1999 PLP 2164 (MLD)

Khurshid Anwar Bhindar, A.A.-G. Malik Saeed Hassan for Respondent No.2. Masud Mirza for Petitioner as well as Zafar Iqbal Chohan (in Writ Petition No.20790 of 1998). Shamim Abbas Bokhari for Respondent No.3. This order shall dispose of Writ Petitions No. 19315 of 1998 and 20790 of 1998 as they arise out of the same impugned order dated 16-9-1988, passed by the learned Senior Civil Judge/Election Tribunal, Jhang.

2. The petitioner and respondents Nos.2 and 3 contested the election of electoral Unit No. 15 of the Municipal Committee, Jhang Maghiana. The petitioner secured the highest 666 votes whereas, respondents Nos.2 and 3 got 507 and 60 votes respectively.

3. Respondent No.2 filed election petition against the petitioner which was accepted by the aforesaid order dated 16-9-1998 by the learned respondent No.

1. The Petitioner was adjudged to be a defaulter and debtor of the said Municipal Committee for a sum of Rs.1,45,877 on account of his contractual liability of being a contractor for the year 1997-98 for the collection of the fees for the authentication of the maps on behalf of the committee. The petitioner was found to be disqualified to be a candidate or a member of the Municipal Committee and that his nomination paper was invalid.

4. Respondent No.2 has also filed the connected Writ Petition No.20790 of 1998 for declaring him to be a returned candidate consequent upon the disqualification of the present petitioner by the Election Tribunal.

5. Learned counsel for the petitioner argued that by virtue of notice dated 17-9-1997 the contract of the petitioner had been cancelled by the Municipal Committee, Jhang. The petitioner had already cased to be the contractor of the Municipal Committee before filing of the nomination papers. As such he was not disqualified to be a candidate of the said local Council on the nomination day. It was further argued that the name of the petitioner was not existing on he list of the contractors at the relevant time. It was lastly contended that the demand notice dated 18-7-1998 of the Municipal Committee, Jhang against the petitioner for the deposit of the outstanding amount of Rs.1,45,877 was an afterthought which could not be made the basis for disqualifying him.

6. On the other hand, learned Additional Advocate-General, Punjab, and the learned counsel for the respondents argued that on account of the outstanding contractual liability of the petitioner, the learned Election Tribunal had rightly accepted the election petition of respondent No.2, thereby disqualifying the petitioner.

7. I have heard the learned counsel for the parties at some length.

8. Under clause (b) of subsection (1) of section 21 of the Punjab Local Government Ordinance, 1979, a person is disqualified to be a candidate or a member of the local council if he is disqualified for the membership in the Parliament or the Provincial Assembly under any law for the time being in p force. The proviso of the said clause (b) retained the disqualification of a person who was a contractor had a share or interest in the Local Council concerned. As such, the disqualification provided by clause (n) of sub-Article (1) of Article 63 of the Constitution would apply mutatis mutandis to a Local Council. Similar disqualification is also provided in section 99 of the Representation of the People Act, 1976.

9. The notice dated 17-9-1997, from the Municipal Committee clearly shows that the contract of the petitioner was cancelled for violation of the terms and conditions thereof by the petitioner with the further stipulation that he would be liable for any loss sustained by the Committee on account of the cancellation of the contract. The committee after determining the liability up to 30-6-1998, asked the petitioner to discharge his liability by making the payment of Rs.1,45,877 incurred by him on account of his being a contractor. It cannot be said that the petitioner had no interest left in the contract whatsoever. As long as the pecuniary interest of the petitioner continues he cannot be allowed to contest the election of the Municipal Committee. In the case of Ghulam Yasin v. Secretary Local Government Punjab and others (PLD 1982 SC 425), it was held that even under the amended clause (b) of section 21 of the Ordinance, 1997, a person holding a contract with the same Local Council for whose membership he stood a candidate continued to be disqualified despite deletion of clause (h) thereof.

10. In the case of Muhammad Hassan v. Election Tribunal, Jacobabad (PLD 1966 Karachi 348), it was held that pecuniary interest need not be in respect of the work alone or goods supplied to the council or committee. If such a person was a party to a contract for a work to be done or the goods to be supplied he was not qualified to be a candidate. It was further held that even the small or insignificant pecuniary interest of a person would entail the disqualification. In the case of Thellakula Jalayya v. Namana Venkateswara Rao and others (AIR 1957 Andhra Pradesh 658) it was held that disqualification of Municipality on the basis of pecuniary interest was based upon the salutary principle that a member of a municipal committee would not be under obligation, pecuniary or otherwise to the Municipality for in that contingency he could not be expected to discharge his functions uninfluenced by any other considerations. It was further held that if the candidate being a person in arrears of tax during the prescribed period individually or as a member of the Firm he would be disqualified by the reason of the provisions of law. In Promode Lal Moitra v. Additional District Magistrate and others (AIR 1957 Calcutta 164), the nature of the interest for the purposes of disqualification for being a candidate or a member of Municipality was examined. It was held that accruing benefit need not be direct. The possibility or even probability of an actual resulting benefit would be sufficient. The object of provisions of the kind was to prevent the conflict between interest and duty that must otherwise inevitably arise. In Mehar Ali. v. Jumma Khan and six others (1981 CLC 73), a learned Division Bench of the Sindh High Court dealt with the question as to whether a person ceasing to have any existing contract with a Local Council on the date of nomination or the election could still be disqualified or not, in view of a similar provision of section 37 of the Sindh Local Government Ordinance, 1979. It was held that the petitioner although having no existing contract was disqualified from being elected to a Local Council on account of his indebtedness, Such a person could be said to have pecuniary interest in council for he could use his influence on Counsel not to enforce its claim against him or delay recovery or write it off.

11. The learned Election Tribunal recorded its findings of fact on the issue and disqualified the petitioner on the basis of oral as well as documentary evidence on the record to which no valid exception could be taken. Learned counsel failed to point out any jurisdictional or other legal defect in the impugned order dated 16-9-1998.

12. Now coming to Writ Petition No.20790 of 1998, filed by respondent No.2 suffice it to say that the disqualification of the petitioner was of such a nature which an ordinary voter could not be expected to understand. Moreover, the nomination papers of the petitioner had been accepted by the Presiding Officer without any objection of the candidates or any other person. For the purpose of holding the polling, it could be legitimately assumed as if the petitioner was a validly nominated candidate. The disqualification of the' petitioner was not a notorious one. There were three contesting candidates in the election. The votes cast in favour of the petitioner cannot be treated to have been D thrown away. Reliance can be placed on the cases of Muhammad Ashraf v. Muhammad Ajaib (PLD 1980 Lahore 311) and Abdul Ghani v. Mumtaz Hussain and others (1986 SCMR 1701).

13. For the foregoing reasons, I do not find any merit in these writ petitions which are dismissed. There shall, however, be no order as to the costs. Q.M.H./M.A.K 74/L Petitions dismissed