' MUHAMMAD FARRUKH IRFAN KHAN, J.---Facts of the case in brief are that the petitioners filed joint nomination papers for the seat of Chairman and Vice Chairman in U.C. No,27 Mansoor Sial, Tehsil and District Jang. Respondents Nos.5 and 6 raised objections on the nomination papers of the petitioners inter alia on the grounds that petitioner No,1 availed loan facility, of Rs,55 Million from respondent No,6 (MCB Bank) under the name and style of Suleman Rice Mills for a period of one year w.e.f, 01.09.2013 to 31.08.2014; that an amount of Rs,28.771 million is outstanding against him; that petitioner No,1 moved application before the Bank showing his inability to pay outstanding loan as such he is an undisharged insolvent and is disqualified to contest the elections as per Section 27(2)(c) of the Punjab Local Government Act, 2013.
2. This objection did not find favour with the Returning Officer who accepted the nomination papers of the petitioners vide order dated 13.10.2015. On appeal of respondents Nos.5 and 6 against the aforesaid orders of the learned Returning Officer. The learned Appellate Authority while declaring petitioner No,1 undischarged insolvent/defaulter rejected their nomination papers vide consolidated order dated 29.10.2015 which is subject matter of this writ petition.
3. Arguments heard. Record perused.
4. Section-27(2)(C) of the Punjab Local Government Act, 2013 reads as under:-- "(2) A person shall be disqualified from being elected or chosen as, and from being an elected member of a local government, if he-
(a) -----
(b) -----
(c) is an undischarged insolvent;
5. Now the question which requires determination is whether petitioner No,1 is an "undischarged insolvent" or not. No definition of the terms "undischarged" or "insolvent" or the combined term "undischarged insolvent" has been given in the Punjab Local Government Act, 2015 or the Punjab Local Governments (Conduct of Elections) Rules, 2013. However, the Provincial Insolvency Act, 1920 is the appropriate legislation to deal with the insolvency of a subject. Section-3 whereof reads as under:--
3. Insolvency jurisdiction.---(1) The District Courts shall be the Courts having jurisdiction under this Act: ' Provided that the Government may, by a notification in the official Gazette, invest any Court subordinate to a District Court with jurisdiction in any class of cases, and any Court so invested shall within the local limits of its jurisdiction have concurrent jurisdiction with the District Court under this Act.
(2) For the purpose of this Act, a Court of Small Causes shall be deemed to be subordinate to the District Court."
6. Section-4 of the Act ibid reads as under:--
4. Power of Court to decide all questions arising in insolvency.---(1) Subject to the provisions of this Act, the Court shall have full power to decide all questions whether of title or property, or of any nature whatsoever, and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognizance of the Court, or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case.
(2) Subject to the provisions of this Act and notwithstanding anything contained in any other law for the time being in force, every such decision shall be final and binding for all purposes as between, on the one hand, the debtor and the debtor 's estate and, on the other hand, all claimants against him or it and all persons claiming through or under them or any of them.
(3) Where the Court does not deem it expedient or necessary to decide any question of the nature referred to in subsection (I), but has a reason to believe that the debtor has a saleable interest in any property, the Court may without further inquiry sell such interest in such manner and subject to such conditions as it may think fit."
7. Section-7 of the Act provides as under:--
7. Petition and adjudication. Subject to the conditions specified in this Act, if a debtor commits an act of insolvency, an insolvency petition may be presented either by a creditor or by the debtor, and the Court may on such petition make an order (hereinafter called an order of adjudication) adjudging him an insolvent."
8. Section-27 of the Act ibid states as under:--
27. Order of Adjudication.---(1) If the Court does not dismiss the petition, it shall make an order of adjudication, and shall specify in such order the period within which the debtor shall apply for his discharge.
(2) The Court may, if sufficient cause is shown, extend the period within which the debtor shall apply for his discharge, and in that case shall publish notice of the order in such manner as it thinks fit."
9. Under Section 28 of the Act ibid various consequences pursuant to an order of adjudication are provided. Section-41 of the Insolvency Act provides as under:-- 10.
41. Discharge.---(1) A debtor may, at any time after the order of adjudication and shall, within the period specified by the Court, apply to the Court for an order of discharge, and the Court shall fix a day, notice whereof shall be given in such manner as may be prescribed, for hearing such application, and any objections which may be made thereto.
(2) Subject to the provisions of this section, the Court may, after considering the objections of any creditor and, where a receiver has been appointed, the report of the receiver:---
(a) grant or refuse an absolute order of discharge; or
(b) suspend the operation of the order for a specified time;
(c) grant an order of discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the insolvent or with respect to his after-acquired property."
11. Effect of an order of discharge is dealt with under section 44 of the Act ibid which reads as under:--
44. Effect of order of discharge.---(1) An order of discharge shall not release the insolvent from:--
(a) any debt due to the Crown:
(b) any debt or liability incurred by means of any fraud or fraudulent breach of trust to which he was a party;
(c) any debt or inability in respect of which he has obtained forbearance by any fraud to which he was a party, or
(d) any liability under an order of discharge shall release the insolvent from all debts provable under this Act.
(2) Save as otherwise provided by subsection (1), an order of discharge shall release the insolvent from all debts provable under this Act.
(3) An order of discharge shall not release any person who, at the date of the presentation of the petition, was a partner or co-trustee with the insolvent, or was jointly bound or had made any joint contract within him or any person who was surety for him."
12. According to section 73 of the Act ibid order of insolvency is considered to be a disqualification to hold certain elected offices, however, an order of discharge restores the original status of an insolvent. It can thus safely be concluded that the Insolvency Act is a complete code and determination of all questions including the questions ether a person is insolvent or not and whether an insolvent be discharged or not and subject to what conditions can only be decided by the Court constituted under the Insolvency Act.
13. In the present case neither the respondent-bank ever presented any insolvency petition before the competent court as required under section 7 of the Act ibid nor the petitioner No,1 was adjudged as undischarged insolvent by a court of competent jurisdiction, therefore, the Appellate Authority was not justified in rejecting nomination papers of the petitioner on that account.
Reliance is placed on case reported as Thampanoor Ravi v. Charupara Ravi and others (AIR 1999 Supreme Court 3309) wherein it has been laid down as under:-- "in the present case, as we have explained earlier the scheme of the provisions of Insolvency Act, the exclusive jurisdiction to deal with any question relating to insolvency could be adjudicated upon only by the Court constituted under that Act. In such a situation, it would not be possible to hold that the High Court had, while dealing with an election petition jurisdiction to decide a question as to whether a person is an undischarged insolvent or not. Admittedly, in this case, there is no such adjudication. Hence the High Court could not declare the appellant to be an "undischarged insolvent."
14. Similar view is taken by the learned Division Bench of this Court in case reported as Ch. Tanvir Khan v. President, Cantt. Board, Rawalpindi and 2 others (1999 M LD 721).
15. Learned counsel for respondent-bank while referring to section 2(8) of the Sale of Goods Act, 1930 submits that the petitioner No,1 moved application showing his inability to pay outstanding amount, therefore, by virtue of definition of "insolvent" in the aforesaid law, the petitioner was rightly declared ineligible to contest the elections by the learned Appellate Authority. No doubt according to aforesaid section an "insolvent" is defined as a person who had ceased to pay his debts in the ordinary course of business and cannot pay his debts in the ordinary course of business as they become due, whether he has committed an act of insolvency or not but question of insolvency of a buyer is of considerable importance in the context of the seller's lien. It is in this special context that a meaning has been given to the expression 'insolvent' even though a person had not been adjudged an insolvent in the Insolvency Act to be insolvent for the purpose of the said Act but the said definition cannot be imported into the Punjab Local Government Act, 2013. See case of Thampanoor Ravi supra.
16. It is also worthwhile to mention here that in the predecessor legislation a different criterion was provided for disqualification of a candidate on the grounds of financial inadequacy. In the Punjab Local Government Elections Ordinance, 2000 section 14(j) of the Ordinance reads as under:-- "14. Qualification for candidates and elected members. A person shall qualify to be elected or to hold an elective office or membership of a local government, if he,
(j) has not been adjudged a willful defaulter of any tax or other financial dues owed to the federal, a provincial, or a local government or any financial institution, including utility bills outstanding for six months or more, (emphasis supplied)
17. Identical provisions were given in the Punjab Local Government Ordinance, 2001 section 14(j) of the Ordinance provides as under:-- "14. Qualification for candidates and elected members. A person shall qualify to be elected or to hold an elective office or membership of a local government, if he, (I) has not been adjudged willful defaulter of any tax or other financial dues owed to the federal, a provincial, or a local government or any financial institution, including utility bills outstanding for six months or more "
(emphasis supplied)
18. It is thus abundantly clear from the current legislation that the legislature intentionally avoided to use the word "willful defaulter" in the Punjab Local Government Act, 2013, therefore, in the absence of such words the person who is not adjudged as "undischarged insolvent" cannot be precluded from the election process merely on the ground that he/she has some loan to pay. In the case of Punjab Local Government Act, 2013 the legislature in its wisdom opted only to bar the entry of "undischarged insolvent" and not a "defaulter of loan". It is not for this Court to supply the omission of the legislature. The principle of "Casus Omissus" has along been followed by the Courts in Pakistan.
19. Keeping in view the above legislative changes, at this stage, this Court is constrained to observe that term "defaulter of loan" has mistakenly been confused with "undischarged insolvent" although concepts are entirely different and cannot be interchanged with the other. The argument that in fact the purpose of section 27(2)(c) of the Punjab Local Government Act, 2013 was to prevent loan defaulters etc. From contesting the local bodies elections has not impressed me. While making this observation I am minded by the fact that determining the meaning of an expression used in a statute certain principles are to be taken into consideration. One of those being that if an expression has attained a special connotation in law a general or simple dictionary meaning would not be helpful while interpreting such an expression. In such cases the expression must be given its legal sense. Reliance is placed on cases reported as State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd. 1959 SCR 379, (AIR 1958 SC 560).
20. Therefore, in the opinion of this Court term "undischarged insolvent" has a special meaning which it has acquired under the law of insolvency. Thus keeping in view aforesaid principles this is the meaning that should be attributed to the expression used in Section 27(2)(c) of the Act ibid.
21. The upshot of the above discussion is that this writ petition is allowed as a consequence whereof impugned order of the learned Appellate Authority dated 29.10.2015 is set aside and that of the learned Returning Officer dated 13.10.2015 accepting nomination papers of the petitioners is restored.