duty.

5.In the case of MUHAMMAD JAMSHED v. ELECTION APPELLATE TRIBUNAL and others (2018 CLC 1330) a learned Division Bench of this Court while dealing with a similar proposition held as under: - “11. Article 63(1)(n) of the Constitution is the relevant provision which stipulates that a person shall be disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) if he has obtained a loan for an amount of two million rupees or more from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off.

12.Article 63 provides for disqualifications for a person aspiring to contest the election to the Parliament and being penal in nature must be strictly construed. The expression "remains unpaid for more than one year from due date" in the context of loan obtained by a person cannot be interpreted to mean that the record provided to State Bank of Pakistan is binding and conclusive on the Returning Officer in the scrutiny proceedings. It remains ipse dixit. The outstanding amount mentioned therein is at best an un-liquidated claim by the financial institution particularly when the candidate disputes the same and the matter is pending adjudication before a court of competent jurisdiction. The scrutiny proceedings of nomination forms before the Returning Officer being summary in nature, findings on disqualification of a candidate merely on the basis of un-liquidated claim of a financial institution ought not to be made. Determination of default in financial obligation of a customer is the sole prerogative of the banking court, which function and power is not available to a Returning Officer in summary proceedings. In cases where judgment and decree has been passed against the candidate by the banking court or any other court of competent jurisdiction, no doubt the matter would fall within the mischief of Article 63(1)(n) of the Constitution.”

6.It is an admitted position on the record that for the recovery of amount in question, respondent No.2 instituted a suit while invoking the provisions of the Gas (Theft Control & Recovery) Act, 2016 wherein leave to contest is granted to the appellant and the suit is still sub-judice before the Court of competent jurisdiction. It is, thus, clear that default, if any, on the part of the appellant is yet to be determined by the Court of competent jurisdiction, which is seized with the matter.

Election Appeal No.05 of 2024

7.In the case of IMRAN AHMAD KHAN NIAZI v. MIAN

MUHAMMAD NAWAZ SHARIF, PRIME MINISTER OF PAKISTAN/

MEMBER NATIONAL ASSEMBLY, PRIME MINISTER’S HOUSE,

ISLAMABAD and 9 others (PLD 2017 Supreme Court 265), the Supreme Court of Pakistan, while pondering upon the matter in issue observed as under: -

“76. Further, even if for the sake of argument, the allegations of tax evasion were to be given any credence, the same would not automatically attract the penal consequences of Article 63(1)(o) of the Constitution. This is in view of the fact that the said Article is attracted only where liability has finally been determined by the competent forum and default has been committed in payment of such determined liability. In the present case, the said prerequisites are missing. As a result, on a mere allegation of tax evasion, it cannot be held that provisions of Article 63(1)(o) of the Constitution are attracted and Respondent No.1 is liable to be disqualified on that score from being a member of the Parliament.”

8.For the foregoing reasons, I am of the considered view that the appellant is not suffering with the disqualifications enumerated in Article 63(1)(o) of the “Constitution” and nomination papers have wrongly been rejected by the Returning Officer. Resultantly, this appeal is allowed. As a result thereof, the nomination papers of the appellant shall stand accepted. Office to transmit copy of this order to the Returning Officer in terms of Rule 54(5) of the Election Rules, 2017 for compliance.

(MIRZA VIQAS RAUF)

JUDGE

APPELLATE TRIBUNAL

Approved for reporting

JUDGE

APPELLATE TRIBUNAL

Zeeshan