ORDER SHEET

IN THE ELECTION APPELLATE TRIBUNAL,

HIGH COURT OF SINDH AT KARACHI

Election Appeal No.01 of 2012

Date Order with signature of Judge

Present: Mr. Justice Muhammad Ali Mazhar

Mr. Justice Nisar Muhammad Shaikh

Date of hearing : 14.02.2012.

Appellant : Mir Mushtaq Ali

Respondents : District Election Commissioner,

Hyderabad and others.

Mr. Naitmatullah Soomro, Advocate for the appellant.

Mr. Ejaz Ali Hakro, Advocate for the respondent No.2 and objector Syed Muhammad Shahnawaz.

Ali Asghar Sayal, District Election Commissioner and Returning Officer PS-53 in attendance.

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Muhammad Ali Mazhar,J.:- The appellant has filed this appeal under Section 14(5) of the Representation of Peoples Act, 1976 read with Rule 5 of the Representation of the People (Conduct of Elections) Rules, 1977.

The brief facts of the case are that the appellant has filed nomination form for constituency PS-53. Tando Muhammad Khan-cum-Hyderabad to fill the seat of late Syed Mohsin Shah Bukhari. The nomination form was in accordance with the requirement of qualification duly proposed and seconded by the electors of the constituency and objections were invited. The objector Syed Muhammad Shahnawaz filed the objections in which it was stated that the appellant has not paid telephone bills amounting to Rs.25825/- and he is also defaulter of electricity charges in the sum of Rs.1,99,530/-. The objector is not a candidate but he is residing in the constituency. Keeping in view his objections, the respondent No.1 rejected the nomination form and passed the order as under:-

“ The objection regarding default of payment of electricity dues was received from Syed Muhammad Shahnawaz Shah against the candidate amounting to Rs.199530/-. The Revenue Officer WAPDA furnished statement of dues against candidate for Rs.628533/-. The candidate was given one hour more after 4:00 p.m. to clear the outstanding electricity dues against him. In the light of the non-submissions of clearance of outstanding electricity dues by the candidate, his nomination paper is rejected u/s 14(3)(c) of Representation of Peoples Act, 1976”.

The learned counsel for the appellant argued that though the liability of electricity dues was not properly calculated by the Revenue Officer and it was based on inflated figure, however, on very same date cheque in the sum of Rs.5,03,047/- was made in the name of R.O. HESCO and appellant went to deposit the same to the R.O. PS-53 but he did not receive the cheque and endorsed a note that he is not the authority to get the cheque in favour of R.O. HESCO. The original cheque is available at page 37 alongwith letter on page 39. The learned counsel further referred to another letter dated 09.02.2012, which was addressed to the Election Tribunal/ R.O.53 on which the District election Commissioner Hyderabad endorsed his note that the Revenue Officer, WAPDA, Tando Muhammad Khan is hereby directed to receive the outstanding dues from the candidate Mir Mushtaq Talpur till 5:00 p.m. The learned counsel for the appellant argued that even in the electricity bill, which is available at page 35, showing the dues in the sum of Rs.5,03,047/- and last date of payment was 17.02.2012. It was further averred that unless the default is committed after lapse of due date, he could not be declared defaulter. However, he is still ready to deposit this amount with the Nazir of this Court in cash today, which may be collected by the concerned utility agency from the Nazir of this Court. So far as the dues of PTCL is concerned, he has also submitted the paid bill which is available as annexure ‘’D’, and shows that the subscriber Mir Mushtaq Ali Talpur paid a bill of Rs.25,825/-, on 09.02.2012, therefore he submitted that the appellant is not defaulter and he is entitled to contest the election.

The objector filed his objections in which it is stated that the appellant submitted a false declaration and he is admittedly a defaulter of the utility charges therefore his nomination was rightly rejected. It is further mentioned in the objections that the representative of PTCL appeared before the respondent No.1 and submitted list showing the outstanding amount of Rs.57729/- of five telephone connections and even after making the payment, still a sum of Rs.31,904/- is outstanding against the appellant for the telephone bills. The learned counsel for the respondent No.2 and objector also raised an oral motion yesterday that the daughters of the appellants are also defaulters of financial institution and since the respondent No.1 was present in the Court, therefore we directed him to collect the relevant information whether the appellant can be considered defaulter of the financial institution or not. Today, he has placed on record the statement of Zarai Taraqiati Bank Limited, Tando Muhammad Khan in which the names of the borrowers are Mst. Bibi Irum and Mst. Bibi Farya, both are the daughters of Mir Mushtaque Ali Talpur and if the total of amount of outstanding loan is calculated, it comes to the tune of Rs.16,86,257/-. On this, the learned counsel for the appellant responded that in clause (c) of subsection (2) of Section 12, declaration is required to be filed by the candidate that no loan for an amount of two million rupees or more obtained from any bank, financial institution, cooperative society, corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date or has got such loan written off. The learned counsel for the appellant argued that first of all Bibi Farya, daughter of Mir Mushtaq Ali Talpur is a married woman, therefore she cannot be treated appellant’s dependent and so far as Bibi Irum, another daughter of Mir Mushtaq Ali Talpur is concerned, the total liability of her loan is not more than 7,74,529/-. He further argued that if the total outstanding liability of both the daughters is accumulated, even then it is less than Rs.20 Lacs, therefore no restriction can be placed on the appellant and he cannot be declared or considered defaulter in terms of Section 12 of the Representation of Peoples Act, 1976. So far as the bills of PTCL are concerned, though with the memo of appeal, a paid bill of Rs.25,825/- is attached with the subscriber name Mir Mushtaq Ali Talpur but in response to the learned counsel for the objector and respondent No.2, the learned counsel for the appellant has also placed copies of five PTCL bills attested by the Revenue Officer, PTCL, Small Exchange, Hyderabad today in Court and argued that in none of the bills, the appellant is shown as subscriber of the said telephone numbers, therefore he submits that he has no liability to pay these bills.

Though we have considered other objections also, which are not part of the order passed by the Returning Officer on 09.02.2012, whereby nomination form was rejected. In fact, the basic objection for rejecting the nomination was the default in the payment of electricity bill. The appellant’s counsel argued and shown us through available record that not only the appellant was making efforts to deposit this amount even before rejection through cheque, original of which is available on record, but according to his information and instructions, his client is still ready to deposit this amount with the Nazir of this Court in cash today. The respondent No.1 has no objection if this amount is deposited in this Court in cash, thereafter he will accept the nomination form in accordance with the law.

The appeal is continuation of original proceeding and since the only objection was against the electricity charges which the appellant is ready to deposit and so far as the plea of loan is concerned, it is below the amount of Rs.20 Lacs and even this objection was not raised before the Returning Officer, therefore this objection is not tenable. Consequently, this appeal is allowed with the direction to the appellant to deposit Rs.6,28,553/- with the Nazir of this Court, which amount may be paid by the Nazir to HESCO through pay order after proper verification. It is, however clarified that if the appellant feels that the amount is inflated or exorbitant then this matter may be taken up by him with HESCO and they may decide the same after proper inquiry what amount is actually liable to be paid against electricity charges by the appellant. The appeal is disposed of accordingly. Respondent No.1 on receiving the receipt for the payment of above amount issued by the Nazir of this Court will revise the list of validly nominated candidates including the appellant.

JUDGE