P L D 1978 Lahore 1 (PLP)

3. Mr. Javed Hashmi, learned Advocate in support of the petition has raised a number of points inter alia that on the reconstitution of the firm the petitioner ceased to be the partner and therefore by so doing he put an end to the disqualification ; that respondent not having raised the objection at the scrutiny was estopped to institute an appeal against the decision of the Returning Officer and that, in any case, there being nothing to show that the firm Messrs Mumtaz Traders has a running contract with F. W. O. the petitioner's case does not fall within the mischief of the disqualifying clause.

4. Mr. Gha:anfar Ali Gondal, the learned Advocate for the contesting respondent and Dr. Danishwar Malik, Advocate appearing for the Commission, on the other hand argued that the view of the learned Member of the Commission that on the facts of the case the petitioner suffers from the disqualification is correct and that, on proper interpretation of the relevant provision of the order, it would be sufficient to disqualify a candidate if it is shown that he could have "interest" in any possible "contracts" even at a future date. On facts the stand-point of the petitioner, that the firm has no running contract with F. W. O. was also, challenged.

5. Since, the last mentioned point was purely one of fact, we, by our order dated 25-9-19)7, permitted the learned counsel for the respondent to obtain information from the General Headquarters Office if the firm has any subsisting contract. On the adjourned hearing a certificate from the Director--General was produced which was to the effect that Messrs Mumtaz Traders are registered with Headquarters Frontier Works Organization as approved suppliers and that no contract has been concluded by the Organization with the former. On facts, therefore, we are satisfied that Messrs Mumtaz Traders has no running contract with the Government.

6. The question that falls for our consideration therefore, is, if, on the facts as presented, the petitioner suffers from disqualification as envisaged in Article 10(2)(6)(8) of the Order. We may read the relevant provision at once t "10(2)(b) (8) if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or a9 a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government ; Provided that the disqualification under this paragraph shall not apply to a person (1) Where the share or interest in the contract devolves on him by inheritance or succession or as a legatee executor or administrator, until the expiration of sic months after it has so devolved on him or such longer period as the President may, in any particular case, allow ; or (ii) Where the contract has been entered into by or on behalf of a public company as defined in the Companies Act, 1913 (VII of 1913), of which he is a share-holder but is neither a Director holding an office of profit under the company nor a managing agent ; or (iii) Where be is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest.

7. At the very outset of our discussion it may be made clear that device adopted by the petitioner in having the firm reconstituted and thus dropping himself out of the partnership is of no avail to the petitioner and we are inclined to agree with the learned Member that notwithstanding this, the petitioner will be deemed to be a partner of the firth unless, as provided by, subsection (2) of section 32 of the Partnership Act, the F. W. O. agrees top discharge him of the possible liabilities and unless a public notice, as required by section 72, is given. The view taken gets support from Cox v Ambrose (60 L J Q B 114)./ In this case the petitioner, a candidate in the election of the Municipal Corporation as Councilor was partner of the firm which had running contract with the Corporation I but with a view to avoid the disqualification as contained in section 12 of Municipal Corporation Act. 1882 which provision was, almost, in part materla with Article 10(2,'.(6)(8) of the Order, transferred his interest to his son. He could not successfully argue before the High Court to which the case was referred for- opinion that by so doing he had put an end to the disqualification.

8. The more important question, however, is, if on the correct interpretation of the disqualifying clause a person though registered as a contractor, comes within the mischief of the clause even, in the absence of a running contract ? The words "if he, . has any share or interest in a contract, . . for the supply of goods to, or for the execution of any contract or the performance of any services under- taken by Government", on proper analysis, show that the person in order to render himself disqualified, should have share or interest in a 'contract' for the supply of goods to or should have share or interest in the execution of the contract or the performance of any services undertaken by the Government 8 In each case the word 'contract' is to be understood in its legal sense i.e 'contract' capable of execution. If we are to accept the argument that word 'contract' also, includes a possible contract in the future, we shall have to read something which is not there and this will be against a well-settled rule of interpretation as couched in Maxwell on Interpretation of Statutes Twelfth Edition by P. St. Langan, "It is a corollary to the general rule of literal construction that nothing is to ire added to or taken from a statute unless there are adequate grounds to justify the interference that the Legislature intended something which it omitted to express. Lord Mersey said: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. Thompson v. Goodd & Co. 1910 A C 409 at p. 420 "We are not entitled," said Lord Loreburn L. C , "to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.:'- Vicker's Sons & Maxim Ltd. v. Evans 1910 A C 444, p.

445. The intention of the author that the word "contract" is used in its legal sense becomes manifest on reference to the word as used in various clauses of the proviso to the para itself. Under clause (i) the disqualification does not apply to a person on whom share or interest in the 'contract' devolves by inheritance or succession or as a legatee etc. Question of devolution of any 'interest' in a future contract does rot arise. Similarly in clauses (ii) & (iii) the phrases used are "where the contract has been entered into by or on behalf of "public company . . . ." 1 ". . . and the contract has been entered into by any other member. . . " In Cox v. Ambrose, a case noticed above, the petitioner was found to suffer from disqualification as provided under section 12 of the Municipal Corporation Act, 1882, as the firm of which he had been a partner has a running contract with Corporation. Relevant provision of section 12 of the Act reads : "A person shall be disqualified for being elected and for being a Councilor if and while he . . . . . (c) has directly or indirectly by himself or partner any share or interest in any contract or employment with, by, or on behalf of the council." Interpreting section 12 it was held "There are two questions in this case presented for our consideration. The first turns on section 12 of the Municipal Corporations Act, 1882. (His Lordship read the section t) The petitioner had entered into certain contracts with the corporation running on for a period un-expired at the time of the election. He endeavored, no doubt in good faith, to qualify himself for election as a town councilor, and to that end transferred his interest in the contracts, so far as he could, to his son. It has been contended on his behalf that by so doing he put an end to his disqualification, and we have been referred to another section, section 22, which is said to throw light on the matter. If we were to hold that that section is co-extensive with section 12, we should have to hold that section 12 was thereby repealed. I cannot agree that section 22 contemplates the possibility of a person being a member of a town council, while a contract into which he has entered with the corporation remains unfulfilled, and upon which he remains liable. Section 22 is perfectly plain, and deals with cases where there is an interest, though no contract." At page 78 cases from the Indian Jurisdiction have been noticed in 'The Law of Elections and Election Petition by Veda Vyasa and the proposition evolved is : "The mere fact that the name of a person is in the list of contractors approved by the Government does not disqualify him under section 7(d). (Rams Reddl v. Chadanandam, 3 E. L. R. 42 ; Kananji Lal Shukla v. Bhagwan Das 3 E. L. R. 1)."

9. For the reasons given above we are of the view that a candidate must be shown to have a share or interest in a subsisting contract with Government before he is held to suffer from the disqualification envisaged i " Article 10 2)(b)(8). It may be mentioned here that objection to the eligibility of the petitioner was not raised before the Returning Officer. When the question of disqualification arose before the Election Commission in appeal, the petitioner was ill-advised to focus attention on his partnership in the firm rather than on the subsistence of contract. So it appears to us that the question of the existence of a subsisting contract could not be properly thrashed out before the Commission. Consequently the learned Member of the Commission, who decided the appeal, held the petitioner to be disqualified which decision, in view of the material placed before us, is, in our opinion, without lawful authority and of no legal effect. We, therefore, allow this writ petition with no order as to costs with the result that the order of the Returning Officer accepting the petitioner's nomination papers stands restored. S. A. H. Petitions allowed.