P L D 1968 Lahore 705 (PLP)

INAMULLAH KHAN, C. J.‑

This is a petition under Article 98 of the Constitution. The facts are these. Rahim‑ud‑Din, petitioner challenged the election of Bashir Ahmad respondents. to the electoral college from Electoral Unit No. 440, on the ground that he was disqualified within the meaning of Article 5 (a) of the Elective Bodies (Disqualification) Order, 1959, hereinafter called the Order, read with section 53 of the Electoral College Act, 1964, to be referred to as the Act. The petitioner alleged that the respondent was a Patwari and was removed from, service by order of the Collector dated 1‑7‑64, on the ground of misconduct and corruption. It would appear from the order of the Collector that Bashir Ahmad used to receive money for demarcation of land as bribe and that he had abducted one Mst. Fatti and had ultimately forcibly married her. The Collector found the grounds established and ordered that his services should be dispensed with and his name be removed from the list of Patwaris. The order of the Collector was maintained by the Commissioner on appeal. By his order dated the 19th of July 1966 under section 54 of the Act the Deputy Commissioner dismissed the application of the petitioner. The order of the Deputy Commissioner is not quite clear. His reasoning for dismissing the application of the petitioner is summed up in paragraph 5 of his order, which runs as under:‑-- "Since the application has been made under rule 34 and. reliance is placed on the provisions of sections 53 and 54 of the Electoral College Act, though also read with Article 5 (a) of the Elective Bodies (Disqualification) Order, 1959, the remedy is not open to the petitioner inasmuch as the all important phrase in section 54 is `has become'. The operative part of rule 34 of the Electoral College Rules has also beer: referred to and it has been emphasised that the inquiry envisaged in the rule is to come about only when a member has become disqualified and since in this case the respondent did not `become disqualified' the rule and the sections would not be applicable."

2. It would appear from the above that the Deputy Commissioner refused to exercise his jurisdiction under section 54 of the Act read with rule 35 of the Electoral College Rules, 1964, hereinafter to be referred to as the Rules, on the interpre tation of the words "has become disqualified" occurring in section 54 of the Act. According to the Deputy Commissioner, section 54 of the Act would come into operation only where a person has suffered from a disqualification only after he has been elected. In other words, if the elected person already suffered from a disqualification within the meaning of section 53 of the Act, the Deputy Commissioner cannot disqualify him under section 54 ibid. There is not much force in this conclusion. Sections 53 and 54 of the Act must be read together. Section 53 reads as under:‑-- "(1) A person shall be disqualified from being, or being elected as, a member of the Electoral College for any electoral unit if‑ (h) he is, for the time being, disqualified from being a member of an elective body under the Elective Bodies (Disquali fication) Order, 1959 (P. O. No. 13 of 1959), or any other law for the time being in force." Article 5 of the Order reads as under:‑-- "Notwithstanding anything contained in this Order, or in any other law, a person shall stand disqualified until the thirty‑first day of December 1966, for being a member or a candidate for the membership of any elective body,‑ (a) if he is dismissed, removed or made to retire from the service of Government or of a public Statutory Corporation, on a charge other than that of inefficiency." "Elective body" is defined in Article 2 of the Order, and "electoral college" is included in the definition of elective body. On the face of it, Bashir Ahmad respondent having been removed from service on the ground of misconduct and corruption was disqualified within the meaning of Article 5 of the Order up to the 31st day of December 1966.

3. Section 53 of the Act is mandatory. It lays down that a person shall be disqualified from being a member of the electoral college if he is for the time being disqualified from being a member of an elective body under the Order. On a fair analysis of section 53 (h) of the Act it would appear firstly that a person who has been elected to the electoral college shall be disqualified from being a member of the same if he is for the time being disqualified under the Order. In other words, where the disqualification may have escaped scrutiny by anyone and is discovered later on the member to the electoral college can be disqualified. In the second place all that section 53 of the Act requires is that a member of the electoral college shall be .4 disqualified if he is for the time being disqualified under the Order. The words "for the time being" are important to note. It would mean the time when the action is being taken against the member under section 54 of the Act. Section 53 read with section 54 envisages a situation where the disqualification may have escaped the notice of the interested party but is discovered later on. The intention of the framers of the Act and the rules could not be to let go a person who managed to keep his disqualification a secret at the time of the election. We are of the view that the Deputy Commissioner should have exercised his jurisdiction under section 54 of the Act read with rule 34 of the rules to consider the application of the petitioner. In refusing to exercise his jurisdiction the Deputy Commissioner acted unlawfully.

4. The learned Advocate for the respondent very strenuously contended that Bashir Ahmad is no longer under any disqualification as the same extended only up to 31‑12‑66, and, therefore, the Deputy Commissioner cannot disqualify him now. There is no force in this contention. The provision contained in section 53 of the Act is substantive law and not procedural to After the order of the Deputy Commissioner is quashed he would be required to deal with the application according to the law as it stood on the date of the application. If the Deputy Commissioner had applied the law correctly he would have disqualified Bashir Ahmad and certain consequences would have followed. The Deputy Commissioner, when we set aside his order, should deal with the application not as a fresh application but as an application filed on 29‑1‑66.

5. For the reasons given above, we would hold the order of the Deputy Commissioner dated 19‑7‑66 to be without lawful authority and direct‑him to dispose of the application in the light of the observations that we have made above. There will be no order as to costs. R. M. A. Petition accepted.