1982 PLP 418 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal has been sought from the judgment dated 13‑12‑1981. of the Peshawar High Court whereby a constitutional petition arising out of an election to a Local Body filed by the respondent, was allowed. The petitioner was elected to a seat of a Town Committee as a result of the elections held on 29‑5‑1979. Muhammad Amin respondent No. 1 was also elected to another seat. The said respondent, it is stated by the learned counsel, was interested in deseating the petitioner on account of the election relevant to the Chairmanship in which the petitioner was likely to play an adversary role. The respondent thus moved a petition before the Deputy Commissioner under sections 28 and 28‑A of the N.‑W. F. P. Local Govern ment Ordinance, 1979 for deseating the petitioner on the ground that he being an employee of the Telephone Industries of Pakistan, Haripur, which was under the control of the Pakistan Government, was not qualified to seek election. The respondent's application was dismissed on 19‑2.1980. He then moved a writ petition in the High Court and the same having been allowed the petitioner has sought special leave to appeal. The learned counsel has contended that the learned Single Judge in the High Court has not correctly held that the Telephone Industries of Pakistan is such a Company of which the controlling shares are held by the Federal Government and thus the petitioner was not disqualified under clause (g) of section 28 of Local Government Ordinance, 1979 read with paragraph 10 of Parliament and Provincial Assemblies Election Order, 1977 (5 of 1977). He has also contended that clause (g) was added to section 28 of 1979 Ordinance after the acceptance of nomination papers in the present case, therefore, the said clause could not be applied ‑by the High Court. Article 10 of President's Order No. 5 of 1977 provided that any person who was in the service of Pakistan or of any statutory body or any other body which is owned or controlled by the Government or in which the Government has a controlling share or interest shall be disqualified from being a member of Parliament. And clause (g) of section 28 of the Local Govern ment Ordinance, 1979 provided that a person would not be eligible to contest election or be a member of the Local Council constituted under the Ordinance if he is for the time being, disqualified from being elected or chosen as a mem ber of Parliament or a Provincial Assembly under any law for the time being in force. On the first point the learned Judges of the High Court observed as follows :‑ "The learned counsel for the petitioner, during the course of his argument invited our attention to the printed Articles of Association of the Telephone Industries of Pakistan to show that the Government of Pakistan is owning three‑fourth shares in this Company, which is a Company registered under the Companies Act. The learned counsel for the respondent No. 1 did not dispute this petition." The respondent's contention which prevailed with the High Court was that the petitioner being an employee of the Telephone Industries of Pakistan of which the controlling shares were held by the Government of Pakistan, was disqualified to contest an election for the Parliament of Provincial Assembly therefore, he was disqualified to be a candidate or a member of the Local Council. The main contention of the learned counsel is that disqualification under the Presidential Order were regarding the then "forthcoming elections" which were to be held in October, 1977 and because of the relevant time in 1979, the expression `forthcoming elections' could not be invoked, therefore, the disqualification in the Presidential Order could not be read by reference under clause (g) of section 28 of the Ordinance. Similar questions came up for consideration before this Court in Umar Draz Cheema v. Nazar Muhammad and others (1980 S C M R 156) it was observed by one of us (Muhammad Haleem, Actg. C. J.) that the relevant provisions of law "itself incorporates disqualification as provided by the President's Order No. 5 of 1977 as also those provided in other similar laws." It was further observed that "the principle of interpretation is that what is enacted has to be given full effect and extraneous con sideration cannot be employed to make it redundant or to detract it from the meaning which it conveys". Whether looked at the language or underlying intention, the disqualification relied upon from the respondent's side stood incorporated by reference in clause (g) of section 28 of the Ordinance, 1979 No other discussion is necessary in this behalf. The argument of the learned counsel is thus without any force. On facts, it is not necessary for‑ us to go into the question whether the Federal Government has controlling shares in the Telephone Industries of Pakistan because this, as mentioned in para. 6 of the impugned judgment, was not a disputed fact before the High Court. The argument regarding retrospectivity is also without any force. No doubt, the amending Ordinance (No. 7 of 1979) did not make any separate provision for retrospective application of clause (g) of section 28 of the Local Government Ordinance, but its retrospective application is inherent in the language used in section 28 itself which provides that "a person shall be disqualified to be a candidate or a member of Local Council" if he suffers the disqualification mentioned in clause (g). Thus even if he has been elected and was not disqualified at the time of putting up his candidature he could not continue to remain as a member if he suffered from the relevant disqualification. Moreover, section 34‑1 (a) further strengthens the above suppositions because it provides for the removal of a member of a Local Council from his office if he "has incurred any of the disqualification enumerated in section 23". This would include the disqualification in clause (g) of section 28 and that being so, the petitioner was liable to be removed as and when the disqualification was attracted for his removal. The High Court was fully justified in issuing the relevant writ for the enforcement of this law. None of the arguments raised by the learned counsel has any force. This petition is accordingly dismissed. Petition dismissed.