' By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has challenged the order dated 16-9-2005 and 20-9-2005 respectively passed by the respondents Nos.1 and 2, which have resulted in rejection of his nomination Form for seat of Nazim, Zila Council, Tharparkar.
2. In nutshell, case of the petitioner is that out of political rivalry and use of State machinery,- and on the basis of forged, manipulated and fraudulent documents, he has been held disqualified to contest the elections, by applying the disqualification, as provided under section 152(1)(i) of the Sindh Local Government Ordinance, 2001 (hereinafter referred to as the Ordinance of 2001).
3. On notice of this petition, in denial of such assertions, counter-affidavit has been filed by respondent No,3, which is accompanied with several documents, to fortify his claim that the declaration of assets made by the petitioner was incorrect as several assets belonging to the petitioner, were not disclosed therein. In the counter-affidavit respondent No,3 has also raised a new ground of commission of wilful default by the petitioner in the payment of Government dues in respect of motor vehicle tax of Vehicle No,R-0788, allegedly owned by the petitioner, for the period 1-7-1999 to 31-12-2005.
4. The petitioner in his affidavit in rejoinder' has once again reiterated his assertions made in the petition and also disowned his ownership of vehicle bearing Registration No,R-0788 (Hyd), and nonpayment of its motor vehicle tax.
5. Mr. Allah Bachayo Soomro, learned counsel for the petitioner while arguing this petition has mainly agitated his grievance with reference to the violation of principles of natural justice.
According to him, no proper opportunity of hearing was afforded to the petitioner before rejection of his nomination form. Making reference to the first impugned order dated 16-9-2005 passed by respondent No,1, he contended that from this order it is, evident that the nomination form of the petitioner was rejected by respondent No,1 on the sole ground that he owned one plot admeasuring 2500 sq.Ft. In Benazir Colony, Mithi Town. In respect of such ground urged by respondent No,3, which has taken the petitioner and his counsel by surprise, petitioner has categorically stated that he neither knows about this plot nor he is in its possession. Referring to the other order dated 20-9-2005 passed by respondent No,2, learned counsel further agitated that the, respondent No,2 while passing this order has taken into consideration certain new grounds for disqualification of the petitioner under section 152(1)(i) of the Ordinance of 2001, as regards his, share in a plot in Shahbaz Town, Deh Jamshoro, Taluka Qasimabad and ownership of Mini Bus bearing Registration No,R-0788, without affording due opportunity of rebuttal/hearing to him.
Though the Mini Bus bearing Registration No,R-0788(Hyd) was already sold by the petitioner in terms of the agreement to sell dated 18-12-2003, while the house at Qasimabad was the same, which was shown at Serial No,1 of the declaration of assets filed by the petitioner.
6. Mr. Allah Bachayo Soomro further contended that in this petition again a new plea has been raised by respondent No,3 for seeking disqualification of the petitioner from contesting the ensuing elections of Local Bodies on the ground that the petitioner is wilful defaulter in the payment of Government dues relating to motor vehicle tax in respect of same Mini Bus. He contended that respondent No,3, having full support of the Government machinery, has manipulated and fabricated all supporting documents for seeking disqualification of the petitioner and in such circumstances, before the petitioner could be disqualified from contesting the elections a reasonable and fair opportunity should have been allowed to him by the respondents Nos.1 and 2 to put up his defence.
7. Mr. Jhamat Jethanand, learned counsel for the respondent No,3 has strongly contended that the plea of the petitioner that he was not afforded full opportunity of hearing before rejection of his nomination form by the respondent No,1 or before rejection of his appeal by respondent No,2 are misconceived. In this regard learned counsel made reference to various documents placed on record by respondent No,3 before respondent No,1 and respondent No,2 as well as before this Court.
He also made reference to the photostat copy of agreement to sell dated 18-12-2003, which was produced by the petitioner himself before the respondent No,2, but was found insufficient to justify his claim that he was not owning the vehicle bearing Registration No,R-0788. Making further reference to the registration sale-deed relating to Plot No,B-47 admeasuring 3600 sq.Ft at Shahbaz Town, Taluka Qasimabad, he urged that ownership of this property to this extent of share of the petitioner was established from this document, but this property was also not disclosed in the declaration of assets, filed by the petitioner before respondent No,1. All these facts, taken together, clearly show that the objections to the nomination Form of the petitioner raised by the respondent No,3 were fully justified and rightly upheld by the respondents Nos.1 and 2.
8. Mr. Masood A. Noorani learned Addl.A.-G., Sindh has fully supported the two impugned orders challenged in this petition. According to him, sufficient material was available before the respondents Nos.1 and 2 to justify their conclusion that the declaration of assets made by the petitioner was not correct and thus, he was disqualified in terms of section 152(1)(i) of the Ordinance of 2001.
9. As against the above submissions, in his reply, Mr. Allah Bachayo Soomro, learned counsel for the petitioner once again made reference to the declaration of assets filed by the petitioner and contended that immovable property purchased under the registered sale-deed was duly declared by the petitioner at Serial No,1 of his declaration of assets, but it was only due to bona fide mistake that in the column of mode and date of acquiring ownership, instead of sale-deed, ownership by inheritance was mentioned. Learned counsel lastly contended that the disputed questions as regards the alleged claim of ownership of the petitioner in respect of certain moveable and immovable properties attributed to him by the respondent No,3, either needed holding of detailed inquiry within the scope of summary inquiry as contemplated under rule 14 of the Election Rules, 2005 or the petitioner should have been allowed to contest the elections, leaving these disputed issues to be raised and decided by the Election Tribunal through election petition in terms of rule 65 of the Election Rules, 2005.
10. We have carefully considered the arguments advanced by learned counsel for the parties and perused the material placed on record.
11. Admittedly, the nomination Form of the petitioner was rejected by the respondent No,1 vide his order dated 16-9-2005 on the basis of objection of respondent No,3 that the petitioner owned one plot admeasuring 2500 sq.Ft. In Benazir Colony, Mithi Town, which fact was denied by the petitioner for want of knowledge with further assertion that he was not in its possession: In his memo. Of appeal under rule 14(4) of the Election Rules, 2005, the petitioner has categorically stated that the said plot was neither owned by him nor he was in possession of the same. He has further stated that the documents produced by the respondent No,3 are managed by his political opponents for depriving him from contesting the election of Nazim, Zila Council, Tharparkar is also an admitted position from the record that the appellate. Court/respondent No,2 has passed its impugned order dated 20-9-2005 by taking into consideration other grounds, which were even not raised by the respondent No,3 before the respondent No,1/Returning Officer. Before us, also a new ground as regards petitioner's disqualification, being wilful defaulter, has been raised by the respondent No,3, with reference to the alleged ownership of vehicle bearing Registration No,R-0788 by the petitioner, and to add force to such claim certificate dated 24-9-2005 issued by Excise and Taxation Officer, Motor Registration Authority, Hyderabad has also been placed on record by respondent No,3, along with his counter-affidavit.
12. After taking into consideration all these facts and circumstances, we are in agreement with the submission of Mr. Allah Bachayo Soomro that nomination Form of the petitioner was rejected by respondent No,
1. And his appeal was dismissed by respondent No,2 without holding proper summary inquiry in terms of rule 14 of the Election Rules, 2005 and without affording him due opportunity of rebuttal and hearing. In this context it may be observed that it is elementary rule for safe dispensation of justice that principle of "audi alterm partem" is to be read in each and every statute, whether specifically provided or not. More particularly when a penal action is being taken against any person. Thus, failure of any authority, Tribunal or Court to meet this bare minimum standard will vitiate the whole action. Looking to the instant case on this yardstick we find that this principle was not judiciously followed, therefore, it is a fit case where the two impugned orders are liable to be set aside.
13. Above are the reasons of our short order passed in this petition on 3-10-2005, which reads as under:-- "This petition is disposed of in the term that both the impugned orders dated 16-9-2005 and 20-9- 2005 respectively passed by respondents Nos.1 and 2 are set aside directions to the respondent No,1, to decide the question of rejection/acceptance of nomination form of the petitioner afresh within one day from the date of receipt of copy of this order, after taking into consideration all the objections raised by the respondent No,3 before him, before respondent No,2 and before this Court.
Copy of such objections raised by respondent No,3 may be placed by him before respondent No,1 when fresh scrutiny of the nomination form of the petitioner is made by him."
14. Before parting with this order it may be observed that we have refrained from commenting upon various documents filed by the petitioner and respondent No,3, so that no prejudice is caused to the case of either party in the proceedings before respondent No,1 in terms of above order.