' Brief facts of the case are that petitioners and respondents Nos.2 to 5 contested the election of Nazim and Naib Nazim for Union Council No,47, Mitro, Tehsil Mailsi, District Vehari. At the time of scrutiny of the nomination papers, an objection was raised by the respondents that petitioner No,1 is a defaulter of National Bank of Pakistan, therefore, under section 14(j) of the Punjab Local Government Elections Ordinance, 2000, was disqualified. Resultantly, on this objection, the learned Returning Officer rejected the nomination papers of the petitioner. The petitioners went in appeal.
Their appeal was also dismissed by the District Returning Officer. The petitioners then filed Writ Petition No,3878 of 2001, which was disposed of with a direction that the petitioners shall deposit a sum of Rs,20,00,000 and with this condition their nomination papers were accepted. However, the same was further subject to a decision to be made by the Banking Court and any other forum before whom the election can be challenged. The parties went to polls and as a result thereof, the petitioners were elected as Nazim and Naib Nazim respectively. Respondents Nos.2 and 3 filed election petition against the petitioners and challenged their election on the same ground of being defaulter. The same was contested by the present petitioners. The learned Tribunal vide order dated 6-7-2002, accepted the election petition, declared both the petitioners to be disqualified for contesting the elections of Nazim and Naib Nazim on the ground of being adjudged defaulter and as a consequence thereof, respondents Nos.2 and 3 have been declared to be returned candidates. This order is being assailed through the instant writ petition.
2. Learned counsel for the petitioners contends that at the time, when the nomination papers were filed, a suit for the recovery of certain amount, filed by the National Bank of Pakistan was pending against petitioner No,
1. However, the same was decreed by learned Banking Court No,I on 27-9- 2001 and a decree for an amount of Rs,28,04,214 was passed against him. Therefore, it is argued that when the nomination papers were filed, there was no adjudication against petitioner No,1 to be in default of any amount as contemplated in Section 14(j) of the Punjab Local Government Elections Ordinance, 2000. It is further submitted that under rule 81(b) of the Punjab Local Government Rules, 2000, since the disqualification being alleged against petitioner No,1 was not available at the time of filing of the nomination papers, therefore, the election petition was not maintainable before the learned Tribunal. It is also pointed out that adjudication of default against petitioner No,1 materialized on the basis of a decree passed by the learned Banking Court on 27-9- 2001 while, the instant election petition was filed by respondents Nos. 2 and 3 on 5-7-2001, therefore, it is concluded that at the time when election petition was filed, petitioner No,1 was not an adjudged defaulter, therefore, the election petition was not competent. It is also submitted that the only course open to the respondents was to have moved an application to the Election Commissioner under section 161 of the Punjab Local Government Ordinance, 2001.
3. It is further argued by the learned counsel for the petitioners that respondents Nos.2 and 3 did not implead respondents Nos.4 and 5 in their election petition, who were necessary party as they were also contestants of the election alongwith the petitioners and the said respondents, therefore, have violated the provisions of rule 71 of Punjab Local Government Elections Rules, 2000. Thus, the penalty provided under rule 77 becomes applicable and the petition was liable to be dismissed.
Relies on 1998 CLC 272.
4. It is finally argued by the learned counsel for the petitioners on the strength of PL' D 1968 SC 301 at 309 and 2002 YLR 2094 that even if it is proved that the petitioners were disqualified, still, respondents Nos.2 and 3 could not have been declared to have been returned.
' According to him, the voters who had voted for his client, in this way be disenfranchised for no fault on their part.
5. On the other hand, learned counsel for the respondents contends that the word "Adjudged Defaulter" does not mean that some adjudication is required before one could be termed as a defaulter. He refers to the latter part of section 14(j), which includes the default in payment of utility bills outstanding for six months against a person, which according to him, does not require adjudication from any Court. Mere presentation of such a bill constitutes a sufficient charge against a person and by its non-payment he can be validly said to be an adjudged wilful defaulter.
It is argued that since the petitioner was in default with the bank, therefore, issuance of his statement of account by the bank official after consulting his accounts amounts to adjudication.
Thus, the statement of account issued by the bank should be deemed to hold anybody as an adjudged defaulter. It is further added that since a Division Bench of this Court while allowing the petitioners to contest elections vide order dated 10-5-2001, in Writ Petition No,3878 of 2001 had qualified the nomination of the petitioners with the findings of the Banking Court and of an election petition, therefore, since an adjudication by the Banking Court has come on record against the petitioners of being a defaulter, therefore, there is no option but to hold that petitioner No,1 was defaulter at the time of filing of nomination papers.
6. It is argued by the learned counsel for the respondents that the objection of non-impleading respondents Nos.4 and 5 was not specifically taken by the petitioners in their written reply to the election petition nor it has been shown that any prejudice was caused to the petitioners or in any manner non-impleading of respondents Nos.4 and 5 had materially affected the adjudication of the election petition, particularly, when the said respondents were not serious contestants of the election as they had secured only 33 votes as against the others real contestants i.e, the petitioners and the respondents Nos.2 and 3, who had secured 3213 and 2713 votes respectively.
7. It is further argued by the learned counsel for the respondents that the respondents had been agitating and throwing a challenge to the disqualification of the petitioners from the very first day i.e, from the time of scrutiny of nomination papers. They were only allowed by this Court by making a deposit to contest the election provisionally, therefore, it is argued that not only the petitioners but also the entire electoral college was having the notice of the inherent disqualification of the petitioners, therefore, the Tribunal had no option but to declare the respondents Nos.2 and 3 to have been elected. As such the election as a whole could not have been declared void. It is lastly argued that under rule 81(b) of the Punjab Local Government Elections Rules, 2000, both Nazim and Naib Nazim could be declared by the Tribunal to be disqualified, if any such disqualification is attached or is attributable to any one of them.
8. It is finally argued by the learned counsel for the respondents that against the judgment and decree of the learned Banking Court dated 27-9-2001, petitioner No,1 had filed Regular First Appeal No,378 of 2001 in this Court, which is still pending. Vide order dated 23-5-2002, this Court had suspended the operation of the impugned judgment and decree of the learned Banking Court subject to furnishing bank guarantee equivalent to the decretal amount. It is submitted by the respondents and not denied by the petitioners that no such bank guarantee was filed by the petitioners. Therefore, it is contended that by this conduct, petitioner No,1 has become "adjudged defaulter" and is thus disqualified.
9. As a right of reply, learned counsel for the petitioners contends on the strength of PLD 1966 Lahore 1 1 1 that the use of word "including" before the utility bills in clause (j) of section 14 of the Elections Ordinance, 2000, makes the subsequent provision as disjunctive from the earlier part of clause (j). Thus, it is concluded that a default in tax or other financial dues requires adjudication but the utility bills do not need any such adjudication.
10. I have considered the arguments of the learned counsel for the parties.
11. The relevant provision of Punjab Local Government Elections Ordinance, 2000, i.e, section 14(j) is reproduced for ready reference:-- "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 wilful 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; "
' In the above-referred provision, the most important phrase for the purposes of this case, is "adjudged". In order to understand the meaning and scope of the above-referred word, it would be advantageous to reproduce its definition made in different dictionaries:--
(1) CORPUS JURIS SECUNDUM, VOLUME 2.
Adjudge ' The word "adjudge" is defined as meaning to pass on judicially; to adjudicate; to decide, settle or decree; decide, determine or find; to sentence or condemn. The word does not necessarily carry with it the idea of a judgment according to law. "Adjudge" has been held to be synonymous with "adjudicate".
' While it has been held that the term 'implies a judicial determination of a fact, and the entry of a judgment, it does not necessarily refer to a final judgment, but may be applied as well to interlocutory orders or decrees of Court; and it has been held that the word does not necessarily carry with it the idea of a judgment according to law, and that, even where used with words ordinarily found in criminal statutes, it may refer to an act of the political department of the Government. It has been said that it is not so completely a word of art or of such technical meaning that the obvious Legislative intent may not be sought.
"Adjudged" is defined as meaning adjudicated or judicially determined; decided or determined; deemed; found or decided.
"Adjudged" is practically synonymous with "believe".
' By common understanding the word "adjudicate" connotes a determination by a Court or Judge in a judicial proceeding, and thus the term is defined to mean to determine finally; to settle in the exercise of judicial authority; to determine in the exercise of judicial power; to judicially determine.
(2) WEBSTER'S NEW WORLD COLLEGE DICTIONARY.
' THIRD EDITION.
' Adjudge ' To judge, decide; to judge or decide by law; to declare or order by law; to give or award (costs, etc.) by law.
(3) WORDS AND PHRASES, VOL.I, 1996 ' Adjudge ' To pass on judicially, to decide, settle, or decree, or to sentence or condemn. Judgment of a Court of competent jurisdiction; equivalent of convicted and sentenced. Implies a judicial determination of a fact, and the entry of a judgment.
(4) BALLENTINE'S LAW DICTIONARY, THIRD EDITION ' Adjudge ' To give judgment, to decide; to sentence.
(5) BLACK'S LAW DICTIONARY, FIFTH EDITION.
' Adjudge.
' To pass on judicially, to decide, settle or decree, or to sentence or condemn. Judgment of a Court of competent jurisdiction; equivalent of convicted and sentenced. Implies a judicial determination of a fact, and the entry of a judgment."
' The above-quoted definitions indicate that a person can only be said to have been "adjudged" provided he has undergone the rigours of a trial before a Court of competent jurisdiction and some verdict is given by the Court in a judicial proceeding. The argument of the learned counsel for the respondents that the issuance of a statement of account by a Bank Officer after consulting the accounts of an individual, amounts to adjudication, is not acceptable. Such a statement of account when presented before a Court of competent jurisdiction may be accepted, rejected or varied, while, the findings given by the Court on such determination would be an adjudication at law, which status cannot be given to a statement of account prepared by a Bank Officer. In the instant case, no doubt, at the time, when the nomination papers were filed and scrutinized, a suit against petitioner No,1 was pending in the Banking Court, but it had not materialized into a final adjudication till 27-9-2001, when a judgment and decree was passed by the learned Banking Court. Therefore, it cannot be said that petitioner No,1 was an "adjudged defaulter" at the time of filing of nomination papers. It is also to be observed that the election petition was filed by respondents Nos.2 and 3 on 5-7-2001. Even on this date, there was no adjudication of default against petitioner No,1, therefore, under rule 81 of the Punjab Local Government Elections Rules, 2000, no ground was available with the Election Tribunal to declare petitioner No,1 as disqualified.
Therefore, it is held that the election petition filed by respondents Nos.2 and 3 on 5-7-2001, was not even maintainable.
12. The argument of the learned counsel for the respondent that, as the utility bills do not require any adjudication by a Court, therefore, on the same analogy the default of any tax and other financial dues can also be said to be "adjudged" on mere presentation of a demand, is without any substance. The use of word "including" in clause (j) of section 14 makes the utility bills disjunctive from the tax and financial dues which do require adjudication by a Court of competent jurisdiction.
13. The argument of the learned counsel for the respondents has some force that the judgment and decree of the learned Banking Court dated 27-9-2001, was assailed by petitioner No,1 through Regular First Appeal No,8378 of 2001 before this Court. The operation of the decree was suspended by this Court vide order dated 23-5-2002, subject to furnishing bank guarantee equivalent to the decretal amount but since petitioner No,1 failed to submit the requisite bank guarantee, he has become a wilful adjudged defaulter. Unfortunately, all this happened after the filing of the election petition on 5-7-2001, therefore, the only course left with respondents Nos.2 and 3 was to move an application to the Chief Election Commissioner under section 161 of the Punjab Local Government Ordinance, 2001, where the same relief is available to them.
14. The objection of the petitioners that election petition was liable to dismissal for non-impleading respondents Nos.4 and 5 before the Election Tribunal as required under rule 71 of the Election Rules, 2000, is not sustainable, because rule 77 which provides the penalty for non-compliance of rule 71, is a discretionary power with the Tribunal. Both the rules are reproduced for ready reference:- "71. Parties to the petition.---The petitioner shall join all contesting candidates as respondents to his election petition and shall serve personally or by registered post (A.D.) on each respondent a copy of his petition.
77. Dismissal of petition during trial.--The Tribunal may dismiss an election petition if--
(a) the provisions of rules 70, 71 and 72 have not been complied with; or."
' The use of word "may" indicates that the., Tribunal may or may not exercise his power under this rule as the circumstances deem necessary. In the instant case neither the petitioners had raised this objection in their written reply to the election petition nor they have shown that any prejudice was caused to them. They have also failed to show that such non-impleading of respondents Nos.4 and 5 has materially affected the merits of the case. It is also evident that respondents Nos.4 and 5 were not the serious contestants as they secured only 33 votes, as against the petitioners and respondents Nos.2 and 3 who secured 3213 and 2713 votes respectively.
15. Since, it is already held in the preceding paragraphs that the election petition filed by respondents Nos.2 and 3 was not competent, therefore, it would be of no use to go into the question as to whether as a result of acceptance of the election petition respondents Nos.2 and 3 could or could not have been declared as returned.
16. For what has been stated above, instant writ petition is allowed. The order passed by the learned Election Tribunal dated 6-7-2002, is declared to be illegal and without lawful authority. No order as to costs.
Constitutional .