2002 PLP 2318 (YLR)

4. On the other hand, learned counsel for respondents Nos.2 arid 3 contends that such an objection, cannot only be raised before the Election Tribunal but the same can also be raised before the Chief Election Commissioner under section 152(2). It is further submitted that a holder of public office can even be called upon through a writ of quo warranto to explain as to under what authority of law he is holding such an office. It is thus concluded that, if for one reason or the other such an objection was not raised at the time of the scrutiny of the nomination papers, a person otherwise disqualified under the law cannot be allowed to remain in the office. It is further submitted that the moment petitioner No. 1 was notified as elected Nazim on 6‑1‑2001 by the Election Authority, Dera Ghazi Khan, petitioner No. 1, not only became the Nazim of the Union Council but by operation of law under section 37 of the Punjab Local Government Ordinance, 2001, became a member of the Zila Council as well. The notification was published in the official Gazette on 26‑5‑2001, therefore, even on this date petitioner No.1 was still continuing as a contractor of the Zila Council. It is further added that the provision of section 152 (1)(o) of the Punjab Local Government Ordinance, 2001, is the verbatim reproduction of section 14(o) of the Punjab Local Government Elections Ordinance, 2000, and the contention is that the said provisions are not happily worded, as at the end of the said provision instead of the word 'member' the word 'candidate' should have been there. If this provision is read with the nomination form for Nazim and Naib‑Nazim for Union as Joint candidate "Form‑III (B) Clause (D)(2) attached with the Punjab Local Government Election Rules, 2000, it becomes clear that this provision is meant for the candidates and not for elected members. The relevant extract is as follows:‑ "D: Declaration by Joint Candidates.‑‑‑(2) That we have carefully read the qualification for being candidate as member and as a Nazim or a Naib Nazim of a Union, provided under section 14 of the Punjab Local Government Elections Ordinance, 2000 and the Election Rules made thereunder." It is finally argued that it would be' an absurdity in law, if a person who is disqualified at the time of election is allowed to contest the election but later on he is refused to act as an elected representative on the ground that he was disqualified at the time of his election. Therefore, it is argued that the disqualification contained in section 152(1)(o) of Punjab Local Government Ordinance, 2001, is not a post election disqualification.

5. In reply, the learned counsel for the petitioner contends that the qualifications given in section 152 are not only relatable to the candidates but also to the elected members, as some of these are post election disqualifications apart from clause (o), clauses (m), (p) and (q) are also post election disqualifications whereby an elected member can be non‑seated after the election for certain acts or omissions on his part. The relevant provisions are as follows:‑ "Qualification for candidates and elected members.‑‑‑(1) A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he ‑ (a) ‑‑‑‑-- (m) has not failed to file the required return of election expenses or is not convicted for exceeding the limits of election expenses prescribed under the electoral laws; (o) does not engage in any transaction involving pecuniary interest with the local government of which he is a member; (p) does not absent himself without reasonable cause from three consective meetings of the council of which he is a member; provided that a member shall not be disqualified if the absence was necessitated by a national emergency or force majeure; (q) does not fail to attend a training course as required under section 189 of this Ordinance."

6. I have considered the arguments of the learned counsel for the parties.

7. Before embarking upon the merits of the case, it would be advantageous to evaluate that which provisions of the two Ordinances i.e. Punjab Local Government Ordinance, 2001 and Punjab Local Government Elections Ordinance, 2000 are not applicable.

8. Sections (1)(3) of the Punjab Local Government Ordinance, 2001 reads as follows:‑‑ "Short title, extent and commencement. ‑‑‑(1) This Ordinance may be called the Punjab Local Government Ordinance, 2001. (3) It shall come into force on the fourteenth day of August, 2001, except the provisions as contained in section 39(k), Chapter XVII and section 196 (1)(ii) of Chapter XIX which shall come into force on such date or dates as the Government may, by notification in the official Gazette declare. " While section 196 reads as follows:‑ "Repeal and Savings.‑‑‑(1) On commencement of this Ordinance. (i) .......... (ii) the Punjab Local Government Elections Ordinance, 2000 (V of 2000) shall be repealed; and (iii) ............. (2) Notwithstanding the repeal of the Punjab Local Government Ordinance, 1979 (VI of 1979), and dissolution of all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979), under subsection (1), subject to sections 4 and 23 of the Punjab General Clauses Act, 1956 (W.P. Act VI of 1956) all rules, regulations and bye laws made under the repealed (Punjab) Local Government Ordinance, 1979, so far those are not inconsistent with the provisions of this Ordinance shall continue to be in force until amended or varied by the competent Authority: Provided that, until otherwise decided by the Government, the Local Government Boards established under the Punjab Local Government Ordinance, 1979 (VI of 1979) for the administration of officers and officials of the Local Council Service shall continue to function. (3) Notwithstanding the repeal of Punjab Local Government Elections Ordinance, 2000 (V of 2000) all Nazims, Naib Nazims, and members of the Local Government elected under the said Ordinance shall be deemed to have been elected under this Ordinance and shall continue to hold their respective offices till the completion of their terms, unless earlier removed, resigned or recalled under this Ordinance."

9. It is agreed by the learned counsel for the parties that no notification as required under section 1 (3) has so far been issued by the Government. Meaning thereby that sections 148 to 179 of the Punjab Local Government Ordinance, 2001 have not yet come into force, further the Punjab Local Government Election Ordinance, 2000, has also not been repealed. Consequently, the Punjab Local Government Election Rules, 2000 framed under the Punjab Local Government Elections Ordinance, 2000 'are also still operative. The title of section 14 of the Punjab Local Government Elections Ordinance, 2000, relates to the qualifications for "Candidates" and "Elected Members". Meaning thereby that this provision is meant for the both. If the legislature can use both words i.e. "candidate" and "elected members" in the title of the section then there is no reason to interpret the word "member" given in its clause (o) to read it as "candidate". Likewise opening lines of section 14 of the Punjab Local Government Elections Ordinance, 2000 are; a person shall qualify to be elected or to hold an elective office or membership of local government, if he, ‑‑‑. Thus it is evident that the qualifications and disqualifications given in this section are applicable to the candidates before election and the elected members after they assume the office. The words "qualified to be elected" are relatable to the candidates for election while the words "hold an elective office or membership" are applicable to the persons who assume their office after having been returned. The purpose of construction or interpretation of statutory provision is no doubt to ascertain the true intention of Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those words are so clear and unmistakable they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the Courts are not concerned with the consequences of the interpretation, however, drastic or inconvenient the result, for the function of the Court is interpretation, not legislation.

10. It is evident from section 181 (1)(4) of the Punjab Local Government Ordinance, 2001 that the petitioners assumed their officer for all practical purposes on 14‑8‑2001, while lie has seized to be a contractor or Zila Council since 30‑6‑2001, therefore, it cannot be said that petitioner No.1 was having any pecuniary interest with the local council of which he is a member by assuming office on 14‑8‑2001. While disqualification contained in clause (o) of section 14 of Punjab Local Government Elections Ordinance, 2000, will only come into play against the petitioners, if it can be proved that petitioner No.1 was engaged in any transaction involving pecuniary interest after 14‑8‑2001.

11. So far as the objection of the learned counsel for the petitioner that no such objection was raised at the time of scrutiny of the nomination papers and the same cannot be now raised through an election petition, is concerned, I am unable to agree with the learned counsel for the simple reason that if a person is disqualified under the law to contest an election and no objection could be raised at the time of scrutiny for lack of knowledge or information to his adversaries or if a disqualified person gets elected un‑opposed, as in such circumstances, there is no occasion for raising objection by anybody at the time of scrutiny, it cannot be said that at the later stage he should continue holding an elective office despite the fact that he is not qualified to hold the same. In such eventuality, even any citizen can throw challenge to the holding of his office through a writ of quo‑waranto. The judgment relied upon by the learned counsel for the petitioner is on some what different premises and is distinguishable from the facts and circumstances of the instant case.

12. The contention of the learned counsel for respondents Nos. 2 and 3 that disqualification contained in clause (o) of section 14 of Punjab Local Government Elections Ordinance, 2000 read with the declaration of the nomination form, indicates that the disqualification is for the candidates and not for the elected members. For advantage, part of the declaration is again reproduced as follows:‑ "(2) That we have carefully read the qualification for being candidate as member and as a Nazim or a Naib Nazim of a Union, provided under section 14 of the Punjab Local Government Elections Ordinance, 2000 and the Election Rules made thereunder. " This contention of the learned counsel cannot be accepted because the petitioners had signed this declaration for merely becoming candidates, while all the provisions of section 14 of Punjab Local Government Elections Ordinance, 2000, are not applicable to the candidates alone but also to the members.

13. The contention of learned counsel for respondents Nos.2 and 3 that allowing a disqualified person to contest an election and thereafter disqualifying him after being elected is an absurdity in law, is also without any substance. The object of clause (o) of section 14 of Punjab Local Government Elections Ordinance, 2000 is simple that a person who has become a member of the council and he does not severe all his pecuniary interests with the said local council and retains or thereafter creates such interests, after assuming his office as member, then, of course, he can be deseated on the strength of this provision.

14. In the circumstances narrated above, it is evident that like clauses (m), (p) and (q) of Punjab Local Government Elections Ordinance, 2000, the clause (o) is also a disqualification which comes into play after any elected person has assumed as a member. Since in the instant case the petitioner No.1 had assumed his office as a Nazim/Member Zila Council on 14‑8‑2001, therefore, he cannot be said to be disqualified.

15. For what has been discussed above, this petition is allowed. No order as to costs. Petition allowed. Q.M.H./M.A.K./E‑22/L