C.P No. D – 3628 of 2015

Date	Order with signature of Judge

1. For Katcha Peshi.

2. For hearing of C.M.A No. 10183/2015.

15-10-2015

Mr. Nisar Ahmed Bhanbhro, advocate for the petitioner.

Mr. T. David Lawrance, learned Amicus Currie.

Mr. Liaquat Ali Shar, learned Additional Advocate General a/w Hidayatullah Memon, Returning Officer Town Committee Hingorja/ Assistant Commissioner, Sobhodero.

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

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Through instant petition, the petitioner has impugned the order dated 13.09.2015 passed by the Returning Officer, Town Committee Hingorja/Assistant Commissioner Sobhodero (respondent No.1), whereby the nomination form of the petitioner has been dismissed on the ground that the petitioner is defaulter of SEPCO Electricity dues.

2. Learned counsel for the petitioner submits that the petitioner is neither the defaulter of electricity dues of SEPCO Authorities nor the impugned order was ever communicated to the petitioner, who was earlier informed that his nomination has been accepted. Per learned counsel, on 18.09.2015, when he approached the Returning Officer to verify the list of validly nominated candidates (Form No.VII), it was learnt that his name was not mentioned in the list, therefore, he approached the learned Returning Officer, who informed him that his nomination has been cancelled on account of default in payment of SEPCO Electricity dues. Learned counsel for the petitioner submits that the petitioner immediately moved an application for supplying certified copy of his nomination form and the order thereon however, the same was not supplied to him in time, therefore, the petitioner could not file the appeal within specified time which expired on 22.09.2015. Per learned counsel, since there is no other remedy, therefore, the petitioner has approached this court for seeking redressal of his grievance as the petitioner has been deprived his right of franchise by the Returning Officer without any lawful justification.

3. Notices of instant petition were issued to respondents, pursuant to which, respondent No.1 Returning Officer Town Committee Hingorja has shown appearance and filed his comments along with annexures. Whereas, Mr. T. David Lawrence has volunteered his services to assist the court on the issue to maintainability of instant petition and the controversy relating to default in payment of utility bills.

4. Mr. Liaquat Ali Shar, learned Additional Advocate General has raised objection with regard to maintainability of instant petition on the ground that instead of availing the remedy provided by way of filing an appeal against the order passed by the Returning Officer, the petitioner has approached this court directly under Article 199 of the Constitution of Islamic Republic of Pakistan, which will render the appellate forum as redundant and will increase the burden of this court. Mr. T. David Lawrence has also supported such objection regarding maintainability of the instant petition and submits that a party cannot be allowed to abandone the remedy as provided in the statue without any lawful and reasonable justification. As regards the default in payment of SEPCO Electricity charges, the learned counsel for the petitioner has referred to a decision of Hon’ble Supreme Court in the case of Rana Muhammad Arshad v/s Additional Commissioner Revenue, Multan and others reported as 1998 SCMR 1462, wherein according to the learned counsel even at the stage of leave granting appeal late proceedings before the Hon’ble Supreme Court, a candidate was given an opportunity to make payment of outstanding amount towards bank dues/loan, hence, submits that if the petitioner has now paid amount of electricity dues, his default can be ignored as the defect, if any, will stand cured even at this stage while hearing instant petition.

5. We have heard the arguments of learned counsel for parties, learned A.A.G and learned D.A.G, as well as Mr. T. David Lawrence and perused the record with their assistance and also examined the relevant rules.

6. Form perusal of record, it appears that nomination form of the petitioner is otherwise found to be complete in all respects as there is no other objection raised by the Returning Officer. However, his nomination has been rejected on the sole ground of default in payment of electricity bill. The Returning Officer present in court has brought the entire record, which reflects that electricity bill for the month of September, 2015, has been issued in the name of Muhammad Ramzan Solangi, who is father of the petitioner, whereas, an amount of Rs.15,631/- has been shown as arrears in respect of bill for the month of August, 2015, and the due date for payment of current bill was 21.09.2015. The petitioner has produced the original paid bill for the month of September, 2015, which was paid on 17.09.2015 i.e. before the due date given in the aforesaid bill. Whereas, learned counsel for the petitioner submits that even such bill does not pertain to the petitioner as he is residing with his father in his house who is not dependent upon the petitioner. It has further been stated that in terms of Article 63(4) of the Constitution of Pakistan read with Section 99(t) of the Representation of People Act, 1976, and Section 36(j) of Sindh Local Government Act, 2013, the nomination paper of a candidate can be rejected only if he is defaulter in payment of utility charges for a period of over six months, whereas in the instant case, there is no default over a period of six months. Returning Officer was also enquired as to whether the name of petitioner was mentioned in the list affixed in respect of candidates whose nomination forms were rejected, in response, he has candidly stated that on the list affixed showing the name of the candidates whose forms were rejected it could not be mentioned due to inadvertence that such list has been issued in respect of candidates whose nomination has been rejected.

7. In view of hereinabove facts and circumstances of this case, we are of the opinion that there was some confusions created on the part of the Returning Officer, which provided the petitioner a valid ground for approaching this court directly under Article 199 of the Constitution of Islamic Republic of Pakistan, as it appears that he was prevented by sufficient cause from filing an appeal before the appellate authority within the specified time. Moreover, the objection by the Returning Officer regarding default on the part of the petitioner in respect of electricity charges is also misconceived in fact as well as law as admittedly the default is not above the period of six months and the bill is admittedly in the name of petitioner’s father who is not dependent upon the petitioner, whereas, such fact has not been disputed by the respondents, learned A.A.G and Returning Officer.

8. Keeping in view the above facts and circumstances of the case, we are inclined to entertain this petition and set-aside the impugned order passed by the Returning Officer, who is directed to issue VII in respect of petitioner in accordance with law.

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

Judge

Abdul Salam/P.A