P L D 1981 Karachi 38 (PLP)

NAIMUDDIN, J.‑This is a constitution petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, filed by Abdul Hakeem against the Election Authority, Sind, respondent No.

1. The Returning Officer, Constituency No. TDA‑9, and, B. Khanzada Muhallah, respondent No. 2, and two others mentioned hereinafter. The petitioner was a candidate from Constituency No. TDA‑9, Ward B, Khanzada Muhallah for election as a Councillor to Tando Allahyar Municipality in the elections held in the year 1979, under the Sind Local Government Ordinance, 1979 (Sind Ordinance XXII of 1979), hereinafter called the Ordinance). He contested the election, Muhammad Ismail son of Subhan, respondent No. 3, and Abdul Rashid son of Haji Meena, respon dent No. 4, being the other candidates. According to the statement annexed to the petition the petitioner and the other two candidates secured votes as mentioned hereinafter (1) Abdul Hakeem 79. (2) Muhammad Ismail 115. . (3) Abdul Rashid

46. Since respondent No. 3 had secured the highest number of votes he was declared elected to the Municipality by respondent No.

2. The petitioner has challenged the election of respondent No. 3 on the ground that respondent No. 3, being a ration depot‑holder, was disqualified to file the nomination paper in view of the provisions of section 37(2)(e) of the Ordinance. We have heard Mr. Muhammad Sharif Khattak, Advocate for the petitioner. The learned counsel for the petitioner submits that respon dent No. 3 was disqualified to be elected to the municipality as he was an ration depot‑holder. In support of this submission he relied on clause (e) of subsection (2) of section 37 of the Ordinance which provides that a person who is under contract for work to be done or goods to be supplied to the Council concerned or has otherwise any pecuniary interest in its affairs is not qualified to be elected to such Council. Clause (e) of subsection (2) of section 37 reads as follows: "(e) he is under contract for work to be done or goods to be supplied to the Council concerned or has otherwise any pecuniary interest in its the affairs." However, the question does arise whether a ration ‑ depot‑holder as such i under contract for work to be done or goods to be supplied to a Council or otherwise has any pecuniary interest in its affairs. The learned counsel has not been able to refer us to any provision in any law including The West Pakistan Wheat, Wheat Atta, Maize, and Sugar Distribution Order, 1967, or the West Pakistan Foodstuff Distribution Order, 1967, or the Foodstuff Distribution Order, 1978 (M. L. A. Zone `C' No. 57), under which a ration‑ depot‑holder simpliciter could be said to B have any contract for supply of goods or work with or pecuniary interest in x Council. In order to be disqualified under section 37(2) of the Ordinance, a candidate must have some contract with or interest in a Council or Municipality. It is not the petitioner's case that respondent No. 3 has otherwise, any contract with or interest in the Municipality, we are therefore, unable to' hold that respondent No. 3 was disqualified from being a candidate or chosen as a member of Tando Allahyar Municipality. The learned counsel for the petitioner however, relied on a Full Bench decision of Lahore High Court in Sardar Mohammad Jafer Khan Leghari v. The Election Commission of Pakistan and others (1). In this case the nomina tion paper of the petitioner who was a ration depot‑holder for election to the Provincial Assembly Constituency No. PP. 186 D. G. Khan‑111, was accepted by the Returning Officer. In spite of challenge to the same on the ground that the petitioner in the cited case was disqualified under Article 10(2), (b) (8) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, from being a candidate. However, the order accepting the nomination paper was set aside on appeal, by the Member of Election Commission. In the petition filed in the High Court against the order of the Member of Election Commission the order was upheld by the High Court. It was held that the petitioner being a depot‑holder, under the West Pakistan Wheat, Wheat Atta, Maize, Rice and Sugar Distribution Order, 1977, had a share or interest in the contract for the performance of a service undertaken by the Government and was thus hit by Article 10, (2) (b), (8) of the P. O. No. 5 of 1977, and was disqualified .from being elected or chosen as a member of the Assembly. It will be useful to reproduce hereinbelow a portion of the relevant observations:‑ "Now, the relevant provisions of sub‑Article (2) of Article 10 of the President's Order No. 5 of 1977, can be read for the purpose of this case as follows:‑ A person shall be disqualified from being elected or chosen as and from being a member of Parliament, if he has any share or interest in a contract for the performance of any services undertaken by the Government." Independently of what the Indian Courts have held in this behalf, we are of the opinion that the distribution of food-grains is a service undertaken by the Government. And in view of the fact that a depot‑holder has no choice either in the matter of fixing the prices or choosing the customers or prescribing any limit for the quantity to be sold to any particular consumer, he cannot be said to be a mere licensee in the general sense of the word. He has to carry out the distribution exactly in accordance with the terms laid down by the Government and the consideration that he receives for this service is the difference of purchase and sale prices both of which are predetermined by the Government. We, therefore, hold that a depot‑holder "has a share and interest in a contract for the performance of a service undertaken by the Government". The petitioner is, therefore, squarely hit by the Article 10(2) (b) (8) of the P. O. No. 5 of 1977, and the learned Member of the Commission, who heard. the appeals, rightly disqualified him. But in the case before us it has not been shown that a ration depot‑holder as such has any pecuniary interest in the affairs of the Council or Municipality or is under any contract for work to be done or goods to be supplied therefore, the case cited by the learned counsel for the petitioner is clearly distinguishable. Mr. Khattak also placed reliance on the decision of Dr. Nasim Hassan Shah, J., sitting as Member, Election Commission, in Hafiz Allah Ditta Khan v. Sardar Muhammad Jaffer Khan Leghari (2). In this case, also paragraph 4 of the West Pakistan Wheat, Wheat Atta, Maize, Rice Distribution Order, 1967, read with clause 10(2) (B) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, came to be considered in: relation to the candidature of a ration depot‑holder with the same result as in the Full Bench decision of Lahore High Court mentioned hereinabove. This case too is distinguishable for the same reason as given above. (1) P L D 1978 Lah. 76 (2) P L D 1977 Jour. 323 We, therefore, find no substance in this petition which is hereby dismissed. M. Y. M. Petition dismissed.