IRFAN GUL MAGSI VS HAJI ABDUL KHALIQ SOOMRO
1999 P T D 1302
[Election Tribunal Sindh]
Before Justice Rana Bhagwan Das, Election Tribunal
IRFAN GUL MAGSI
Versus
Haji ABDUL KHALIQ SOOMRO and others
Election Petition No.29 of 1997, decided on 29/10/1998.
(a) Representation of the People Act (LXXXV of 1976)---
----S. 99(1)(f)---Wealth Tax Act (XV of 1963), S.14---"Default"---Meaning and applicability---Expression "default" connotes an element of wilful and deliberate failure to fulfil an obligation and negligence' in the performance of the duty---Every failure on the part of a person without any ulterior design and mala fide intention would not equate with the expression "default" as used in its strict legal sense---Default, necessarily, imports an element of negligence or fault and means something more than mere non-compliance-- Where non-compliance had been due to some cause for which that person was, in no way, responsible or which was beyond his control "default" was not established.
Ghulam Muhammad Lundkhor v. Safdar Ali PLD 1967 SC 530 ref.
(b) Representation of the People Act (LXXXV of 1976)--
----S. 99(1)(f)---Wealth Tax Act (XV of 1963), S.14---Person declared to be in default---Absolutely necessary that there should have been a demand to make payment of a determined sum and the same should have been remained un-responded and unattended for a period beyond the period prescribed by law.
(c) Representation of the People Act (LXXXV of 1976)---
----S. 99(1)(f)---Wealth Tax Act (XV of 1963), S.14---Election petition-- Disqualification on the ground of default in payment of wealth tax-- Petitioner, an unsuccessful candidate had challenged the election of successful candidate for the false declaration of assets in the nomination forms and default in payment of wealth tax---Unless the Taxation Authorities had assessed the valuation of the assets of the returned candidate, determined the tax due and payable thereon, it was neither lawful nor warranted, in the circumstances, to usurp the powers of Tax Authorities-- Held, Election Tribunal was not possessed of the power of Taxation Authorities and it could not assume the role and jurisdiction to assess the valuation of the assets of the returned candidate and render him liable to payment of tax which, in law, was available to hierarchy in Tax Authorities under a variety of provisions contained in the Wealth Tax Act, 1963---No substance was found in the contentions raised in support of ground urged to disqualify the returned candidate from being elected as a member of the Provincial Assembly---Election petition was dismissed with cost in circumstances.
Fateh Muhammad v. Additional Commissioner 1993 CLC 1248; Qabil Shah v. Shadey PLD 1992 Pesh. 144; Muhammad Hassan Khan v. Mirza Abdul Hamid 1981 SCMR 799: Irshad Hussain v. Abdul Rehman Kazi 1983 SCMR 471; M. Imamuddin v. Surriya Khanum PLD 1991 SC 317 and NDFC v. Naseemuddin PLD 1997 SC 564 ref.
(d) Words and phrases---
"Default"---Connotation.
Syed Sami Ahmed for Petitioner.
Jhamat Jethanand for Respondent No. 1.
Nemo for the Remaining Respondents.
Dates of hearing: 1st April and 30th September, 1998.
JUDGMENT
Through this election petition under sections 52, 62 and 67 of the Representation of People Act, 1976 (hereinafter referred to as the Act, 1976) petitioner calls into question the election of respondent No. l as member of Provincial Assembly of Sindh from PS-45 Hyderabad-XI.
2. Petitioner as well as respondents Nos.l to 14 filed their respective nomination papers for election to the above constituency which were duly accepted and they were allowed to contest the election.
3. General Elections to the constituency took place on February 3, 1997 as scheduled, whereas official election result of the count was communicated by the Returning Officer to the petitioner on February 7, 1997.
4. As a result of the elections, respondent No.l was declared to have returned as member of the Provincial Assembly of Sindh. His victory in the election has been questioned by the petitioner on the grounds firstly that he was disqualified for election and from being elected as a member of the Provincial Assembly of Sindh for the reason that he made a false declaration with regard to his assets in the nomination form filed with the Returning Officer. It is the case of the petitioner that by reason of false declaration in the nomination form, the respondent suppressed the default in payment of wealth tax under the provisions of section 14 of the Wealth Tax Act, 1963 which brings his case within disqualification clause as contained in section 99(1)(f) of the Act, 1976. It is averred in the petition that according to the calculation made by the petitioner under expert advice, respondent was liable to pay wealth tax on his income from sugarcane crop amounting to Rs.47,10,860 and Rs.64,68,822.50 for the years 1994-95 and 1995-96 respectively. On such income, according to the petitioner, respondent was liable to pay Rs.92,186 as wealth tax in addition to penalty at the rate of Rs.200 per day for not filing wealth tax return with the relevant authorities.
5. Petition was resisted by the respondent who filed a parawise written statement denying the default in payment of any tax or making of a false declaration in his nomination form. Valuation of the net wealth of the respondent and his minor children, according to the relevant rules for the years 1994 to 1996 has been described as under:
| 1994-95 | 1995-96 | 1996-97 |
| Rs.8,50,000 | Rs.8,01,000 | Rs.9,40,000 |
As regards agricultural income, the respondent explained that valuation per produce Index Unit for the years 1994,1995 and 1996 was Rs.200, Rs.250 and Rs.400 respectively. He asserted that he himself and his minor children had taken loans worth Rs.9,00,000 in the year 1994, Rs.15,00,000 in the year 1995 and Rs.30,00,000 in the year 1996 from M/s. Shah Murad Sugar Mills, therefore, he was not liable to pay the wealth tax: He further pointed out that he was served with notice by the Deputy Commissioner of Income-tax, Tando Muhammad Khan and he had submitted all the returns and details before the said officer and that his net wealth and tax payable thereon was yet to be determined. While denying the calculation made by the petitioner for payment of wealth tax, respondent urged that he was neither liable to pay any wealth tax nor is his case covered by the mischief within clause (f) of subsection (1) of section 99 of the Act, 1976.
6. On the pleadings of the parties, following issues were settled:
(i) Whether respondent No. l was disqualified for the time being under the law from being elected as a member of the Provincial Assembly of Sindh?
(ii) Whether the petition, as framed, is maintainable under the law?
7. In support of his case, petitioner examined himself, Muhammad Rafiuddin Haider, Chartered Accountant and Sultan Siddiqui, District and Sessions Judge, Hyderabad (to produce the nomination form of the respondent alongwith relevant Annexures). On his part, respondent examined himself and produced intimation regarding wealth tax/income-tax proceedings, dated 19-2-1997 issued by Assistant Commissioner of Income tax, Tando Muhammad Khan. Final arguments in this petition were concluded on 1-4-1998 and judgment reserved but before the judgment could be announced, petitioner moved C.M.A. C-1 of 1998 under section 476, Cr.P.C. for prosecution of the respondent for committing purgery within the meaning of section 193, P.P.C. to which a counter-affidavit was filed by the respondent. Hearing of this C.M.A. was delayed due to summer vacations of High Court for nine weeks and nomination of the undersigned to sit at Larkana Circuit Court immediately after close of the vacation for a period of four weeks.
8. I have had the privilege of hearing learned counsel for the parties at quite some length and going through the relevant evidence on record. My findings are as under for the following reasons.
9. Syed Sami Ahmed, learned counsel for the petitioner, heavily relied upon and referred with all emphasis at his command, the provisions contained in section 99(1), clause (f) of the Act, 1976. This clause precisely lays down that a person shall not be qualified to be elected or chosen as a member of an Assembly unless he is sagacious, righteous, non-profiligate, honest, ameen and pays his debts and taxes specified in subsection (2) of section 12. Section 12 of Act, 1976 pertains to nomination for election while subsection (2) thereof enumerates a list of declarations and statements to be appended to every nomination to be signed by both the proposer and the seconder and shall on solemn affirmation be made and signed by the candidate himself. Clause (v) speaks of a declaration that he, his spouse or dependent children or dependent parents or a business concern mainly owned by the aforesaid have not made any default in payment of taxes for over six months. It is pertinent to note that subsection (2) of section 12 and clause (t) to subsection (1) of section 99 were substituted by Representation of People (Fourth Amendment) Ordinance No.CXII of 1996.
10. In order to re-enforce his submission, learned counsel for the petitioner referred to the valuation of properties declared by the petitioner at the time of submitting his nomination form in which he declared present value of the agricultural land in the name of his dependent child Miss Zainab as Rs.4,00,000, value of the land in name of dependent child Abdul Sattar as Rs.48,00,000, value of land in the name of Abdul Razzaq Rs.54,00,000, value of land in the name of Abdul Rauf Rs.51,98,000, valuation of bungalow situated in Gizri, Phase-IV, DHA as Rs.100,00,000 (but claiming ownership to the extent of 3/10 share) and valuation of bungalow situated at Tando Muhammad Khan as Rs.75,00,000 (claiming 3/14 share in it), whereas in the written statement he had shown the value of his house at village Jinhan Soomro as Rs.2,00,000 being its purchase price and its market value as Rs.10,00,000 and in affidavit-in-evidence declared its value as Rs.50,000. Likewise as against the valuation of the bungalow at Gizri as against price of Rs.100,00,000 declared in the nomination form claiming 3110 share being share of his three minor sons as Rs.6,60,000 in the written statement as well as in his affidavit-in-evidence. With regard to the bungalow at Tando Muhammad Khan, valuation in the nomination form was declared as Rs.75,00,000 while in the written statement as well as affidavit-in- evidence he had claimed it to be worth Rs.2,00,000. On being confronted with this contradictory valuation, respondent in his evidence, explained that the discrepancy with regard to the valuation of his house at village Jinhan Soomro is due to ignorance; valuation of shares of three minor sons in the bungalow at Gizri as well as Tando Muhammad Khan are shown under the Income-tax Laws for the year 1996-97. Respondent did not remember if he had shown golden ornaments at Rs.1,00,000 and value of silver ornaments at Rs.7,000 in his nomination form though he admitted that he declared the cash in hand as Rs.65,000. He conceded that he did not pay any income-tax or wealth tax after 1974-75 because he was not liable to pay it and expressly denied suggestion that on the date of filing his nomination form, he was liable to pay Rs.1,17,186 as wealth tax. He denied the sugarcane income worth Rs.47,10,860 in the year 1994-95 or Rs.64,68,822.50 in the year 1995-96. He disputed the suggestion to the effect that he was liable to pay wealth tax for a number of years or that he had committed a default or made a false statement in his evidence. The explanation offered by the respondent during the course of his cross-examination was not elaborated further as no questions suggesting to the contrary were put to him. This may lead to a justifiable inference that the petitioner remained contented with the elaborate explanation and clarification in respect of two divergent statements as to the valuation of his assets by the respondent. Indeed respondent made no secret of the fact that he had declared the purchase value as well as the market price of the assets held by him as well as held in the names of ins minor sons in good faith but at the stage of hearing of this petition before this Tribunal, he mentioned the value of the, assets in his pleadings and consistently in his evidence according to the Income-tax Laws. The point advanced at the Bar on his part is that the petitioner being unmindful of legal and statutory implications gave the value of the properties as held by him in good faith to the person who typed out the relevant columns in the nomination form as well as prepared the accompanying statements without any ulterior design and motive to make a false declaration. However when the stage became ripe for answering the allegations levelled in the election petition, he was under legal advice obliged to evaluate his assets that may be relevant and admissible under the various taxation laws. It would, thus, appear that there was no intentional and deliberate act of omission and commission on the part of the respondent or a mens rea to make wilfully and knowingly a false statement as misunderstood by the petitioner. This hypothesis is consistent with the notice issued by the tax authorities calling upon him to intimate his national tax number for his assessment for income-tax and wealth tax under the Income Tax Ordinance, 1979. He accordingly raised this plea of fact in his written statement with an addition that he had submitted requisite returns and statements before the relevant Tax Officer at Tando Muhammad Khan, which remained under process and consideration. Reliance is placed on a case from Lahore jurisdiction reported as Fateh Muhammad v. Additional Commissioner (1993 CLC 1248) taking the view that admission made erroneously or in ignorance of the rights of maker or law was not binding on maker thereof, if same could be shown to have been made under mistake of fact and was otherwise erroneous. Same view was expressed in Qabil Shah v. Shadey (PLD 1992 Peshawar 144).
11. Expression "default" connotes an element of wilful and deliberate failure to fulfil an obligation and negligence in the performance of the duty Every failure on the part of a person without any ulterior design land mala fide intention would not equate with the expression "default" as used in its strict legal sense. Before a person is declared to be in default, it is absolutely necessary that there should have been a demand to make payment of a determined sum, which should have remained unresponded and unattended for a period beyond the period prescribed by law. Issue of "default" in the context of Rent Laws was set at rest in the famous case reported as Ghulam Muhammad Lundkhor v. Safder Ali (PLD 1967 SC 530). In the words of the apex Court the word "default" in legal terminology necessarily imports an element of negligence or fault and means something more than mere non- compliance. To establish default one must show that the non-compliance has been due to some avoidable cause, for a person who ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus, unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle also the expression "default' should mean an act done in breach of a duty or in disregard of an order or direction. This view was followed in the subsequent cases reported as Muhammad Hassan Khan v. Mirza Abdul Hamid (1981 SCMR 799), Irshad Hussain v. Abdul Rehman Kazi (1983 SCMR 471), M. Imamuddin v. Surriya Khanum (PLD 1991 SC 317) and NDFC v. Naseemuddin (PLD 1997 SC 564). .
12. In the case in hand, notwithstanding variations in the statements made by the respondent and the evidence of Muhammad Rafiuddin Haider, a Chartered Accountant, that the respondent was liable to pay a specific amount by way of wealth tax in view of the declaration of assets voluntarily submitted by him, in my view, this is a subject exclusively within the domain and authority of Taxation Authorities who may be seized of the matter. Unless the Taxation Authorities have assessed the valuation of the assets of the respondent, determined the tax due and payable thereon, it is neither lawful nor warranted in the circumstances to usurp the powers of these authorities and to accept the assessment carried out by the petitioner through a tax adviser or to hold the respondent a defaulter in payment of taxes due against him. I think this Tribunal is not possessed of the power of Taxation Authorities and it cannot assume the role and jurisdiction to assess the valuation of the assets of the respondent and render him liable to payment of tax which in law is available to hierarchy in Tax Authorities under a variety of provisions contained in the Wealth Tax Act, 1963.
13. In this view of the matter, there is hardly any substance in the contentions raised in support of the ground urged to disqualify the respondent from being elected as a member of the Provincial Assembly of Sindh.
14. For the aforesaid facts and reasons, petition must fail and is accordingly dismissed with costs. With the decision of the petition, miscellaneous application seeking prosecution of the respondent for committing pergery, an offence punishable under section 193, P.P.C., must fail and I need not undertake deeper analysis of the point raised therein and the case-law relied upon therefor. Needless to say the said C.M.A. stands disposed of.
Q.M.H./176/E/(Trib.) Petition dismissed.