P L D 1966 (W (PLP)

WAHIDUDDIN AHMAD, J.‑--This is a petition under Article 98 of the Constitution.

2. The petitioner contested election from Unit No. 85 of Garhi Khairo Town, District Jacobabad, and obtained 116 votes, respondent No. 3 obtained 282 votes and respondent No. 4 obtain ed 4 votes. Respondent No. 3 was declared as successful candidate in the election held on the 31st of October 1964 and elected as member of the electoral college under the Electoral College Act, 1964. The petitioner, who was one of the candidates, filed an election petition before the Election Tribunal, Jacobabad. He challenged the election of respondent No. 3 on the ground that he was not qualified to contest the election under the provisions of the Electoral College Act, 1964. He contended that respondent No. 3 was a contractor of the Town Committee, Garhi Khairo for collection of octroi for the year 1964‑65 at the time of filing the nomination paper and on the date when the result of the elec tion was declared. The learned Tribunal, by his order dated the 6th of August 1965, dismissed the petition with the following observations "In the present case the respondent No. 1, Haji Atta Muhammad (respondent No. 3 in the present petition) was not a contractor of the Town Committee for any work of the nature of construction etc., nor he had to supply any goods. Similarly, he had no other pecuniary interest in the Town Committee except that he was Contractor of the Town Committee for due performance of an act for collecting Octroi on behalf of the Town Committee for which he had to pay several thousands of rupees to the Town Committee. "Since the Contract for the Collection of octroi tax on behalf of the Town Committee was sanctioned and terms and condi tions decided long before the filing of the nomination paper or the holding of election, the small pecuniary interest, if any, extinguished after the transfer of the contract to Muhammad Ibrahim after 14th December 1964, i.e. long before the term of office of the members under the Electoral College Act came into existence or even before the oath‑taking ceremony of the members." The petitioner has challenged this order in this petition.

3. In support of the petition Mr. Nooruddin Sarki has urged that the learned Tribunal has not approached the question involved in this matter after taking into consideration the provisions of section 53 (1) (f) of the Electoral College Act, 1964. He contended that under the above‑mentioned provision of law it is not necessary that a person should be a contractor for any work in the nature of construction etc. or for the supply of any goods to a Union Council or a Town Committee; it would be sufficient for him to be disqualified for contesting an election under the said provision if he is found to have otherwise any pecuniary interest in such council or committee. In support of this contention, the learned counsel has referred us to section 53 (1) (f) of the Electo ral College Act, 1964, which 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‑ (f) he is a party to a contract for work to be done for, or goods to be supplied to, a Union Council or a Town or Union Committee within whose jurisdiction such elctoral unit is situated; or has otherwise any pecuniary interest in such Council or Committee;

4. In the present case, the admitted position is that respon dent No. 3 Atta Muhammad at the material time was a contractor of the Town Committee in question for collecting octroi on its behalf. He had obtained a contract for collecting the octroi on behalf of the Town Committee and had to pay several thousands of rupees to the Town Committee. Mr. Noorruddin Sarki con tended that, in view of this clear admitted position, it cannot be said that respondent No. 3 did not have at the material time any pecuniary interest in the Town Committee of Garhi Khairo.

5. In reply Mr. Muhammad Ebrahim Memon, the learned counsel for respondent No. 3 has urged that the view taken by the learned Tribunal is fully justified on the provision of law under con sideration. According to the learned counsel, the pecuniary interest must be in respect of the work to be done or goods to be supplied to the Union Committee as mentioned in the earlier part of the clause reproduced above. In support of his contention the learned counsel has referred us to a decision, Bhaskararao v. C. Y. K. Rao (A I R 1964 And. Prad. 77), of the Indian Jurisdiction. In that case the appellant was disqualified under section 7 (d) of Representations of the Peoples Act, 1951, on the ground of holding a mining licence from the Government of Andhra Pradesh. In the High Court it was urged that the provision of law in question should be strictly construed and that every kind of connection with Government activities on every benefit received by a person from Government would not fall within the said provision. The learned Judges of the Andhra Pradesh accepted this contention on the observation that the Legislature has chosen to confine the area of disquali fication only to contracts for supply of goods to the appropriate Government and execution of works undertaken by Government. Under section 7 (d) a person was disqualified for being chosen and for being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State if there subsisted a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to or for the execution of any works undertaken by the Government. This case is, therefore, distinguishable because under clause ( f ) of subsection (1) of section 53 of the Electoral College Act, 1964, the disqualification is contemplated only in two respects: firstly, if a person is a party to a contract for work to be done or goods to be supplied to a Union Council or Town Committee or a Union Committee within whose jurisdiction the electoral unit is situate, he is not qualified for standing as a candidate for the election of the Electoral College. It is further provided that if he has otherwise any pecuniary interest in such council or committee he will also be disqualified from standing as a candidate in such election. The contention of Mr. Muhammad Ibrahim Memon that the pecuniary interest referred to in the clause under consideration should be of the same nature as is described in the earlier part of the clause cannot be accepted as good argument. There are two grounds contemplated for the disqualification of a candidate. If he is found to have otherwise any pecuniary interest in such councils or committees, he has no right to stand as a candidate for the election of the Electoral College.

6. Mr. Muhammad Ibrahim Memon further contended that the objection about the disqualification of Respondent No. 3 was not taken at the appropriate time namely when the nomination paper was filed. He contended that it was not open to the peti tioner to raise this objection for the first time in the election petition and the learned Tribunal had no jurisdiction to go into such question. In our opinion, the contention of learned counsel in this respect also has no substance. It will be noticed that under section 21 of the Electoral College Act, 1964, a candidate has to give a certificate that he has consented to his nomination paper and he is not subject to any disqualification from being elected a member of the electoral College. It is not disputed that in the present case also respondent No. 3 had filed such a petition. Cases can be visualized where the opposite‑party may not be aware of the contract which a contesting candidate may have entered with a Union Council or a Town Committee, or of any pecuniary interest held by him. It cannot, therefore, be ruled out that the petitioner may not have been aware of the contract which respondent No. 3 was holding in respect of the L collection of octroi for the Town Committee in question. In such circumstances, no blame can be put on the petitioner for not raising any objection at the time of the scrutiny of the nomina tion paper. Any such lapse on his part cannot disentitle him later on to file an election petition on that ground under section 58 of the Electoral College Act. In the Act itself there is no bar to take any such question before the Election Tribunal. In the present case an objection was raised by the petitioner before the Election Tribunal that Respondent No. 3 was not qualified to stand as a candidate in the election of the Electoral College. This objection arose to the root of the right of Respondent No. 3 to stand as a candidate in the election of the said unit. It was, therefore, open to the Election Tribunal to consider this aspect of the case and come to the conclusion whether Respondent No. 3 had any such disqualification. We would, therefore, repel this objection.

7. Mr. Ibrahim Memon further contended that the alleged pecuniary interest is of a very minor character and as pointed out by the learned Tribunal it should not have any influence on the election held in the said Unit. In our opinion, the qualification or disqualification of a person cannot depend on the extent of the pecuniary interest. This contention, therefore, also has no force.

8. After hearing learned counsel for the parties, we are satisfied that having regard to the fact that Respondent No. 3 was holding a contract from Garhi Khairo Town Committee and had pecuniary interest in collecting octroi on its behalf he was not qualified to stand as a candidate in the election from Unit No. 8S of Garhi Khairo Town, and could not be held to have been validity elected to the Electoral College. His election from the said Unit was illegal and cannot be supported on any valid ground. We would, there fore, hold that the learned Election Tribunal fell into an error and did not approach the question properly after taking into consideration the relevant provision of law. The learned Election Tribunal ought to have set aside the election of Respondent No. 3 and in not doing so has acted without lawful authority.

9. In these circumstances, we would quash the impugned order and hold that Respondent No. 3 was not entitled to stand as a candidate in the election of the Unit concerned and set aside his election. The result would be that the Election Authorities will now hold a fresh election in the said Unit for electing a Member of the Electoral College. In the circumstances of the present case, however, we would direct the parties to bear their own costs. K.B.A. Petition accepted.