1. ' MUZAFFAR ALI, J.--- We propose to dispose of the above writ petitions through this single judgment as the petitions raise identical questions of law and facts.
2. ' The petitioners are nominees to contest the elections (hereinafter called the elections) to be held on 12th November, 2009 for GilgitBaltistan Legislative Assembly (hereinafter referred as Assembly), but their nomination papers submitted for their respective constituencies were rejected by the respective Returning Officers on the due date for the scrutiny and the rejection orders were up held by the respective District Elections Commissioners/revising authorities, holding the petitioners to be defaulters in return of loans obtained from various institutions, like National Bank, Karakuram Co- operative Bank, House Building Finance Corporation and rent dues of NA House Islamabad etc. Payable to Government of Gilgit-Baltistan by some of the petitioners, hence these writ petitions before us.
3. ' We heard the learned counsel for the petitioners and the learned Advocate-General for the respondents. The learned counsel for the petitioners urged, that neither the petitioners have been declared defaulters, nor being defaulters is a ground of disqualification under rule 37 of Gilgit- Baltistan (Empowerment and self Governance) Order, 2009 (hereinafter called the order) for contesting the election as such the impugned rejection orders are contrary to law, without jurisdiction and against the fundamental rights. In response the learned Advocate-General argued that since the petitioners have failed to pay back the loans due on them in favour of various financial institutions as such they are disqualified to contest the elections under the rule 37 of the order as such the impugned orders lacking no jurisdiction and are according to law and the writ petitions are not maintainable.
4. ' We, keeping in view the points raised by the learned counsel and the learned Advocate-General, visited the order to examine and ascertain whether the petitioners are disqualified under the provisions of the order to contest the elections as the order has been recently introduced by the Federal Government which is basic legal document and can be deemed as having force of constitution for Gilgit-Baltistan, whereby not only the Assembly has been created but the fundamental rights of citizens of Gilgit-Baltistan have also been prescribed and qualifications or disqualification of a candidate contesting the elections to the Assembly have been stated therein.
5. ' The learned Advocate-General emphasized on provision 37(2)(b) of the Order whereby in his opinion, the petitioners are disqualified to contest the elections as they have failed to pay the dues to various financial Institutions, hence the provision is reproduced hereunder:--- "37(2)(b) "he is an undischarged insolvent unless a period of ten years has elapsed since his being adjudged as insolvent."
6. ' In this provision two words (a) "undischarged insolvent" and "adjudged" are required to be defined and interpreted:--- "Insolvent" A debtor is said to be insolvent when he cannot pay his debts as they become due, out of his own moneys. It is, therefore, quite possible for a person to have assets exceeding his debts and yet be insolvent, because he cannot realize his assets---Harms.
7. Insolvency. The condition which marks a man's or a firm's liability to meet full monetary obligations.
8. When a person is in this strait, he can either call his creditors together and endeavour to come to some private arrangement with them according to the nature of his assets, or he can place himself in the hands of Bankruptcy Court, which will administer the estate and distribute the assets for the benefit of the creditors---Pears.
9. Bankrupt.<.u> An English term for "insolvent". The bankruptcy law is distinguished from the ordinary law between debtor and creditor as involving these three general principles: (1) a summary and immediate seizure of all the debtors' property; (2) a distribution of it among the creditors in general, instead of merely applying a portion of it to the payment of the individual complaint; and
(3) the discharge of the debtor from future liability for the debts then existing Wahrton. See also Law Dictionary 6th Ed. (1976) p.45: ' When a person is adjudicated a bankrupt, all his property, ' whether real or personal, vests in the trustee or trustees: Bankruptcy notice. The notice served upon a debtor by a person who has obtained against him in any Court a final judgment or order for any amount, and non-compliance with which within seven days after service constitutes an act of bankruptcy. See secs 1(1)(g) and 2, Bankruptcy Act, 1914-- Osborn's Concise Law Dictionary.
10. Adjudge. To pass on judicially, to decide, settle or decree, or to sentence or condemn. People v.
11. Rave 364 III. 72,3 N.E.2d 972, 975. Judgment of a Court of competent jurisdiction; equivalent of convicted and sentenced. Implies a judicial determination of a fact and the entry of adjudgment.
12. See also Adjudication; Judgment. -- Black's Law Dictionary, 7th Ed.p.42.
13. Adjudicate. To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense. United State V Irwin 12U.S. 125, 8 St. 1033,32 L.Ed.99. -- Black's Law Dictionary, 7th Ed. P.42.
14. ' Now we are going to discuss the relevant provisions of "Government Dues Recovery Ordinance, 1962" which defines the defaulter and consequences thereupon and also provide procedure to recover the dues as under:--- Section 2(a) "Defaulter" means a person from whom any dues are recoverable by Government, and includes person who is responsible as surety for the payment of any such dues; and;
(a) "Government" means the Government of the Province concerned.
15. 3(1) Government may, "by notification, declare that any dues or class of dues recoverable by Government shall be recoverable from the defaulters as if such dues were arrears of land revenue:
(2) "On the publication of a notification under subsection (1) any such dues shall be recoverable under the Revenue Recoveries Act, 1890 (Act of 1890) as arrears of land revenue. "
16. ' From perusal of above provisions of the Ordinance it becomes evident that a person may be declared defaulter by the Government through notification for the purpose of recovering such dues from the defaulter as if such dues were arrears of land revenue and unless, the person is declared and notified as to be defaulter by the Government, the person cannot be said to be defaulter and no recovery can be made by extending the special procedure provided for recovery of arrears of land revenue under Land Revenue Act.
17. ' The short account of the above discussion is that a defaulter is a person who owes some dues to any Government or its financial institutions and has been declared to be defaulter by the Provincial Government for the purpose to resort various recovery methods under relevant law against him, but a defaulter cannot be said insolvent unless the person has been adjudged insolvent by a competent forum, either on application of the person himself or by his creditors after issuance of notice under law and when a person is adjudged to be insolvent, his assets vest in the trustees, which are being distributed among all his creditors, generally Insolvency gives shelter to the debtor from his future liability for the debts then existing upto the time he discharges himself from the insolvency adjudged.
18. ' The above general, but relevant to the cases in hand discussion clears the legal picture, that the rule 37(2)(b) disqualifies a person to contest the elections to the Assembly, if he has been adjudged by a competent forum to be insolvent and he has not discharged himself from insolvency and a period of ten years has not elapsed since his being adjudged as insolvent.
19. ' The provision 37(2)(b) of the Order clearly envisages disqualification of an adjudged insolvent from contesting the elections for the Assembly and none of the petitioners have been adjudged to be insolvent by a competent forum and even none of the petitioners have been declared defaulter too by any competent authority and the impugned rejection orders are based merely on lists sent by the financial institutions to the elections authorities as such the impugned orders are without jurisdiction and void ab initio.
20. ' The upshot of the above discussion is that the impugned rejection orders are set aside declaring the same to be void ab initio and without jurisdiction and the petitioners are allowed to contest.
21. The elections, if they are otherwise qualified. Coy of this judgment be sent to the office of Chief Election Commissioner, Gilgit-Baltistan.