C.P No. D – 3621 of 2015

Date	Order with signature of Judge

1. For Katcha Peshi.

2. For hearing of C.M.A No. 10177/2015.

27-10-2015

Mr. Ghulam Shabbir Shar, advocate for the petitioners.

Mr. Maqsood Ahmed Khan, advocate for respondent No.3.

Mr. Zulifqar Ali Sangi, learned A.A.G.

Mr. Mian Mumtaz Rabbani, learned D.A.G.

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Through instant petition, the petitioner has impugned the orders passed by the Returning Officer, U.C-15, SMC Sukkur dated 17.09.2015 as well as Appellate Authority dated 30.09.2015, whereby the nomination form of the petitioner No.1 has been dismissed on the ground of default in payment of utility bills including sui gas bill and electric bill issued by SEPCO and Sui Gas Authorities.

2. Learned counsel for the petitioners submits that the petitioners were not defaulter in payment of utility charges and their nomination papers were complete in all respects as per relevant law and rules, however, on the false ground of default in payment of utility charges, the nomination of the petitioners has been cancelled. Per learned counsel, the objections were filed by the respondents before the Returning Officer, wherein it has been alleged that the petitioner Hazoor Bux is defaulter of sui gas charges amounting to Rs. 27,185/- as well as default in respect of electricity charges amounting to Rs. 205,792/-. However, per learned counsel, from perusal of the bills produced by the respondent No.3, it transpires that the bill in respect of SEPCO was neither in the name of the petitioner No.1 nor the petitioner No.1 resides in the same premises. Learned counsel further submits that bill has been issued in the name of one Allah Bux, whereas per chance, the name of father of petitioner No.1 is also Allah Bux, therefore, some confusion has been created by the respondents. It has been further submitted that though the petitioner disputes such bill issued in the name of one Allah Bux, however, the said bill has been paid by the petitioner under protest, so that right of franchise and their participation in the forthcoming election may not be lost to the petitioners. It is further argued that petitioner No.1 has also paid sui gas charges, whereas, said default otherwise, was not beyond the period of six months. Per learned counsel, the petitioners otherwise qualify to contest elections, whereas, whereas, there is no default on the part of the petitioners, the impugned orders may be set-aside and the petitioners may be allowed to contest election, and their nomination may be directed to be accepted by the Returning Officer. In support of contention, learned counsel has placed reliance on the case of Rana Muhammad Arshad v/s Additional Commissioner Revenue, Multan and others reported as 1998 SCMR 1462, as well as a recent order passed by Division Bench of this Court on 21.10.2015 in C.P No. D-3615 of 2015.

3. Conversely, learned counsel for the respondent No.3 submits that the petitioner was defaulter in respect of utility charges on the relevant date prescribed for the purpose of filing of nomination paper or the scrutiny of such nomination papers, therefore, payment of utility charges at a subsequent stage should not be taken into consideration. However, the learned counsel could not controvert the legal position as stated in the aforesaid decision of the Hon’ble Supreme Court of Pakistan, as well as the order passed by Division Bench of this Court regarding payment of utility charges at a subsequent stage.

4. Learned A.A.G and learned D.A.G have referred to provisions of second proviso of Sub rule 3 of Rule 18 of Sindh Local Councils (Elections) Rules, 2015 and submit that the Returning Officer was under legal obligation to provide an opportunity to a candidate to remove the defect including payment of utility charges etc. Whereas, in the instant case, it appears that the petitioner has denied the outstanding arrears in respect of electricity charges, as admittedly the bill produced by respondents is not in the name of the petitioner, whereas, in respect of sui gas bill, it has not been mentioned as to whether such outstanding arrear was for a period of more than six months. Learned A.A.G further submits that since the petitioner has paid disputed bill in respect of SPECO charges and Sui Gas charges and there is no amount outstanding against the petitioner, therefore, the impugned orders of two authorities below may be set-aside by following the decision of the Hon’ble Supreme Court and the Division Bench of this Court as relied upon by the petitioner.

5. We have heard the arguments of learned counsel for parties, perused the record with their assistance and also examined the case law relied upon by the learned counsel for the petitioners.

6. We have also carefully examined the provisions of Rule 18, Sub rule (3) of Sindh Local Councils (Election) Rules, 2015 with reference to second proviso, which requires a Returning Officer to allow the candidates to remove the defects which are not substantial in nature. In the instant case, it appears that only objection on the nomination form of the petitioner No.1 has been raised on the ground of non-payment of sui gas charges and electricity charges. However, the record shows that outstanding amount in respect of sui gas was for the month of June 2015, and the default was not for a period of more than six months, whereas the alleged outstanding amount in respect of electricity has been seriously disputed by petitioner or it has not been issued in the name of petitioner, whereas, no material has been placed on record to show that it has been consumed by petitioner. It has further been stated that his father is also not dependent upon the petitioner No.1 in whose name alleged bill has been issued. The aforesaid bill has also been paid by the petitioner No.1 under protest to avoid cancellation of his nomination.

7. Keeping in view hereinabove facts and circumstances of the case, and by following the case law as relied upon by learned counsel for the petitioners, we are of the view that the petitioners are eligible to contest the election, whereas, prima facie, there is no default in respect of payment of utility charges. Accordingly, the impugned orders dated 17.09.2015 and 30.09.2015, passed by the Returning Officer and Appellate Authority are hereby set-aside, Returning Officer is directed to accept the nomination of the petitioners and do the needful in accordance with law.

8. Instant petition is hereby allowed in the aforesaid terms along with listed application.

Judge

Abdul Salam/P.A