Yar Gull Khan Vs Returning Officer PP-138 etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

E.A. No.697 of 2024 Yaar Gul Khan Versus Returning Officer, PP-138, Sheikhupura and others Sr. No. of order/ Date of order/ Order with signature of Judge, and that of parties of counsel, where proceeding Proceeding necessary

09.1.2024 Mr. Arshad Jahangir Jhoja, Advocate for the appellant. Muhammad Bilal Munir, Legal Advisor FBR with Abdul Rasheed Khan, Asst. Commissioner Inland Revenue, Zone-III, Lahore and Muhammad Ijaz, Returning Officer, PP-138, Sheikhupura-III for the respondents.

Through the instant appeal order dated 30.12.2023 of the Returning Officer has been assailed whereby nomination papers of the appellant presenting himself as a candidate for General Elections from PP-138, Sheikhupura-III were rejected.

2.The reasons for rejection as encapsulated by the order of the Returning Officer available at page 25 of the instant file reveals that two instances of default were identified prompting rejection of nomination papers. It transpired that a sum of Rs.6,688,750/- was outstanding towards FBR and an amount of Rs.476,448/- stood under the head of arrears of token tax for vehicles in the record of the Excise and Taxation Department, Government of Punjab. At the hearing of this appeal on three preceding dates i.e. 05.1.2024, 07.1.2024 and 08.1.2024 stance taken by the learned counsel, Mr. Arshad Jahangir Jhoja, Advocate as well as the senior learned counsel who appeared on 05.1.2024, Mr. Jahangir A. Jhoja, Advocate, on behalf of the appellant at the time of issuance of notice was that the outstanding

dues of the Excise and Taxation Department had been paid. Corresponding receipts were placed on the file and that as to the purported liability outstanding in terms of the FBR unpaid dues reliance was placed on order dated 12.4.2019 of the Commissioner Inland Revenue (Appeals-III), Lahore in appellant’s appeal No.11724 to take the stance that the entire liability recorded in the order of the Returning Officer to the tune of Rs.6,688,750/- was embodied in the assessment order which was subject matter of the said appeal that was set aside as such did not present an instance of active outstanding liability attracting such opprobrium.

3.On the input of the learned Legal Advisor Election Commission of Pakistan who said that as information qua default was obtained from the respective government departments upon request of the Election Commission of Pakistan to record any instance of default qua the candidates and, therefore, the respective representatives of the departments shall be in a better position as custodians of record to respond as to whether the stance taken before the Tribunal that default was cleared was factually accurate.

4.Notice was accordingly issued on 07.1.2024 to respondent Nos.2 and 3, the two respective heads of the department, namely, Chairman FBR and Secretary Excise & Taxation Department, Government of Punjab. Learned Law Officer of the Excise and Taxation Department under the instructions from the Deputy Director, Excise and Taxation Department yesterday affirmed the factum of discharge of the arrears of Motor Vehicle Tax outstanding against the appellant and

recorded the statement that nothing was due from the appellant under the head of Motor Vehicle Tax after payment of arrears evidenced by the receipts of dues that may be placed on record copies whereof were duly supplied to the Returning Officer present throughout in these proceedings before the Tribunal in response to notice dated 05.1.2024.

5.Learned Legal Advisor FBR, however, under instructions from the departmental representative submitted that by virtue of order dated 23.8.2023 of the Commissioner (Appeals-VII) Inland Revenue, Lahore the liability of Rs.466,250/- was confirmed against the appellant which pertains to tax period 01.7.2016 to 30.6.2017 and had been outstanding for more than six months against the appellant that remained unpaid, therefore, would count as default. Learned counsel for the appellant expressed surprise at the passing of the said order by taking the stance that he was not aware that such an order has been made and also attempted to submit that in any case stay application had been filed which was pending. The stay application which was filed in the proceeding before the Commissioner (Appeals-VII) Inland Revenue, Lahore obviously could only cover the period till the adjudication by the said officer which resulted in affirmation of liability vide order dated 23.8.2023 as such was rendered infructuous and could not be of any use to appellant.

6.Perusal of the impugned order however shows that an amount of Rs.6,688,750/- is mentioned and the amount of Rs.466,250/- does not find mention in the order of the Returning Officer. This amount, as such,

appears to have been sprung as a surprise on the appellant. Yesterday, the appellant’s learned counsel at the very moment of being confronted with the information that such an amount was outstanding submitted that the appellant is a law abiding citizen and that such a default may not result in recording of any attitude of contumacious or willful default. He submitted that without prejudice to the rights of the appellant to avail any statutory remedy that may be available under the applicable law to the appellant, if some indulgence is shown by this Tribunal, in the interest of justice and fairness, since inalienable fundamental rights of the appellant under Article 17(2) of the Islamic Republic of Pakistan, 1973 are involved; he shall duly deposit the amount stated to be reflected in the record of the FBR as outstanding against him under protest. The statement on the part of the appellant was deemed to be reasonable and an opportunity to pay off the outstanding liability till the resumption of the Court qua hearing of the appeal on the next date was observed.

7.When the case is called today at the appointed hour learned counsel for the appellant has entered his statement that the liability has been duly paid off subject to all just and legal exceptions. This factum has been affirmed by the learned Legal Advisor FBR who submits that computerized payment receipts for the said amount have been duly issued and, as such, the default stands cured. At this point learned counsel for the FBR has also entered the stance that the amount subject-matter of remand order shall remain subject to final adjudication in the course of exercise of statutory authority within the

hierarchy of jurisdiction in accordance with law and that the expression of non-existence of any present liability shall be limited for the purposes of decision of this appeal by the Tribunal. This may be taken to be so as the liabilities of FBR are not direct subject-matter of these proceedings as such the rights of the both sides are safeguarded to have the underlying controversy thrashed out by concerned statutory fora in accordance with law.

8.As two instances of default which informed the decision of the Returning Officer resulting in rejection of the nomination papers have been adequately addressed, the order of the Returning Officer loses efficacy and is therefore set aside. In consequence the nomination papers of the appellant stand accepted. The Returning Officer is directed to reflect the name of the appellant in the revised list of validly nominated candidates for the said constituency in discharge of the mandate of section 64(3) of the Elections Act, 2017.

9.Appeal accepted.

(RASAAL HASAN SYED)

JUDGE

APPROVED FOR REPORTING

JUDGE

*Rabbani*