1988 PLP 756 (CLC)

(h) having whether by himself or by any person in trust for him or for his benefit or on his account, any share or interest in a contract for:‑‑ (i) the supply of goods to, or (ii) the execution of any work, or (iii) the performance of any service, undertaken by the Government, or a local authority or an autonomous body in which the Government has a controlling interest, he does not, after his election as a member but before making Oath, as such, make a declaration in writing to the Commissioner that he has such share or interest, unless a period of five years has elapsed since his failure to do so, or

As I read this provision about disqualification, it is not a disqualification under this provision for a candidate to have an interest in a contract, falling within any of the categories mentioned therein, with the Government or a local authority but, under this provision, if a person, who has been elected as a member, fails to file the requisite declaration in writing to the Commissioner before making the Oath as such member, he shall stand disqualified from being the member of the Assembly. If section 99 (1) (h) of the Representation of the People Act, 1976, applies to the election in question, respondent No.2 stands disqualified from being the member of the National Assembly, as there can be no doubt that respondent No.2 has not filed the declaration. This is so because, in his written statement, respondent No.2 had taken a categorical stand that on the nomination day he did not have any share in any contract with any local authority and for nearly two years he was attempting to adduce evidence to that effect. If all along this was the stand of respondent No.2, till he took a somersault and filed his statement before this Tribunal on 9th May, 1987 referred ‑to earlier respondent No.2 cannot take up the plea that he had filed the declaration required to be filed with the Commissioner under section 99 (1) (h) of the Representation of the People Act, 1976. Mr. Gulab Rang, learned counsel for respondent No.2, had argued that even if section 99 (1) (h) of the Representation of the People Act, 1976, is applicable, without, amendment of the memo of this election petition specifically alleging that the declaration required by section 99 (1) (h) had not been filed by respondent No. 2 and without a specific issue on this point, thus question cannot be decided against respondent No.2. It was argued that this plea on behalf of the petitioner has taken the respondent No.2 by surprise. A perusal of the memo of petition shows the specific reference has been made about section 99 (1) (h) therein and in fact the entire clause of section 99 (1) of the 1976 Act has been reproduced in para 5 of the memo of petition. Then issue No.l framed in this petition on 23rd September 1985 will cover the question of disqualification under section 99 (1) (h). Arguments in this behalf by Mr. Gulab M. Rang, therefore, has no force.

3. The main question which requires consideration in this petition is whether section 99 (1) (h) of the Representation of the People Act, 1976 is at all applicable to the case of respondent No.2. It was submitted by Mr. Gulab M. Rang that the elections held on 25th February, 1985 to the National Assembly were held under P.O. 5/77. This submission is correct. Preamble of P.O. 5/77 and various Articles thereof specially Article 3 about time of elections, article 7 relating to Oath to be taken by the elected members in the from set out in the schedule to P.O. 5/77, provisions 'about qualification and disqualification for membership in P.O. 5/77, Article 17 summoning of assemblies, show that the general elections of February 1985 were held under P.O. 5/77. Article 24 of P.O. 5/77 and Article 270‑B of the Constitution make it absolutely clear that the said elections were held under P.O. 5/77. Now, Article 10 of P.O. 5/77 lays down the qualifications and disqualifications for membership of the Parliament which includes the National Assembly. As the general elections of February 1985 have been under P.O. 5/77 and this President's Order makes detailed provisions about disqualification for membership of the Parliament including the National Assembly, it follows that if respondent No.2 is to be disqualified, his case must fall within the mischief of the provisions of P.O. 5/77 relating to disqualification of membership of National Assembly. On a perusal of P.O. 5/77 it is found that Article 10 (2) (b) (8) thereof relates to interest of candidates in contracts but this clause relates only to Government Contractors and makes no provision for disqualification in relation to contract with local authorities. In his arguments, Mr. Fakhruddin G. Ebrahim, learned counsel for the petitioner had not pressed the case of the petitioner that respondent No.2 had a subsisting contract on the relevant date with the Government. The case was that respondent No.2 had interest in firms which had subsisting contracts with local authorities and this fact was admitted by respondent No.2. No case has, therefore, been made out that respondent No.2 was disqualified under Article 10 (2) (b) (8) of P.O. 5/77.

4. However, learned counsel for the petitioner relied upon Article 10 (2) (b) (76) of P.O. 5/77 to argue that, by this clause, section 99 (f) (h) of the Representation of the People Act, 1976 becomes applicable. Article 10 (2) (h) (76) of P.O. 5/77 is as follow:‑ "he is for the time being disqualified from being elected or chosen as a member of Parliament or of a Provincial Assembly under any law for the time being in force." It was submitted on behalf of the petitioner that the Representation of the People Act, 1976 is a "law for the time being in force" and, under section 99 (1) (h) of this law, respondent No.2 stands disqualified for the reason that he had not filed the requisite declaration before taking oath as member of the National Assembly. For two reasons, I am of the view that a candidate, who has been elected to the National Assembly in elections held under President's Order 5/77, cannot be disqualified under section 99 (1) (h) of the Representation of the People Act, 1976. Firstly, according to me, a candidate who has been elected to the Parliament in elections held under P.O. 5/77 can be disqualified if his case falls under any of the disqualifications specified in P.O. 5/77 or under any other law for the time being in force except the Constitution and the Representation of the People Act, 1976. In the Constitution, disqualifications for membership of the Parliament are specified in Article

63. In the Representation of the People Act, 1976, it is section 99 and in President's Order 5/77 it is Article

10. A perusal of the provisions of the aforesaid three legal instruments shows that several of the disqualifications in Article 63 of the Constitution and section 99 of the Representation of the People Act, 1976 have been retained in Article 10 of P.O. 5/77 but others have not. Disqualification in section 99 (1) (h) of the 1976 Act has not been retained as a disqualification in Article 10 of P.O. 5/77. The intention of the Legislature enacting P.O. 5/77 is obvious and that is that disqualifi cation under section 99 (1) (h) and any other disqualifications under the Representation of the People Act, 1976 and the Constitution which have not been retained as disqualifications in P.O. 5/77 are not attracted to disqualify a candidate in the election held under P.O. 5/77. Reference in Article 10 (2) (b) (76) of P.O. 5/77 to "any other law for the time being in force" is to all other existing laws except the Constitution and the Representation of the People Act 1976. Even if the contention of learned counsel for the petitioner to the effect that the words "any other law for the time being in force" in Article 10 (2) (b) (76) of P.O. 5/77 include the Representation of the People Act 1976, then also disqualification under section 99 (1) (h) of the 1976 Act will not be attracted to disqualify respondent No.2. For appreciating this, reference may again be made to the words employed in Article 10 (2) (b) (76) of P.O. 5/77 which is as follows: ‑ "he is for the time being disqualified from being elected or chosen as a member of Parliament or of a Provincial Assembly under any law for the time being in force." The relevant words here are "disqualification from being elected or chosen as a member of Parliament". Section 99 (1) (h) of the 1976 Act does riot make any provision which disqualifies any candidate from being elected or chosen as a member of the Parliament. It is a provision which comes into play after the candidate has been elected. To be precise, it is attracted when the elected member takes oath after he is duly elected. Therefore, no help can be taken by the petitioner from section 99 (1) (h) of the Representation of the People Act, 1976 for unseating respondent No.2. In my view, a candidate who has been elected to the Parliament in the elections held under President's Order 5/77 cannot be disqualified and unseated under section 99 (1) (h) of the Representation of the People Act, 1976 as this provision is not applicable to such elections.

5. As a result, Election Petition No. 5/85 is dismissed but with no order as to costs. S.Q./22/E Petition dismissed.