Sh. ABDUL ASHFAQ Versus ELECTION TRIBUNAL and 3 others

MAULVI ANWAR-UL-HAQ, J .---This I.C.A. proceeds against the judgment dated 26-3-2003 passed by a learned Single Judge in Chamber of this Court, whereby Writ Petition No.41 of 2003 filed by the appellant has been dismissed. The appellant along with respondent No.4 on the one hand and respondents Nos.2 and 3 on the other contested election to the seats of Nazim and Naib Nazim of Union Council 219 Faisalabad. The appellant and respondent No.4 were declared elected as Nazim and Naib Nazim respectively. On 6-7-2001 respondents Nos.2 and 3 filed an election petition alleging, inter alia, that the appellant on the nomination day was wilful defaulter of Rs.65 lacs on account of Hammad Enterprises Faisalabad, which amount was due to United Bank Limited, Main Branch Circular Road, Faisalabad. The appellant in his written statement proceeded to deny that he is a wilful defaulter in the manner stated. The learned Election Tribunal, Faisalabad, vide judgment dated 2-12-2002 held the appellant to be a defaulter and proceeded to declare the election of the appellant and the respondent No.4 to be void and ordered fresh election. We may note here that against this judgment Writ Petition No.41 of 2003 was brought by the appellant while Writ Petition No.21458 of 2002 was brought by respondent No.4. Respondents Nos.2 and 3 also filed Writ Petition No. 1784 of 2003 seeking a relief that they be declared elected. Vide the impugned judgment the learned Single Judge dismissed the writ petition filed by the appellant as well as respondents Nos.2 and 3 but allowed the writ petition filed by respondent No.4.

2. Learned counsel for the appellant contends that according to evidence on record the loan was taken by a company, registered under Companies Act, 1913, while the appellant was a Director and as such the default committed by the company that is a separate entity cannot be attributed to the appellant. He has further argued that after amendment of section 14 of Ordinance V of 2000, vide section 4 of the Punjab Local Government Election (Amendment) Ordinance, 2001, the Election Tribunal was left with no jurisdiction to take cognizance of contravention of any provision of section 14(1) and only the learned Chief Election Commissioner could have passed an order in this behalf. Learned counsel for contesting respondents Nos.2 and 3, on the other hand, contends that the loan was taken directly by the appellant who is sole proprietor. Further contends that the said amendment in section 14 of the said Ordinance would not affect the jurisdiction of the learned Election Tribunal.

3. We have gone through the record of the writ petition with the assistance of the learned counsel for the parties. We find that M/s. Hammad International in fact is a sole proprietorship and proprietor is the appellant. The learned counsel has admitted this fact when we confronted with the several documents .on record including Exh.A/1, Exh.A/11, Exh.A16/2 and Exh.R/1. This fact is also evident from the copy of the judgment of learned Banking Court-I Faisalabad, appended with this appeal. The appellant himself is present in Court and when asked he admitted to be sole owner of the said proprietorship. Nothing, therefore, turns on the said first contention of the learned counsel. So far as the said second contention is concerned, we have given some thought to the same. The Chief Executive of the country found it expedient to provide for conduct of Local Government Election by the Chief Election Commissioner and promulgated Local Government Election Order, 2000. Under Para. 2 of the said order the Chief Election Commissioner was empowered to conduct Local Government Elections for the Provinces and for the said purposes he was expressly empowered and authorized to take all such steps and measures, do such acts, pass such orders, issue such directions and take all such ancillary, incidental and consequential steps as he may deem necessary for effectively carrying out the said elections. This order was promulgated on 30-9-2000. On 5-10-2000 the Governor of Punjab, under the instructions of the Chief Executive of Pakistan with reference to the said Order VIII of 2000 promulgated the Punjab Local Government Elections Ordinance, 2000. On 19-10-2000, in exercise of powers under section 38 of the said Ordinance V of 2000, the Governor made the Punjab Local Government Elections Rules; 2000.

4. To our mind upon a reading of all the three legislative instruments altogether, it can be safely assumed that the learned Chief Election Commissioner of Pakistan stood invested with all powers and authorized in the matter of said elections and also the matters ancillary and consequential thereto. Now rule 70(1) provides that no election shall be called in question except by an election petition made by a candidate and to be presented before a Tribunal to be appointed by the Chief Election Commissioner. There is no denial of the fact that the learned Chief Election Commissioner had appointed the Tribunal in terms of rule 73 of the said Rules. Now under rule 80, the Election Tribunal, may after concluding a trial in election petition, make an order, inter alia, declaring election of returned candidate to be void. The grounds for declaring such election to be void are provided in rule 81 and these include the satisfaction of the Tribunal to the effect that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as member or Nazim or Naib Nazim as the case may be. Now section 14(1) of the said Ordinance lays down the qualifications for a candidate and elected member.

5. The amendment being relied upon by .the learned counsel was made on 5th July, 2001 vide section 4 of the Punjab Local Government Elections (Amendment) Ordinance, 2001, whereby, the following subsection (2) was added to section 14:--

"(2) Whoever:--

(a) is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall stand disqualified from being a candidate for election to a Local Government for a period of four years; or

(b) having been elected as a member of Local Government or being a holder of an elected office of Local Government is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall cease forthwith to be an elected member or to hold the office of such member and stand disqualified from being a candidate for election to a Local Government for a period of four years. "

Now reading of the said subsection (2) of section 14 of the Ordinance V of 2000 with the Rules already referred to by us above the legislative intent does not at all appear to be derogatory from the powers vesting m the Election Tribunal who in its turn stands appointed by the Chief Election Commissioner, on the other hand, it appears that by virtue of the said provisions the learned Chief Election Commissioner can also take cognizance of the contravention of the provisions of section 14(1) of Ordinance V of 2000. No corresponding amendment was made in Chapter-X of the said Rules of 2000 and the entire Chapter was kept intact. We, therefore, do find that the learned Election Tribunal could have proceeded with the election petition and to have declared the election of the appellant to be void upon being satisfied of the said existence of the said ground. The I.C.A. is accordingly dismissed without any order as to costs.

M.I./A-284/L Appeal dismissed.