' Through this constitutional petition, the petitioner has assailed the order dated 09.04.2015 passed by Respondent No, 2 (Appellate Authority) whereby order of the Returning Officer dated 04.04.2015 was set aside, resultantly, the nomination papers of the petitioner were rejected.
2. .Brief facts are that petitioner submitted nomination forms before Respondent No, 1 to contest election from Ward No, 7, Cantonment Board, and Multan. Respondent No, 3 filed objection petition against the petitioner's nomination papers which was declined and the nomination papers of the petitioner were accepted by Respondent No,
1. On 04.04.2015. Respondent No, 3 being aggrieved filed appeal before Respondent No, 2 which was accepted on 09.04.2015 and nomination papers of the petitioner were rejected.
3. Learned counsel for the petitioner argued that nomination papers of the petitioner were rejected by the appellate authority on the grounds that petitioner's assets are inconsistent with his declaration of assets and justifiable means and therefore, he is not qualified to contest the election u/S. 60(1)(i) of the Cantonment Ordinance, 2002 ("Ordinance") and further held that petitioner suppressed his assets from FBR, therefore, he evaded the tax, hence disqualified under Section 60(1)(j) of the Ordinance. Learned counsel contends that the aforesaid finding is absolutely baseless as the assets declared by the petitioner' in the declaration form alongwith his wealth tax statement (which was part of his declaration form) are the only assets owned by the petitioner. He submits that there are no other assets available on record which are inconsistent with the declared assets of the petitioner or beyond his justifiable means. He submits that the petitioner is a tax payer and regularly filing his return and there is no adjudication of tax evasion against the petitioner by the taxation authority. He further submits that the wealth tax statement dated 15.02.2015 gives detail of the movable and immovable property owned by the petitioner which was manually filed with the Income Tax Department and the copy of same was also placed alongwith the nomination papers filed before the Returning officer which fact is admitted by the Returning Officer in his report filed before this Court, hence there is no occasion to declare the petitioner not qualified to contest the election. He further submits that in FIR No, 28/2014 (now placed through CM. By Respondent No, 3 in this petition), the petitioner is already on bail before arrest and the said FIR is false and frivolous as site-plan mentioned in the FIR was already sanctioned in year 1978. He adds that to contest election is a fundamental right of the petitioner which cannot be denied on mere assumption that petitioner has assets beyond his means and declaration without any concrete evidence to that affect
4. Conversely the learned counsel for the Respondent No, 3 vehemently opposed this petition and argued that petitioner in his declaration of assets filed alongwith his nomination papers has not mentioned the detail of his business in M/s. H & D Enterprises and Shah Mechanical Works. He further submits that the wealth tax statement relied upon by the petitioner was never filed alongwith the nomination papers. He contends that this fact is evident from the report of the appellate authority where it is specifically mentioned that no such document was placed before the appellate authority. He further contends that report of returning officer to the affect that wealth tax statement is available on record is contrary to his own statement made before this Court on 15.04.2015. He further submits that the petitioner is not sagacious, righteous and honest person as FIR No, 28/2014 dated 30.1.2014 u/S. 146(D)(2) of Local Government Ordinance, 1979 has been registered against the petitioner and he has already been declared proclaimed offender by the trial Court in said case.
5. Learned standing counsel submits that report of the Returning Officer as well as appellate authority are available on record which are sell explanatory.
6. I have heard the learned counsel for the parties and gone through the record with their able assistance.
7. The perusal of record shows that nomination papers of the petitioner were accepted by the Returning Officer on 04.04.2015, however, in appeal filed by Respondent No, 3, the appellate authority set aside the order of Returning Officer and rejected the nomination papers of the petitioner on the ground that petitioner has not declared assets as cash in hand, bank balance and business capital. The appellate authority further held that petitioner has also not mentioned his income from 'business of M/s. H & D Enterprises and Shah Mechanical Works and he farther suppressed assets from the FBR to evade taxation. To evaluate the above finding of the learned appellate authority. I have gone through the declaration of assets filed by the petitioner alongwith his nomination papers. The said declaration shows that petitioner has given the details of his movable and immovable properties. The wealth tax statement dated 15.02.2015 also gives detail of properties including the share holding of the petitioner in M/s. H& D Enterprises and M/s. Al-Akbar Enterprises.
8. The claim of the petitioner is that wealth tax statement dated 15.02.2015 in which detail of his business and property is mentioned was part of his nomination papers and was produced before the Returning Officer. On the other hand, the Respondent No, .3 has denied this fact and claimed that wealth tax Return was never produced before the Returning officer. To resolve this controversy, on 15.04.2015 during course of arguments Returning Officer present in Court was questioned if wealth tax return is available on the record, he denied this fact, however, requested for some time to file report after going through the record. Subsequently, a report dated 17.04.2015 was filed by the Returning officer in which he categorically stated that the wealth tax statement of the petitioner is available on record and the certified copy of same which is filed before this Court by the petitioner was duly certified by the said Returning Officer. He however, tendered unconditional apology for making of incorrect statement before this Court due to oversight of said document which was not placed in relevant files. On the other hand, the Respondent No, 2 filed his report to the affect that wealth tax statement was never produced before Respondent No, 2 during hearing of appeal of Respondent No 3. The above report of Respondent No, 1 prima facie reveals that wealth tax statement was filed by the petitioner alongwith his nomination papers and same is also available on record with Respondent No, 1 who himself issued its certified copy. Even if the said wealth fax statement was not brought to the notice of appellate authority, it cannot be presumed that the petitioner has not filed this statement along with his declaration of assets, which as per admission and report of Respondent No, 1 is available in the record. Even otherwise right to contest election is a vested right of every citizen and in case of any doubt whether the wealth tax statement declaring the assets and share holding of the petitioner was available on record or not, the benefit of such doubt will be given to, the petitioner whose right to contest election is at stake.
9. Plain reading of the declaration form read with wealth tax statement filed by petitioner shows that the petitioner has declared his movable and immovable assets and even his share holding in business including M/s. H & D Enterprises and M/s. Shah Mechanical Works is mentioned therein. In the impugned order, there are no other assets shown to be in possession of the petitioner which are inconsistent to his declaration and justifiable means. Even the respondents could not produce detail of and assets of petitioner which are not mentioned in the declaration and his wealth tax statement filed alongwith declaration. Therefore, it cannot be said that petitioner is not eligible to contest the election u/S. 60(1)(i) of the Ordinance.
10.. So far as allegation of evasion of tax is concerned, the petitioner is admittedly a registered tax payer and placed on record his personal return of income tax for the tax year 2014 showing that he paid income tax of Rs, 1,09,906/-. There is no adjudication or notice produced by the respondents or referred to by the appellate authority in the impugned order showing that petitioner has evaded any tax. Hence petitioner cannot be held disqualified u/S. 60(1)ij) of the Ordinance.
11. The argument of learned counsel for the Respondent No, 3 that petitioner is involved in a criminal case was never agitated before the Returning Officer or even before the appellate authority by the Respondent No,
3. Even otherwise merely because an FIR under the Local Government Ordinance, 1979 has been registered, where petitioner is on bail before arrest, will not make petitioner disentitle to contest election unless there is conviction by the Court of competent jurisdiction. There is also no declaration by any Court of law on the record to show that petitioner is not sagacious, righteous and Amin.
12. Though in constitutional jurisdiction, this Court cannot embark upon the factual inquiry, however, in the present case, no such factual inquiry is required to reach to the conclusion that the impugned, order on the face of it is patently illegal and in violative of the provisions of the Ordinance, therefore, not sustainable under the law. It is settled law that where the order is in excess of jurisdiction, without jurisdiction and in manifest breach of some law, the same can be set-aside by this Court in constitutional jurisdiction. In this regard reliance is placed on Muhammad Siddique vs. Delimitation Officer, Liaqatpur (1993 CLC 63) and Khawas Khan vs, Govt of N.W.F.P (2003 CLC 817) and Khan Muhammad Kalyar vs. Commissioner Sargodha, Division Sargodha (2001 M LD 303).
13. In view of above discussion, petition in hand is allowed, the impugned order is set aside and nomination papers of the petitioner are accepted, resultantly he is allowed to contest election for Ward No 7, Cantonment Board, Multan Region Multan.
(R.A.) .