' AFTAB HUSSAIN, J.-This judgment will dispose of Writ Petitions Nos, 5902, 5732, 5796, 5901, 6111, 6246, 6546, 6553, 6559, 6571, 6597, 6627, 7174, 7311, 7570, 8040, 8364 all of 1979 and Writ Petition No, 2449 of 1980 since there is a common question of law involved whether by virtue of section 21 ( f ) of the Punjab Local Government Ordinance, 1979, persons who were members or associates of an unregistered political party within two months preceding the Publication of a notification under section 11 of the Representation of the Peoples Act, 1976 and were thus disqualified to be candidates for elections to the Provincial or National Assemblies also incurred the disqualification in regard to the membership of a local council particularly when the disqualification came into force either after the acceptance of nomination papers or after the elections to the local councils had already been held but prior either to the declaration of result or, in any case, publication of its notification. Thus these petitions involve the interpretation of clauses (7-a) and (7-c) of subsection
(2) of section 10 of the Houses of Parliament and Provincial Assemblies (Elections) (Second Amendment) Order, 1977.
2. The Punjab Local Government Ordinance, 1979, came into force on the 31st of July 1979. It provided for composition of local councils and elections to those councils. According to the schedule of election, the date of filing the nomination papers throughout the Punjab was fixed as 12th September 1979, and the elections were scheduled to be held on 25th September. The election results were declared on the 27th of September 1979, and were notified in the official Gazette on the 9th October 1979. The members so notified took the oaths of their offices save in exceptional cases on the 11th October 1979.
3.. The Punjab Local Government Ordinance, 1979, in its section 20, provides the qualifications of candidates and members and in its section 21 deals with the disqualifications of the candidates and members. The qualifications are only two-firstly that a candidate must have attained the age of twenty-five years on the last date fixed for filing the nomination papers and secondly that his name should appear on the roll of the electoral unit for which he seeks election.
4. Section 21 deals with disqualification of candidates. It provides that a person shall be disqualified to be a candidate or member of a council, (a) if he has ceased to be a citizen of Pakistan; (b) if he is an undischarged insolvent ; (c) if he is of unsound mind and has been so declared by a competent Court ; (d) if he has been on conviction for an offence involving moral turpitude sentenced to imprisonment for a term of not less than six months, unless three years have elapsed from the date of expiration of the period of the sentence ; (e) if he is a salaried official of Federal or Provincial Government or of a Public or Statutory Corporation, a local council or other local authority ; (g) if he has been dismissed from Government service or the service of local council on charges of corruption and a period of three years has not elapsed from the date of such dismissal ;
(h) if he is under contract for work to be done or goods to be supplied to the local council concerned or has otherwise any pecuniary interest in its affairs ; and "(f) if he for the time being is disqualified for membership of the . Parliament or a Provincial Assembly under any law for the time being in force."
5. The decision of these cases depends upon the interpretation of clause (f) which for facility of reference I have quoted at the end although in section 21 it appears before the two other clauses numbered as (g) and (h).
6. By reference clause (f) inter alia applies the provisions of section 10(2) of the President's (Post Proclamation) Order 5 of 1977 which deals with the disqualifications for membership of the Parliament and the Provincial Assemblies. Some of these disqualifications were already in force on the date when the nomination papers for elections to the Local Councils were filed for example in clause (b)(4) of subsection (2) of section 10 there is disqualification "if he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share of interest, unless a period of two years has elapsed since he ceased to be in such service".
7. But certain disqualifications were added either after the date fixed for filing nomination papers or even after the elections for membership of the Local Councils. Thus by President's Order No, 15 of 1979, entitled as `Houses of Parliament and Provincial Assemblies (Elections) (Second Amendment)
Order, 1979' and enforced on 19th September 1979, after clause (7) of section 10 of the Houses of Parliament and Provincial Assemblies (Elections) Oilier, 1977, inter alia the following disqualification was added.
"(7-a) if he is a member of a political party which has not been registered, or the registration of which has been cancelled, under the Political Parties Act, 1962 (III of 1962)."
' Clause (7-b) was also added but it is not material for the purpose of this judgment.
8. By President's Order No, 18 of 1979, known as Houses of Parliament and Provincial Assemblies (Elections) (Third Amendment) Order, 1979, which was enforced with effect from 27th September 1979, a further clause (7-c) was added after clause (7-b) which is as follows "(7-0 if he has, during the period of two months preceding the publication of the notification under section 11 of the Representation of the Peoples Act, 1976 (LXXXV of 1976\ been a member or supporter of, or associated with, a political party, unless he is put up by that political party as a candidate."
' Thus by sub-clause (7-a) it was provided that a person who is a ,member of a political party which has either not been registered or registration of which has been cancelled under the Political farties Act would be disqualified from being elected as a member of the Provincial and National Assemblies of Pakistan. By clause (7-c), any person who, during the period of two months preceding the publication of notice under section 11 of the Representation of the People Act, 1976, has been a member or supporter of, or associated with a political party unless he I s put up by that political party as a candidate, was also disqualified.
9. Clause (7-a) was further amended on 8th October 1979, by President's Order No 20 of 1979 known as Houses of Parliament and Provincial Assemblies (Elections) (Fourth Amendment) Order, 1979, and was substituted by the following sub-clause :-- "(7-a) if he is a member of a Political Party which is not eligible under Political Parties Act, 1962 (III of 1962) to participate in an Election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such Election ; or."
' Thus a member of a Political Party which was not eligible under the Political Parties Act, 1962 to participate in an election to a seat in a House of Parliament or a Provincial Assembly was disqualified from being nominated or put up as a candidate at any such election.
10. It will thus be seen that the first relevant amendment introduced by President's Order No 15 by addition of clause (7-a) came into force on the 19th September 1979 when the date of filing of nomination papers (12-9-1979) had already expired. Clause (7-c) was added by President's Order No 18 on the 27th September 1979, on the very day when the election results were to be announced by different Returning Officers in the Punjab, while clause (7-a) in its amended form was enforced by President's Order No, 20 of 1979 after the date of announcement of Local Councils Election results but prior to their notification i,e, 9-10-1979.
11. In order to appreciate the arguments, it would be necessary to deal with the history of the changes in the Political Parties Act which affected the eligibility of a person to participate in the elections of the Parliament or the Provincial Assembly. The Political Parties Act, 1962 (Act III of 1962) regulated the formation of Political Parties, their lawful political activities, certain disqualifications as regards membership of Political Parties, dissolution of a political party and certain, disqualifications for being member of the National Assembly or a Provincial Assembly. Thus section 8 provided for such disqualifications in respect of office-bearers of a central or provincial committee of a party which has been dissolved under subsection (2) of section 6 or who has been convicted under section 7. This Act was amended later in the previous regime but it is unnecessary to deal with other amendments except those enforced after the 5th of July 1977, when Martial Law was promulgated. By Martial Law Regulation No, 18 issued by the Chief Martial Law Administrator and published in the Gazette of Pakistan dated the 27th of July 1977, it was directed that no political party or person shall propagate any opinion or act in a manner prejudicial to the Ideology of Pakistan, or the integrity or the security of Pakistan or prejudicial to the purpose for which Martial Law has been proclaimed. It also prohibited the use of force, violence, intimidation etc. Seduction of a person from his allegiance or his duty, interference with the functioning of any political party or its members etc., taking out processions of political nature, attending a public meeting armed with any deadly weapons or instruments which can be used for causing injury etc. Or doing anything which is calculated to create hatred against any religion, community, race, class, sect or tribe or between people of different regions or which is calculated to incite the people to violence or to cause damage to any property. It also provided for penalty for contravention of these provisions.
12. The Political Parties Act, 1969, was amended by the Political Parties (Amendment) Ordinance, 1978, providing for prohibition in regard to formation of certain political parties. Substituted section 3 of the Ordinance provides that no person shall form, organise, set up either with foreign aid or at the instance of any foreign Government or Political Party of a foreign country or affiliation to or association with any Government or Political party of a foreign party with the object of propagating any opinion or acting in any manner prejudicial to the Islamic Ideology, or the sovereignty or integrity or the security of Pakistan, or morality, or the maintenance of public order.
13. On the 30th August 1979, Political Parties (Amendment) Ordinance, 1979, was enforced which added sections 3-A and 3-B to the Act. Section 3-A provided that "every political party shall, in such manner and form and at such times as may be provided by rules made by the Federal Government, account for the source of its funds to and submit its finances and accounts to audit by, an officer or authority authorised by the Election Commission in this behalf, provided that every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall account for the source of its funds, and submit its finances and accounts to audit, within fifteen days of the publication of the rules made under this section".
' By section 3-B it was provided that "every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall, within one month of such commencement, apply to the Election Commission for registration in such form as the Election Commission may specify and shall be accompanied by certain documents specified therein. Subsection (4) provided for cancellation of registration of a political party for the reasons given in that subsection.
Subsection (6) of section 3-B further provided that a political party which has not been registered under subsection (3), or the registration of which has been cancelled under subsection (4), shall not be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election.
14. Another amendment was made on the 27th Sept ember 1979, by the Political Parties (Second Amendment) Ordinance, LII of 1979 which added inter alia disqualification in regard to registration of a political party in subsection (3) which provides for cases in which the Election Commission shall register a political party applying for registration. One of the conditions of eligibility to registration added by this Ordinance is "has submitted its accounts as required by section 3-A".
15. The last amendment in the Political Parties Act is by the Political Parties (Third Amendment)
Ordinance LIII of 1979, which was enforced on 8th October 1979, to make provision for registration of political parties which had complied with the provisions of section 3-A but had not applied for registration under section 3-B.
16. Thus the amendment introduced in the Political Parties Act, 1962, on the 30th August 1979, provided in its section 3-A for submission of accounts by the existing political parties to the Election Commission within fifteen days of the publication of the rules made under that section. The Rules known as the Political Parties (Audit and Account) Rules, having been published on the 3rd September 1979, it became obligatory upon the existing political parties to submit their accounts under section 3-A by the 18th September 1979. Though in the Ordinance dated 30th August 1979, there is no specific provision making the political parties ineligible to registration on their failure to comply with the provisions of section 3-A, but this can be spelt out by reference to subsection (6) of section 3-B which provided for cancellation of registration in case of non-compliance with the provisions of section 3-A. However, that defect was removed by the Second Amendment Ordinance which came into force on the 27th September 1979. This eligibility clause was specifically provided in subsection (3) of section 3-B meaning thereby that the Political Parties which had not submitted accounts could not be treated to be eligible for registration. It, therefore, follows that such parties or their members would be disqualified from participating in the elections of Parliament or the Provincial Assembly by virtue of the provisions of President's Order No, 15 of 1979, dated the 19th September 1979, read with provisions of section 3-B of the Political Parties Act.
17. Writ Petitions Nos, 5902, 5732, 5796, 6546, 6553, 6559, 6597, 6627 and 8040 of 1979 have been filed to challenge membership of Zilla Councils of Malik Muhammad Mumtaz Khan, Habibullah Khan Niazi, Sardar Muhammad Ashiq, Syed Hamid Raza Gilani, Ch. Muhammad Azhar, Ch. Muhammad Aslam, Sardar Liaquat Ali, Pir Shujaat Hussain Qureshi and Syed Ali Raza respectively.
Writ Petitions Nos, 6571, 7174, and 7311 of 1979 are against the elections of Malik Abdul Razzaq Khan, Mir Abdul Rashid Ashk and Ghulam Hussain Cheema to the Municipal Committees of Bhakkar, Sargodha and Mian Channu, respectively. Writ Petition No, 5901 of 1979 has been filed to challenge the election of Ch. Irshad Ahmad to Union Council Dhoria, Tehsil Kharian while Writ Petitions 6246 and 7570 of 1979 are against Abdul Rehman Wahla in regard to his election, as Member, Town Committee Jehanian. The last Writ Petition No, 2449 of 1980 has been filed by Wahid Bakhsh who was elected a member of Town Committee Jampur, District Dera Ghazi Khan but was later dismissed from membership under section 29 of the Punjab Local Government Ordinance. For facility of reference these persons will be called as 'Elected Members' while those who challenge their election will be called 'petitioners'.
18. The common feature of all these writ petitions is that the elected members filed their nomination papers for election either to the National or Provincial Assembly as candidates of an unregistered political party, namely, Pakistan People's Party, or as associates of that party but their nomination papers were dismissed by the Returning Officer on account of their association/membership/candidature of an unregistered political party. They were held to be disqualified either under clause (7-a) or clause (7-c) of section 10(2) of the Houses of Parliament and Provincial Assemblies (Elections) Order No, 5 of 1977 as amended by President's Orders Nos, 15 and 18 of 1979. Appeals were filed against the rejection of the nomination papers before the Member of the Election Commission (Zakiuddin Pal, J.) who dismissed the same on the same ground. The case of the petitioners is that in view of section 21 (f) of the Punjab Local Government Ordinance, 1979, these persons were also disqualified from being elected as members of the Union Councils, Town Committees, Municipal Committees or District Councils as the case may be.
19. The elected members do not deny the rejection of their nominations to the election of Provincial/National Assembly. Their main objections are to the applicability of clause (7-a) and clause (7-c) to their elections to the Local Councils.
20. These cases were argued on behalf of the petitioners by Mr. A. Waheed Salim, Advocate, and Mr. Iqbal Ahmad, Advocate and on behalf of the elected persons by Mr. Khalid Farooq Qureshi, Mr. Danishwar Malik, Mr. Aitzaz Ahsan, Raja Muhammad Sabir, Mr. Muhammad Hanif Khan Niazi and Mr. Ahmad Tariq Rahim, Advocates. These arguments with few exceptions were common. The other learned counsel adopted the arguments of one party or the other.
21. Now it is a fact that the present plea of disqualification was not available to any of the petitioners on the date of filing of nomination papers or even on the date of elections since the nomination papers were filed on the 12th September 1979, and the elections to the Local Councils were held on the 25th September 1979. There 'was still time, when the nomination papers were filed, for the political parties to submit their accounts to the Election Commission since the last date for submission of accounts was the 18th of September 1979. The learned counsel for the petitioners, however, based their arguments on the ground that though clauses (7-a) and (7-c) were not available on the date of the nomination papers and consequently no objection to that effect was or could have been taken at that time but in the case of the members or associates of the Pakistan People's Party clause (7a) became available at least on the date of enforcement of the amended President's Order No, 15 of 1979 (19-9-1979), since that party had not submitted its accounts by the 18th September 1979, and was thus disqualified from applying for registration under the Political Parties Act and consequently could be described as an unregistered political party. On the same ground clause (7-c) was attracted as a disqualifying clause to these elected persons with effect from 27th September 1979. In these circumstances, the elected persons could not have been declared elected on the 27th September 1979, and, in any case, their election could not be notified on the 9th October 1979, nor later could any oath of office be administered to them. Section 21 of the Punjab Local Government Ordinance, 1979, provides that a person is disqualified not only for the candidature but also from being a member. The disqualification was, therefore, applicable at least to the membership of these elected persons if not to their candidature.
22.
22. Mr. Khalid Farooq formulated his points as follows :-
(i) Section 21 (f) does not adopt by reference any provision whatsoever of section 10 of the Houses of Parliament and Provincial Assemblies Order as the disqualifications there are by the Act of Parliament and the adopted disqualifications under section 21 (f) are under the Act of Parliament.
(ii) In a case of adopted legislation, adopted statute must be adopted with such adaptation and modifications which are essential for the purpose of the adopting statute and the object of the statute should be kept in view.
(iii) The adoption of provisions by reference of the laws as they stood on 31-7-1979, the day of promulgation of Ordinance VI of 1979, and any other amendment made later in the adopted statute do not in the instant case fall within the legislative intent as adopted, particularly when the adopting statute could function without such adoption.
(iv) Assuming that clauses (7-a) and (7-c) of section 10 are applicable and the respondents were originally disqualified, such disqualification had ceased to exist on the day the council was to begin functioning. The writ of quo warranto cannot, therefore, be issued.
(v) In any case, if the alleged disqualification does not exist on the day of issuance of the writ, the writ shall not issue.
(vi) The relief asked for is in the nature of quo warranto and it relates to the holding of public office.
Any proceedings, by election or in any other manner, taken to the resumption of public office cannot be questioned by quo warranto. All the writ petitions are, therefore, premature.
(vii) The jurisdiction being equitable, considering the totality of the effects, Courts may not like to interfere.
23. The question whether the provisions of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1979, are applicable to elections to the Local Councils under the Local.
Government Ordinance, 1979, is not a new question. It has already been decided in a number of cases. This matter came up for consideration before the Supreme Court in Umer Draz Cheema v.
Nazar Muhammad and others (1). Two Civil Petitions for Special Leave to Appeal were disposed of by their Lordships by one judgment. In the first case the petitioner was in the employment of the Punjab Text Book Board, "a statutory body, owned and controlled by the Provincial Government". He left the service on the 4th January 1978. An objection was taken to the validity of his nomination paper on ground of his ineligibility to seek election since two years had not elapsed from the time when the petitioner had left service in view of his disqualification under section 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order No, 5 of 1979. The nomination paper was, however, accepted and the objection was overruled. A review petition filed under section 17 of the Punjab Local Government Ordinance, 1979, before the Punjab Election Authority was rejected on the 21st September 1979. A writ petition against that order, however, succeeded.
24. The Punjab Election Authority had held that the disqualifications enumerated in Article 10 of President's Order No, 5 of 1977, could not be read into clause (f) of section 21 of the Ordinance as that Presidential Order
(1) 1980SCMR 156 was only meant for the "forthcoming elections" to the Parliament and the Provincial Assemblies to be held on 17th of October 1977. It was further held that the Ordinance, being a special law, would override the other general laws by reason of section 4 of the said Ordinance. While construing clause (f) of section 21, it was held :- " The words 'is disqualified' means he has been disqualified or stands disqualified and not 'can be disqualified'. Hence it means to the past and not future. Thus clause (f) of section 21 has got limited scope and applies to those persons who already stand disqualified for membership of the Parliament or a provincial assembly under any law for the time being in force. Consequently, all disqualifications under P.
0. 5 or other statutes would not ipso facto apply under section 21 of the Ordinance. The disqualifications which are not mentioned in section 21 cannot be imported through the back door."
25. Same arguments were addressed on behalf of the successful candidates in the High Court and it was further contended that unless there was a specific order of disqualification against a candidate it should not be read as a disqualification in terms of clause ( f ) of section 10 of the Ordinance. It was also argued that there were inconsistencies in several clauses of section 21 and those of Article 10 of the Presidential Order.
26. The High Court, however, held that there was no conflict between section 21 and Article 10 of the President's Order and insertion of disqualification in 10 of the Order into clause (f) of section 21 was a legislative act which made the disqualification an integral part of the Ordinance and had to be given full effect. It was also held that it was not necessary that the candidate should be disqualified by an order of a competent authority since by virtue of clause (f) this disqualification became effective by operation of law. Their Lordships dismissed the petition for special leave to appeal and held as follows :- "According to its tenor it tends to bring the candidates for the local councils on the same footing as the candidates for the membership of the Parliament or the Provincial Assemblies by subjecting them to the same disqualifications in addition to those enumerated in section 21. The word 'disqualified' used in clause (f) has no particular implication but that it signifies the disability according to the particular language of the provisions of other statutes. This becomes obvious if the word 'disqualified' is read in conjunction with the words `under any law for the time being in force'. The High Court was, therefore, correct in holding that the implication of this word was not that a candidate should have been disqualified under any law for the time being in force by any specific order. Further, as this clause incorporates the disqualifications under other laws and, therefore, the High Court was right in holding that such disqualifications being an integral part of the Ordinance, full effect should be given to them subject of course to the limitation that they should not be inconsistent with the disqualifications enumerated in section 21. Again we fail to see how Article 1(2) and (3) of President's Order No, 5 could be taken into consideration for holding that the disqualifications in Article 10 could not be read into clause (f) of section 21 of the Ordinance when clause (f) itself incorporates disqualifications as provided by this Article and the other laws.
The principle of interpretation is that what is enacted has to be given full effect and extraneous considerations cannot be employed to make it redundant or to detract it from the meaning which it conveys. Therefore, it would not be proper to read the words 'by a specific order' in clause (f) for the Courts cannot provide the deficiency which can only be done by the Legislature."
' The same view was taken by my learned brother Aamer Raza A. Khan, J., in Muhammad Khan v.
Muhammad Sarfraz Khan erc. (1). Similar question was raised in a Division Bench case of this Court.
[La! Hussain v. Ghulam Sabir etc. (I. C. A. 559 of 1979)]. That was also a case in which the candidate had retired from service within two years of the elections to the Local Councils. The High Court issued a writ of quo warranto holding him to be disqualified in view of the provisions of section 10(2) of President's Order No, 5 of 1979 and clause ( 1) of section 21 of the Local Councils Ordinance.
It was argued that where a specific disqualification is provided in the Special Act as in clause (e) of section 21 of the Punjab Local Government Ordinance, 1979, and a similar disqualification is incorporated in a general provision, the special provision will override the general one. It was further argued' that President's Order No, 5 of 1979 was effective for the forthcoming election only and it ceased to be enforcible after 18th October 1977, All these contentions were repelled and it was held that section 21 disqualified only salaried officials of the Government or the statutory corporations etc. While the disqualifications under section 10 of the President's Order 5 of 1977, extended also to persons who ceased to be in service .Within two years of the holding of the election. Both these provisions could, therefore, stand together in harmony and the principle of law that the Special Act overrides the general one was not applicable. As regards the second point it was held that President's Order No, 5 of 1977 was still in force and would remain in force unless repealed earlier, till the next elections under that provision are held to the Parliament and Provincial Assemblies.
27. These cases provide ample answer to the arguments of legislative intent and inconsistency raised by the learned counsel for the elected persons and a further argument by Mr. Aitzaz Ahsan, Advocate, that President's Order No, 5 of 1977 had ceased to take effect after the 16th of October 1977, when the elections scheduled to be held on the 17th November 1977, were adjourned. As held by their Lordships of the Supreme Court the disqualifications under section 10 of President's Order No, 5 of 1977, being A an integral part of the Ordinance, full effect should be given to them subject to the limitation that they should not be inconsistent with the disqualifications enumerated in section 21. As regards the argument o Mr. Aitzaz Ahsan, it would be sufficient to say that President's Order No, 5 of 1977 is still good existing law and would hold the field till the forthcoming elections are held or it is repealed earlier.
28. There is, however, a more intricate objection to the applicability of clauses (7-a) and (7-b) to the elections held to the Local Councils on the 25th September 1977. It has already been noticed that clause (7 -a) was added on the 19th September 1977, after nomination papers had already been filed and accepted. Clause (7-c) on the other hand, was enforced on the 27th September 1977, when the elections had already been held on the 25th September 1977. It was, therefore, argued emphatically that none of the cases referred to above will apply since all of them give effect to disqualifications which already existed on the date of filing of nomination paper.
(1) 1980CLC 1 ' Any subsequent amendment in the President's Order specifying new disqualifications would not apply to the elections of the elected persons.
29. Section 21(f) as stated above, provides that a person shall be disqualified to be a candidate or a member of a local council "if he for the time being is disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force". It was argued that the hey-words "for the time being" in the first line and "for the time being in force" in the last one point out that a disqualification must be a disqualification on the date of enforcement of Ordinance VI of 1979, and, therefore, the disqualifications added by subsequent amendments Would not be applicable. Reliance was placed upon Secretary of State v. Hindustan Co-operative Insurance Society Ltd. (1), E. I. Film Studios v. P. K. Mukherjee (2), Nariman Sorabji Kotwal v. Aziz Hasan (3), M. S. Faruki v. Province of West Pakistan (4), Amro Jan v, Amir Muhammad (5), Mehtab Khan v.
Rehabilitation Authority (6) and Zahur Illahi v. Secretary to Government of Pakistan Ministry of Home and Kashmir Affairs, Rawalpindi (7).
30. On the other band, the learned counsel for the petitioner submitted that the words "for the time being in force" convey an impression of indefiniteness and include future also. It was argued that section 21 of the Ordinance regarding disqualifications was applicable not only to candidature but also extended to membership, and even though a person was not disqualified on the date of filing nomination paper and a disqualification was later provided for before the declaration of his election or its notification, he would still be amenable to such disqualifications in view of the provisions of section 29 which empowers the Government to remove a member of local council from office if he "incurs any of the disqualifications enumerated in section 21". Particular emphasis was laid on the word "incurs" in this connection. Reliance was placed upon the interpretation of the words "for the time being" or "for the time being in force" in lftikharud Din v. Muhammad Sarfraz (8), Ghulam. Qadir & Co. v. Government of Pakistan (9), Rehmatullah v. Deputy Settlement Commissioner (10) and Province of West Pakistan v. Mahboob Ali (11), in which the Privy Council case Secretary of State v. Hindustan Co-operative Society Limited was distinguished.
31. The objection of the learned counsel for the elected persons, however, was that such an interpretation would amount to the Provincial Legislation being open to a more serious objection of dereliction of legislative functions or/and to conferment of power on the Central Government to legislate for the province. It will amount to leaving it to the whims of the Central Legislature to curtail the term of the Members of the Local Council who are otherwise elected for four years. It was submitted that the interpretation should be such as may advance the legislative intent which in the present case is enjoyment by an elected member of his office for the statutory period of four years. Section 29 of the Ordinance should also be similarly construed
(1) AIR 1931 P C 149 (3) PLD 1958 Kar. 492 (5) 1978 SCMR 639 (7) PLD 1975 Lah. 499 (9) PLD 1962 Lah. 948
(2) AIR 1954 Cal. 41 (4) PLD 1970 Lah. 195 (6) PLD 1973 SC 451 (8) PLD 1961 SC 585 (10) PLD 1963 SC 633 (11)P L I) 1976 SC 483 as being effective in regard to those disqualifications which a person had already incurred prior to and till the date of filing of his nomination paper.
32. In the Privy Council case Secretary of State v. Hindustan Co-operative Insurance Society Ltd., it was held that "it is an accepted rule of construction that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second. The independent existence of the two Acts, viz. Land Acquisition Act and Calcutta Improvement Act, is therefore, recognised; despite the death of the parent Act its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act the principle involved is still applicable". It. Was further held that "where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition, to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition."
33. This case is clearly distinguishable since it did not involve the interpretation of the words "for the time being in force". In that case the question was whether an award given by a Tribunal under the Calcutta Improvement Act was appealable to the Privy Council, in the same manner as it was appealable under the Land Acquisition Act. The Calcutta Improvement Act provided for acquisition of land in the same manner as the Land Acquisition Act and applied certain provisions of the latter Act. It also provided for constitution of a "Tribunal" to take the place of the "Court" under the Land Acquisition Act "except for the purposes of section 54 of that Act". It further emphasised the finality of the award of the Tribunal. It was in view of this that the award of the Tribunal was held to be final and not appealable for the added reason that section 54 of the general Act which provided for an appeal against the order of the Court under that Act was not applied to, matters governed by the Provincial Act. In the year 1921, section 54 of the Land Acquisition Act was amended so as to provide for a right of appeal to his Majesty-in-Council from an award of the Court. The appeal was filed before the Privy Council in view of this latter amendment of section 54. Their Lordships held that the provision of finality of the order of the Tribunal was sufficient to exclude any further appeal.
Similarly, the deliberate exclusion of section 54 from the local Act was an indication of the local Legislature's intention that there should be under the special code applicable to the Improvement Trust not only no unrestricted right of appeal to the High Court, but no appeal at all beyond the High Court. It was in that context that it was added that "where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition, to the former Act which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it." This case was distinguished in Province of West Pakistan v. Mahboob All which will alsb be dealt with.
34. In Amro Jan v. Amir. Muhammad the question was whether the words "for the time being in force" occurring in section 4 of Pakistan (Administration of Evacuee Property) Act, 1949, which provided, that the provisions of the Ordinance shall have the effect 'notwithstanding anything inconsistent therewith contained in any other law for the time being in force applied this non obstante clause to subsequent amendment in North-West Frontier Tenancy Act, 1950. It was held that the words "for the time being in force" had the import of any other law subsisting at that time and did not prevent the passing of a future law by a competent authority to make a different provision. The same principle was laid down in Mehtab Khan v. Rehabilitation Authority.
35. In Nariman Sorabji Kotwal v. Aziz Hassan the words "for the time being" were held to mean "temporary". In M. S. Faruki v. Province of West Pakistan, the paragraph relating to amendment in the case of Secretary of State v. Hindustan Co-operative Insurance Society Ltd., was relied upon but it was dissented from in appeal in Province of West Pakistan v. Mehboob Ali. The facts of this case are that the writ petitioners, who were members of the Local Council Services under the Basic Democracies Order read with Municipal Administration Ordinance, 1960, and who were originally appointed to the Lahore Municipal Corporation, were ordered to be transferred to other Districts.
They challenged their transfer in the High Court and their writ petition was allowed vide M. S. Faruki v. Province of Pakistan. Section 29 of the Ordinance provided that "The Government may from time to time specify the posts in the Municipal Committees which shall be filled by persons belonging to the Local Councils Service constituted under Article 44 in Chapter VIII of Part II of the Order, and the other provisions of that Chapter shall mutatis mutandis apply in relation to the servants of Local Councils as if the said provisions had been enacted in this Ordinance"'.
' The High Court had held that the transfers were not made by the competent Authority which in the case of the writ petitioners was the controlling authority as provided by section 29 and defined in section 3(10) of the Ordinance and that rule 2(6) of the Local Councils Service Rules, 1963, has extended the meaning of Local Councils beyond its meaning as defined in Article 2(24) of the Basic Democracies Order so as to cover the Municipal Committees in the absence of the corresponding amendment in the Order or Ordinance and as such the extension was without legal sanction. It was also held by the High Court that the expression "controlling authority" in Article 45 of the Basic Democracies Order has been replaced by the words "prescribed authority" by the Amendment Act XVI of 1965, but no corresponding amendment was made in section 29 of the Municipal Administration Ordinance which also spoke of the words "controlling authority" and the amendment in Article 45 could not the ipso facto be read into section 29 of the Ordinance. Support for this was gathered from the Privy Council case Secretary of State v. Hindustan Co-operative Insurance Society Ltd.
' Their Lordships of the Supreme Court did not agree with this in view of the applicability of Chapter VIII of Part II of the Basic Democracies Order mutatis mutandis to the Ordinance in relation to the servants of the Municipal Committees as provided in section 29 of the Ordinance and distinguished the Privy Council case on the ground that the Tribunal was not a Court. But the use of the words mutatis mutandis in section 29 is equivalent to saying "subject to necessary changes in its details". It was held that "the intention of the law-maker, plainly was to apply to the servants of Municipal Committees the provisions, inter alia of Article 45(5) of the Order, and there is no reason why Article 45(5) should not be applied in its amended form keeping in view the purpose and the general scheme of the legislation. That would be only giving effect to what plainly was the legislative intendment.
36. In lftikhar-ud-Din v. Muhammad Sarfraz the applicability of Martial Law Regulation No, 72 was questioned on the ground that it covers only orders passed between the 10th of October 1958, the date of promulgation of the Laws (Continuance in Force) Order (1 of 1958) and the 29th of July 1959, the date on which the Regulation came into force, and that it did not apply to the impugned order which was passed on the 8th of May, 1961. For this contention reliance was placed on the words "for the time being" used in section 1 of the Regulation which, it was contended, could refer only to the past. It was held that the words 'for the time being' do not necessarily refer to the past and may well have reference to what is to happen in future. Reference was made in this connection to Stroud's Judicial Dictionary, Vol. IV, where the meaning of the words "for the time being" is thus stated:- "The phrase `for the time being' may according to its context mean the time present or denote a single period of time but its general sense is that of time indefinite and refers to an indefinite state of facts which will arise in the future and which may (and probably will) vary from time to time."
' In Ghulam Qadir & Co. v. Government of Pakistan the question was whether the arbitration clause which indicated the arbitrator as "Secretary for the time being to the Government of India in the Army Department" was vague. It was held that it was not vague and that the arbitration clause was not unenforceable on that account. The words 'Tor the time being in force" were interpreted as not referring to any particular time but it was construed that it could not be said to be indefinite in the sense that no meaning could be gathered from it. Its meaning had to be understood with reference to its context and the facts to which it refers can make the time definite or ascertainable.
The expression may, under certain circumstances refer to the time when a dispute arises between the parties, or when a certain action is to be taken. If this distinction was borne in mind, it could be said that in the arbitration clause only the Secretary at the time of the execution of the agreement was to be appointed as an arbitrator nor could it be said that the person to be so appointed was to be the Secretary at the time when the dispute arose between the parties. The intention of the contracting parties was to appoint that person as an arbitrator who was holding the post of the Secretary at the time when the reference was to be made.
37. It will be seen that there are cases in which, as in Amro Jan v. Amir Muhammad and Mehtab Khan v. Rehabilitation Authority the words "for the time being in force" have been interpreted in a restricted sense, as having -reference to the date on which the main statute came into force. But there are other cases as Iftikhar-ud-Din v. Muhammad SarJraz, where the wider meaning of applicability of an Act to future cases has also been recognized. According to Stroud's Judicial Dictionary als each legislation has to be interpreted according to its context. The phrase "for the time being" may thus according to its context mean the time present, or denote a single period of time as in Amro Jan v. Amir Muhammad and Mehtab Khan v. Rehabilitation Authority but it may also refectory an indefinite state of facts which may arise in future and which may (and probably will) vary from time to time. There being no hard and fast rule the Legislative intent in each statute has to be discovered.
38. Coming back to section 21(f) it will be seen that as held by their Lordships of the Supreme Court in Umar Draz Cheema v. Nazar Muhammad its tenor is to bring the candidates for the local councils on the same footing as the candidates for the membership of the Parliament or the Provincial Assemblies by subjecting them to the same disqualifications in addition to those enumerated in section 21. This being the object of law it cannot be held that the phrase "for the time being in force" denotes only a single period of time i,e, the date of enforcement of the Ordinance o 1979. It clearly envisages that in future too no person who is disqualified to be a member of the Parliament or Provincial Assemblies under the law then D in force would be qualified to be a member of the Local Council, unless there be some inconsistency between the disqualifications as provided by section 21 and the amended law adding disqualifications. Clearly, therefore, the addition of disqualification by amendment of the Central Law will enure' to the disadvantage of the candidates for the Local Council.
39. The argument of the learned counsel that this interpretation would lead to justifying the dereliction of legislative duty by the Provincial Government is without force. Such examples of adoption of laws by reference are not rare. Even in Secretary of State v. Hindustan Co-operative Insurance Society Limited it was recognized that the Legislature can adopt not only the statute as suggested on the date of its adoption but also its subsequent amendment. It would amount to dereliction of duty only if an irrevocable E charter is granted to the Parliament or to the Central Legislature to legislate for the Province. But where one enactment adopts the provisions of another statute the adoption is not irrevocable since the Provincial Legislature can, at any stage repeal provisions of adoption from the law enforced by it.
40. The other point raised by the learned counsel raises a very intricate question whether in a particular election the disqualifications under section 21 should be the one existing only on the date of filing of nomination papers.
41. The learned counsel for the elected persons referred to section 20 in this context in which terminus a quo for qualification visualised by that section is the age of twenty-five years of the candidate on the date of filing of the nomination paper and inclusion of his name on that date in the electoral roll of the same electoral unit. The Returning Officer while accepting or rejecting a nomination paper can only look at the disqualifications and qualifications of the candidate as on the nomination day. Rule 13 of the Punjab Local Council (Election Petition) Rules, 1579, provides for grounds for declaring election of returned candidate void. These grounds are-
(a) the nomination of the returned candidate was invalid ; or
(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Chairman or Vice-Chairman, as the case may be ; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice ; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorised agent.
' The last two conditions are about corrupt or illegal practice during the course of elections. The first condition deals with invalidity of nomination of the returned candidate. The relevant condition relied upon by the learned counsel is condition (b) that "the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Chairman or Vice-Chairman, as the case may be". The learned counsel, therefore, argued that the disqualification on the date of nomination is the only test for an Election Tribunal also to invalidate the election. The Election Tribunal is debarred from going into the question of any fresh disqualification incurred by the candidate after the nomination. From this, he gathered that a disqualification incurred later cannot be taken into consideration.
42. The learned counsel for the petitioners, on the other hand, relied upon section 21 which deals not only with the disqualifications of candidates but also with the disqualifications of members. He argued that prior to the election a person is only a candidate. He becomes a member when he is eclared as such after necessary counting. As stated above, the learned counsel relied upon section 29(1) (a) which authorises the Government to remove a member if he incurs any of the disqualifications enumerated in section 21.
43. Now the Ordinance and the Rules provide several remedies during the course of election as well as after, for dealing with inter alia the disqualifications of a candidate. Section 17 authorises the Election Authority to exercise such powers including the power to review an order passed by an officer under the Ordinance and rules and make such consequential order as may, in its opinion, be necessary for ensuring that an election is conducted honestly, fairly and in accordance with the provisions of the Ordinance and the Rules. Thus section 21-A provides for election of a non-political nature and prohibits any person from directly or indirectly giving him out as a candidate or nominee of a political party ; receiving any financial assistance for the purpose of election from any political party ; bearing, displaying or carrying any document, sign, insignia, flag or any other thing indicating his association with or affiliation to a political party ; seeking the votes or sympathies of the people on party basis or on the basis of the manifesto of any political party ; or seeking the votes or support of the people by attributing direct or indirect party affiliations to any of his opponents, and any person contravening any of the provisions of subsection (1) shall be liable to be disqualified by the Election Authority to contest elections under the Ordinance for a period of 4 years. The Election Authority by subsection (3) has been authorised to remove a person from membership for contravention of these provisions even after his election. Prior to the actual election the qualifications and disqualifications existing on the date of filing of the nomination papers can be adjudicated upon by the Returning Officer. After the election the qualifications and disqualifications as on the date of the nomination can be scrutinised and taken into consideration by the Election Tribunal. Then comes section 29 which empowers the Government to remove a Member from a local council if he incurs any of the disqualifications enumerated in section 21.
44. It would not, therefore, be correct to say that simply because section 20 deals with the qualifications as on the date of filing of the nomination papers or the rules provide for scrutiny of qualifications or disqualifications at the time of nomination only by the Returning Officer or by the Election Tribunal, the other provisions should also be likewise interpreted. The jurisdiction of the Election Tribunal or the Returning Officer is restricted but the Election Authority or Government in respect of contravention of law or in case a member incurs disqualification, have been empowered to take action against him and to remove him. Thus a person who contravenes section 21-A can be removed from membership by the Election Authority. Similarly, under section 17 much wider powers have been conferred upon the Election Authority and section 29 empowers the Government to step in if a member "incurs any of the disqualifications enumerated in section 21". In these circumstances, nothing turns on the limited powers conferred by rules on the Election Tribunal or the Returning Officer in respect of scrutiny of qualifications or disqualifications.
Moreover, even if no remedy is provided for under the Act, that would not debar the High Court from issuing a writ or order in the nature of quo warranto. I cannot, therefore, agree with the argument that the terminus a quo of the disqualification is the date of nomination.
45. Section 29 is almost similarly worded as section 54 of the Electoral College Act, 1964. Section 53(1) of that Act provided for the disqualification Clause (h) thereof provided for disqualifications adopted from the Elective Bodies (Disqualification) Order, 1959, or any other law for the time being in force. Subsection (2) provided exceptions to the scope of adoption while subsection (3) provided that "a member of the Electoral College shall cease to be such member if-
(a) he ceases to be qualified to be enrolled on the electoral roll for any electoral unit ;
(b) he fails to make the oath under section 52 ; or
(c) he fails to perform without reasonable cause for a continuous period of six months any of his functions as such member under the Constitution or any other law for the time being in force.
46. Section 54 provided for removal of such member if he "has become disqualified under subsection (1) of section 53 from being, or has ceased under subsection (3) of that section to be, such member".
47. Section 29 also provides for removal on the ground enumerated there. This section is reproduced hereunder :-- "(1) Government may, after giving him an opportunity of being beard, remove a chairman, vice- chairman or a member of a local council from office if he -
(a) incurs any of the disqualifications enumerated in section 21 ;
(b) absents himself without reasonable cause from three consecutive meetings of the local council ;
(c) is guilty of misconduct ; or
(d) refuses to take oath under section 27.
' Explanation.-In this subsection 'misconduct' includes bribery, corruption and misappropriation or unlawful diversion of funds of the local council or any attempt at, or abetment of such misconduct.
(2) A member or chairman or vice-chairman removed under subsection (1), may prefer an appeal in the manner prescribed to the officer or authority as may be appointed by Government.
(3) A chairman or vice-chairman removed from office shall cease to be a member."
48. Now in Rahimud Din v. Bashir Ahmad (1) it was held that "section 53 read with section 54 of Electoral College Act 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."
' In that case an application was made under section 54 to the Deputy Commissioner alleging that Bashir Ahmad respondent having been removed from service of the Government on ground of misconduct or corruption was, by virtue of Article 5 of the Elective Bodies (Disqualification) Order, 1959 read with section 53(1) (h) was disqualified from being a member up to the 31st December, 1966. The Deputy Commissioner dismissed the application on the ground that section 54 of the Electoral College Act would apply only to a case where a person has become disqualified and not to a case where a person had already suffered from the disqualification at the time of election. It was in these circumstances that it was held that section 54 read with section 53 envisages circumstances where the disqualification may have escaped the notice of the interested party but is discovered later on.
49. If this interpretation is applied to section 29 of the Local Government Ordinance, 1979, it will have to be given a much wider connotation. While section 54 applied, to a case where a person has become disqualified, section 29 is applied when a member incurs a disqualification. The dictionar meaning of the word 'incur' is 'Fall into, bring to oneself, (danger, blame, punishment, etc.)" (See Concise Oxford Dictionary). The incurring of dis qualification must be inter alia by 'member'. Section 29, therefore, must b held to apply to a case where a person incurs some disqualification after hi election which means that though a person may have been qualified at the time of election, but action can be taken against him under section 29, if he subsequently incurs any disqualification. In view of the rule laid down I Rahimuddin v. Bashir Ahmad section 29 should be taken to have authorised the Government to remove even those persons who were already disqualified at the time of their election but whose disqualifications had escaped notice.
50. The learned counsel for the respondents insisted that this would amount to cutting down the term of membership which otherwise would be four years and this would create an irrevocable discrepancy between section 29 and the term of office of four years as provided by section 26.
51. I do not agree with this argument in view of the clear language of section 29. There can be no discrepancy between the provisions. The term of four years under section 26 can, read in the light of section 29, accrue to the benefit of a person who continues to be free of the taint of disqualification under section 21 throughout the term of his membership.
52. Any other interpretation would lead to anomalous results. The first disqualification under section 21 is about a person who ceases to be a citizen of Pakistan. Surely a person who ceases to be a citizen of Pakistan cannot be allowed to continue as a member. Similarly, a person who becomes of unsound mind later and is so declared by a competent Court cannot be allowed to continue as a member. It will be too anomalous to hold that a person who after his election as a member turns psychotic and is so declared by a competent Court should have a right to continue as a member for full period
(1) PLD 1968 Lah. 705 of four years despite unsoundness of mind and despite his inability, if quite, to make any contribution to the proceedings of the council, and if violent, notwithstanding his wont to hurl abuses in its meetings on all and sundry and to break their heads or at least the furniture. If the answer to this question be in the negative, which it must be, it has to follow that if he accepts a salaried office of the Federal or Provincial Government or of a Statutory Corporation, or a local council or other local authority, or has been convicted for an offence involving moral turpitude for not less than six months or accepts a contract for work to be done or goods to be supplied to the local council or has otherwise any pecuniary interest in its affairs, he shall have to lose the membership under section 29. There is no earthly reason why this principle should not equally apply to cases covered by clause (1) of section 21, Consequently, if a person even after his election as a member incurs a disqualification on account of the provisions of clauses (7-a) and (7-c) of section 10 of the President's Order No, 5 of 1977, action under section 29 can be taken by the Government.
53. In view of this wide scope of section 29 it would not be possible to urge that the disqualification must be a disqualification as existing only on the nomination day and not a disqualification incurred later. I would be willing to give effect to this argument if section 29 had not been a part of the Statute Book, but in these cases we have to gather the legislative intent in the light of section 29.
54. It was argued that the membership or non-membership of a political party has no relevance to the objects of Ordinance VI of 1979, and therefore, in a case of adopted legislation only these petitions must be adopted which are in conformity with the object' of the parent legislation.
55. The assumption on which this argument is based is not correct. Section 21-A, as stated above, provides in no uncertain terms about the absolute non-political nature of the election. A person who is a member of a political party which enjoys some popularity cannot be expected to fight an election without taking advantage of his political alignment and association. The association with a political party, therefore, would itself be a relevant fact. But if the law enjoins for registration of the political parties and debars members or associates of an unregistered political party from being elected to the highest legislative Bodies of the Province or the country, there appears to be no reasonable hypothesis on which bar of such persons to an election to the lower strata of democratic institutions can be held to be irrelevant or unjustified. Hence the further argument that the concept of disqualification is personal rather than partisan loses all its significance.
56. It was also argued by the learned counsel for the respondents that section 21(f) adopts disqualification under any law and not by any law. But the reference to section 10 of President's Order No, 5 of 1977, would t. Make the adoption of disqualification by an Act of Legislature and not under an Act. The learned counsel relied upon Narayanaswamy Naidu v. Krishana-. Murthi (1), Indramani v. W. R. Nathu (2), and Aril lftikhar v. Lahore Improvement Trust (3). He further argued that the distinction between the words "by" and "under" is material for concluding whether the disqualification under section 10 advances the object of section 21(f).
57. I have already dealt with the question of object but even these cases do not help. In the Madras case it was held that the disqualification would be
(1) AIR 1958 Mad. 343 (2) AIR 1963 SC 274
(3) PLD 1969 Lah. 1087 imposed "by" a law made by Parliament when the Parliamentary statute directly enacts the disqualification or imposes a prohibition upon certain persons to stand for election. The word "under a law" would signify those cases where the disqualification is not to be found in the Parliamentary statute itself but is imposed by virtue of powers enabling this to be done. In Indramani v. W. R. Nathu it was held that "by" an Act would mean by a provision directly enacted in the statute. The words "under the Act" would, in that context, signify what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done, in other words, bye-laws made by-subordinate law-making authority which is empowered to do so by the Parent Act. In Arif Iftikhar v. Lahore Improvement Trust it was pointed out that the petitioners' counsel frankly conceded that he did not find any difference between the phrase "under the constitution" and the phrase "by virtue of the constitution". In Stroud's Judicial Dictionary various meanings were given to the word "under" and similarly the word "by" has been used in different senses. The phrase "under or by virtue of" has also been used sometimes in the sense of `in pursuance of in English Statutes.
58. The learned counsel for the petitioners took us through not only the Stroud's Judicial Dictionary but also through the Oxford English Dictionary in which one of the meanings of the word "by" is "according to, in accordance with, in conformity or harmony with "while one of the meanings of the word "under" is `in accordance with'. This meaning points out clearly that these words are sometimes interchangeable also. Thus, while on one hand the cases relied upon by the learned counsel for the respondents point out that "by" is used when the statute itself directly envisages disqualification, the word "under" would signify those cases where the disqualification is not to be found in the Parliamentary statute itself but is imposed by virtue of powers enabling this to be done. There are cases in which the word `under' has been used in relation to the provisions of the same statute. Thus in Karim Bux Jatoi v. Crown (1), while interpreting the words "under this section" it was held that release on bail under section 498, for the purpose of cancellation of bail should be deemed to be release under section 497(5), Cr. P. C. Similarly in All Muhammad v. Federation of Pakistan (2), the words "under this Act" were held to mean "by use of machinery" provided by the Act. In Abdul Rauf v. Abdul Hamid Khan (3), it was held that "no order is an order passed `under the Act' if it was not passed in exercise of powers granted by the Act and was therefore without jurisdiction".
59. Nothing therefore, turns upon the distinction drawn by the learned counsel for the respondents in the language whether the word "by" is used) or the word "under" is used. Now section 21 provides for certain disqualifications. Clause (1) refers to disqualifications under other laws. It is for this reason that the word 'under' though interchangeable with 'by' is the most apt word.
60. But as the learned counsel proceeded with the argument on the distinction between "by" and "under" it was clear that what he wanted to argue was that the use of the word "under" would suggest that the laws which are being adopted are in the nature of subordinate legislation. But this is not correct. The nature of the legislation cannot be construed by the use of the word "under" or "by". It is only an adoption by reference of other legislative provisions of similar intensity or credit and it would not, therefore,
(1) PLD 1952 Sind 43 (2) PLD 1963 Lab. 210
(3) PLD 1965 SC 671 be open to the respondents to challenge the provisions as ultra vires on grounds of unreasonableness as may be possible in the case of a bye-law.
61. The next argument on which considerable time was spent was that in view of Martial Law Regulation which dissolved the political parties, the disqualifications as laid down in clauses (7-a) and (7-c) would no more be applicable.
62. Section 3 of Martial Law Regulation No, 48 provides that notwithstanding anything contained in the Laws (Continuance in Force) Order, 1977 (C. M. L. A.'s Order No, 1 of 1977), or in any other law or legal instrument for the time being in force including Martial Law Regulations or Orders, all political parties in Pakistan with all their groups, branches and factions shall cease to exist and no person shall henceforth be a member or call himself a member of any of the parties or be an office-bearer thereof.
63. It was, therefore, argued that since from the 16th of October, 1979, all political parties had ceased to exist and no person could be either an associate or a member of a political party, the provisions of clauses (7-a) and (7-c) have lost their force and the election of the respondents had attained validity at least from that date. It was also argued that Local Councils were not formed till long after the enforcement of Martial Law Regulation No,
48. It was, in fact, formed after the elections of the, members belonging to the minority communities which took place on the 5th December, 1979 ; elections to special interest seats which were held on 12th December, 1979, and elections of Chairmen which were even later. The Local Councils, therefore, were formed after the enforcement of Martial Law Regulation No,
48. In this connection reference was made to Kamal Hussain v. Sirajul Islam (1) and Hari Shankar v. Sukhdeo Prasad (2).
64. The facts in the Supreme Court case were that according to section 5(1) (b) of the Elective Bodies (Disqualification) Order, 1959, persons who had been detained under the provisions of the East Bengal Public Safety Ordinance, 1959, or under any other detention law were disqualified until the 31st December, 1966, from being members or candidates for the membership of any Election Body though the said Disqualification Order of 1959 was to remain in force only up to the 31st of December, 1966. The appellants in the Supreme Court were elected to the Bar Council before the 31st December, 1966. Their elections were set aside by the High Court of Dacca on a writ petition filed by Skald Islam respondent but that order was recalled by the Supreme Court. It was held that since the disqualification continued only up to the 31st December, 1966 and on the 1st January, 1967, the appellants had already shed their disqualification, the only bar to their election as members of the Bar Council was removed before the Council was established. The appellants and two respondents who suffered from a temporary disqualification were free from its taint and could validly have sought election to a body which came into existence after that date when their disability was over.
65. In the Allahabad case the petitioner challenged the constitution of the Election Tribunal on ground that one of the members was not qualified to act as such member on the date of his appointment, but as on the date of hearing of the petition he had become so qualified and there was nothing to bar his re-appointment, the High Court refused to entertain an application under Article 226 on the ground that on the date of hearing of the election
(1) PLD 1969 SC 42 (2) AIR. 1954 All. 227 petition he had become so qualified and there was nothing to bar his reappointment. The irregularity was thus cured.
66. The principles of the authority of the Supreme Court as well as of the Allahabad case would not apply to the present case. In the Supreme Court case the disqualification was up to a particular date and had to shed automatically on 31st December, 1966. There is no such provision in the Presidential Order No, 5 of 1979, or section 21 of the Local Councils Ordinance, nor had, as seen above, Presidential Order No, 5 of 1979 come to an end. In a case of temporary legislation the principle is that after its expiry it will be treated never to have existed. On the 1st of January, 1967, when the Council was established, the last vest of that temporary legislation had disappeared and on the above principle it would follow that these disqualifications never existed. It appears that in these circumstances the appellants were treated to be free from all taints of disqualification.
67. The Allahabad case is also clearly distinguishable. It was a case where the High Court held that a person could be re-appointed after he had attained qualifications. But the case of re- appointment is altogether distinct from the case of election. Re-appointment may be made by an order of a single authority but election involves a long process as well as voting by the electors.
68. The question for determination in this case would be on what date a person becomes a member, and not when the Local Council is constituted. If he was not qualified to be a member or ceased to be qualified to be so, his membership would be altogether void, and he would have no authority to be treated to be a constituent of the Local Council even if the same is established much later. It was for this reason that the arguments were addressed by both sides on the question as to the point of time when a person becomes a member or comes to hold an office.
69. The learned counsel for the petitioners dwelt upon rules 49 and 64. Rule 49 deals with the notification of names of members and rule 64 is about the oath of office to which all persons elected must subscribe. He submitted that before this a person is only a returned candidate as stated in rules 22(3) and 41 of the Election Rules. The object of this argument is that since the notification was made on the 9th October, a member did not become a member for so long as this notification was made and all the disqualifications under clause (7-c) having become fully effective on the 8th October and as such, having suffered from those disqualifications, the elections of elected persons, prima facie, could not be notified nor they could be given any oath.
70. Mr. Khalid Farooq, learned counsel for the respondents pointed out that according to rule 2(o), a returned candidate means a declared member. He also referred to rule 40(8) and section 3(x) that 'elected member' means a member who is elected. He, therefore, pointed out that the date on which the person should be treated to be a member is the date of declaration of the election results which in the case of election to the, Local Councils in the Punjab was the 27th of September, and since clause (7-a) came into force on 8th October, 1979, there was no disqualification on the membership. However, later on, the argument was changed. It was argued that quo warranto could not be issued unless a person holds office and such function could not be performed unless Local Council was constituted.
71. It is not material, in view of what has been stated above, whether these provisions came into force at the time of elections as members or subsequently since in view of section 29, a person in either case is liable to be removed, from membership. But in the present case it appears that clause (7-a) had already been enforced on the 19th of September, 1979, and it provided at that time that a person would be disqualified from membership to a Provincial Assembly or Parliament if he is a member of a political party which has not been registered or the registration of which has been cancelled under the Political Parties Act (III of 1962). This clause was amended subsequently on the 8th October, 1979, to read as follows :- "(7-a) if he is a member of a political party which is not eligible under Political Parties Act, 1962 (III of 1962) to participate in an election to a seat in House of Parliament or Provincial Assembly or to nominate or put up a candidate at any such election or."
' Clause (7-c) was added on the 27th September, 1979, and it was enforced on the same date when the election results were declared. The election results were declared during office hours while this clause must be treated to have been enforced soon after mid-night on the 27th September, 1979. I, therefore, agree with the argument of the learned counsel for the petitioners that clause (7-c) disqualified the respondents from being declared elected as members since according to section 21 the disqualification is not only against candidature but also against election to membership.
72. Clause (7-a), as already seen above, had come into effect on the 19th September when the election had not even been held. The amendment of that clause was necessitated on account of the amendment in the Political Parties Act.
73. It was however, argued that the effect of clause (7a) as enforced in September was inchoate. It disqualified anly members of political parties which had either not been registered or registration of which had been cancelled under Political Parties Act. On the 19th September, 1979, there was still time till the 30th of that month for a political party to apply for registration, In these circumstances, it could not be said that on the 19th September, 1979, the Pakistan People's Party was an unregistered political party or a party of which registration had been cancelled.
74. It was further argued that clause (7-a) which deals with ineligibility of a party to participate in election was introduced on the 8th October, 1979, and on that date clause (7-a) provided for disqualification of a person if "he is a member of a political party which is not eligible under Political Parties Act, 1962 (III of 1962) to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such Election".
75. The object of clause (7-a) was clearly to disqualify a member of, inter alia, unregistered political party from being elected to the Parliament or Provincial Assemblies. If a party was not eligible to be registered as a political party under the Political Parties Act, 1962, the disqualification would extend to such a person also. It was not the intention of law to allow members of the Political Parties which were incapable of seeking registration under the Political Parties Act to be qualified for membership of the Parliament or Provincial Assemblies though if a party's registration was refused or cancelled its members would not be eligible or qualified to seek election to these forums.
76. The Political Parties Act had introduced on the 30th August, 1979, sections 3-B (4) and 3-B (6), with a specific object that, inter alia, a political party which has not been registered shall not be eligible to participate in an Election. It would, therefore, include the case of a party which is not qualified to be registered at all. Though this point was clarified by a, subsequent amendment but the intention of the law-makers was ab initio quite clear. While sub-clause (6) of section 3-B of the Political Parties Act debarred an unregistered political party. From .Participating in the election to the Parliament or Provincial Assembly or to nominate or put up a candidate at any such Election, clause (7-a) of section 10 of President's Order No, 5 of 1977 extended the same disability to members of Political Parties, inter alia, which had not been registered. The interpretation that disability extended under section 3-B (6) even to Political Parties which were not eligible for applying for registration would apply to the interpretation of clause (7-a) also. Consequently, a member of a party ineligible to seek registration was also ineligible or disqualified from seeking election to the Parliament or Provincial Assembly.
77. One of the conditions for applying for registration, as seen above, was that the Political Party must have furnished accounts to the. Commission under section 3-A within 15 days from the date of notification. A Political Party which failed to submit its accounts within that period was debarred from applying for registration or was ineligible to seek registration. It is not denied and is undeniable that the Pakistan People's Party did not furnish necessary accounts up to the 18th September, 1979, which was the last date for furnishing the accounts. Consequently, on the 19th September, 1979, it was ineligible to seek registration and consequently clause (7-a) mad them disqualified to seek elections to the Parliament or Provincial Assembly and by virtue of section 21 (f) that disqualification extended to their seeking election to the Local Council also. Its members or associates had lost their right to be elected as members of the Local Council either on 19th September or at worst on 27th September, 1979. Their elections being void long before the enforcement of Martial Law Regulation 48, validation could he accorded to the same on account of enforcement of the Regulation with effect from the 16th October, 1979.
78. I would now revert to the interpretation of Martial Law Regulation No,
48. The history of this Regulation is that the present regime had T taken over on the 5th July, 1977, with the specific declared objective of holding the election and transferring the power to the elected representatives of the people. The imposition of Martial Law and take over of the Government by the Chief Martial Law Administrator General Muhammad Zia-ulHaq, was held valid by the Supreme Court of Pakistan in the case of Begum Nusrat Bhutto v. Chief of Army Staff etc. (1). It was held that "It seems , therefore, that on facts, of which we have taken judicial notices, namely, that imposition of Martial Law was impelled by high considerations of State necessity and welfare of the people, the extra-constitutional step taken by the Chief of the Army Staff to overthrow the Government of Mr. Z. A. Bhutto as well as the Provincial Governments and to dissolve the Federal and the Provincial Legislatures stand validated in accordance with the doctrine of necessity".
79. It appears clear from the judgment that the necessity was referable to intention into alia to preserve the Constitution. At page 715 of the report it was stated that :- "It will be seen that the declared objectives of the imposition of Martial Law
(1) PLD 1977 SC 557 are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely the parts dealing with the Federal and Provincial executives and Legislatures."
' The legal position was summed up at pages 715 and 716 and it was emphasised that the 1973 Constitution will remain the supreme law of the land subject to the condition, that certain parts thereof have been held in abeyance on account of State necessity and that the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged in the light of the principles underlying the law of necessity. The points that Martial Law was imposed in the country to ensure the restoration of democration institutions under the Constitution' was again stressed in the case of Mr. Zuffiqar Ali Bhutto v. State (1). In that case the appointment of the Chief Election Commissioner was challenged as being in violation of Article 216 of the Constitution. Since the appointment had been made under the Post Proclamation Order 4 of 1977, it was held that this appointment was not a regular and permanent appointment falling within the ambit of the Constitution and in this manner the ad hoc nature of Post Proclamation. Order 4 of 1977 was stressed.
80. The main proposition laid down by their Lordships of the Supreme Court is that the elections must be held by the present regime under the Constitution of 1973, which, in view of its Article 17, which no doubt is under suspension these days, and the Political Parties Act, 1962, could be held on party basis. Now the election scheduled to be held on the 17th November, 1979, was postponed indefinitely on 16th October, 1979 on account of alleged non-cooperation of some Political Parties and in order to put a stop to political activity Martial Law Regulation 48 was enforced. Viewed in the light of the rule laid down as regards the ad hoc and temporary nature of appointment of the Chief Election Commissioner it would be clear that the steps taken by M. L. R. 48 are no more than those of temporary suspension of political activity. It can be treated only to be an ad hoc arrangement u and not complete dissolution of political parties. The political parties can at most be said to be in abeyance in the same manner as political activity is in a state of hibernation.
81. It is not thus possible to read any dissolution of any Political Party as such in this Martial Law Regulation No,
48. Permanent dissolution of a political party is possible by following the procedure laid down in Article 17 of the Constitution and in the Political Parties Act which itself is a permanent statute. Whenever time is ripe for holding the elections and the elections are held the President/Chief Martial Law Administrator, will have to withdraw this Martial Law Regulation which otherwise also cannot be given the status of a permanent statute. It is only a manner of temporary suspension of political activity. It would not, therefore, be correct to say that the Political Parties having been dissolved the provisions of the Political Parties Act, on the one hand, and the consequential provisions of clause (7-a) and clause (7-c), on the other are rendered absolutely useless and unavailable.
82. Even assuming for the sake of argument that what the learned counsel for the respondents argued on this point has some force, it cannot affect the declaration about the election of the respondents being void, if once
(1) PLD 1978 SC 40 is proved that the respondents were disqualified from being elected as members of the Local Councils. The Court cannot be expected to perpetuate the void elections of such persons and to allow them to act as members contrary to the clear intention of the law.
83, The last question is as to what relief should be granted in the present case. So far as Writ Petition No, 2449 of 1980 is concerned, that question does not arise in it. In that case Commissioner empowered, as he is, to take action under section 29 of the Ordinance against a person who has incurred a disqualification for election to the Local Council, has removed the petitioner from membership of Town Committee, Jampur, District Dera Ghazi Khan, on the ground that his nomination paper for participation in the election to the Provincial Assembly from PP-186-DGK-III was rejected on the 3rd October, 1979, and having been held disqualified to seek the election to the Provincial Assembly he was also disqualified from seeking election to the Local Council, Jampur. In view of what has been held above the order of the Commissioner is unexceptionable. That writ petition is dismissed.
84. In other cases all the elected respondents have raised objections to the issuance of quo warranto on the ground firstly that quo warranto cannot be issued if disqualification had ceased to exist on the date of issuance of the writ, secondly that in many a case the form of prayer is that of certiorari for which an equally adequate and effective remedy is open at least under section 29 of the Ordinance and thirdly that on the date of filing of the writ petitions the respondents had not even taken oath and had not thus entered into office while quo warranto can be issued in respect of persons holding office.
85. The last argument is without any merit since even if it is conceded that petitions for quo warranto were prernature on the dat when they were filed, they matured later, since it is now admitted that oath w had been administered to all the elected persons. These petitions cannot, therefore, be dismissed simply on the ground of pre-maturity. The resul would not be different even if fresh petitions are filed. Such an argumen was repelled in Amina Begum v. Ghulam Dastgir (1) and National Steel v. Mrs. F. Afsar (2).
86. The nature of quo warranto was discussed in Muhammad Ali v. Muhammad Bashir (3). It was held that "Quo warranto is the remedy or proceeding whereby the Court inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, to have the same forfeited, and to recover li it, if, having once been rightfully possessed and enjoyed, it has become forfeited for misuser or non-user. Generally speaking, the proceedings will not lie where there is another adequate remedy available, but the existence of alternative remedy by way of an election petition does not exclude the jurisdiction of the High Court to issue a writ of quo warranto in suitable X cases, particularly in case of continuing disqualification or a disqualification incurred after the election. The decision whether the High Court will interfere, or not, in quo warranto proceedings shall depend on the facts and circumstances of each case, and the discretion of the Court cannot be fettered by laying down any hard and fast rule in this behalf". In Farzand All v. Province of West Pakistan (4) it was contended that once the name
(1) PLD 1978 SC 220 (2) PLD 1979 SC 819
(3) PLD 1962 Lah. 230 (4) PLD 1970 SC 98 of a person has been registered on the roll of electors, his nomination paper has been accepted and he has been allowed to contest the election successfully, his election cannot be challenged in any other manner save under the specific law providing for challenging elections notwithstanding the fact that no provision has been made in the Constitution or any other law for prescribing a special procedure to meet such a case. It was observe "I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain member of an Assembly even though Article 103 of the Constitution says that he cannot.
Secondly, because, the dispute raised after an election is not a dispute relating to or arising in connection with an election but dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter o defeated candidate in his individial capacity under the Statute. It determine the private rights of two persons to the same office but a proceeding for a information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election.
These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing, Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available precisely for such a purpose." It was further, held that where remedy of election petition was no longer possible or appropriate and the disqualification is continuing one, which debars a person not only from being elected to an office but also from holding that office, there is no reason why relief by quo warranto should not be available. It was further observed that "to refuse the remedy in such a case would produce the strange result that the Court would be thereby perpetuating an illegality".
87. In Masudul Hassan v, Khadim Hussain (I) it was held that "The now obsolete writ of quo warranto was in its nature an information laying against a person who 'claimed or usurped an office, franchise or liberty' and was intended 'to enquire by what authority he supported his claim in order that the right to the office may be determined'. It was necessary for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office".
88. In Pakistan International Airlines Corporation v. Chairman, Punjab Labour Appellate Tribunal (2) it was emphasised that a person should not be allowed to retain illegal gains which the Supreme Court did not permit in the case of Wali Muhammad v. Sakhi Muhammad (3), In Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others (4) a writ of quo. Warranto was issued in respect of directorship of a company incorporated under the Companies Act. These cases furnish sufficient answer to the argument about exercise of discretion in favour of the elected persons.
(1) PLD 1963 SC 203 (2) PLD 1979 Lah, 415
(3) PLD 1974 SC 106 (4) PLD 1975 SC 244
89. The answer to argument that the elected persons could not be said to hold a public office and could not be subjected to a writ of quo warranto is furnished by the case of Hail Muhammad Siddique v. Babu Karam Bakhsh (1). A Division Bench of the Lahore High Court held in that case that a returned candidate does occupy the seat from which he has returned and after the election the said seat is no longer vacant, but gets filled up and it can become vacant only in accordance with law. The returned candidate by virtue of his such occupation of the seat, is to perform a public function to vote for an election of women members. He can, therefore, very safely be called to hold or purport to hold a public office of this peculiar nature. Their Lordships observed as follows :- "It appears to us that the 'constitution of the National Assembly' or `the date of the constitution of the National Assembly', are concepts quite separate from the point as to whether a returned candidate can be said to hold a public office for the purposes of performing the limited functions relevant to that status. A returned candidate as the definition in section 2(xx) of the Ordinance shows is a candidate who has been declared elected as a member. So long as that declaration stands, he occupies the relevant seat and can perform such functions which the law may allow him to perform in that limited capacity. If this interpretation is accepted, then a High Court will be well within its competence to scrutinise the credentials of such a person and if a proper case is made out may stop him from becoming a full fledged member and from taking an oath and in this way may stop the happening of an illegality. On the contrary the interpretation put by the learned counsel for the contesting respondent will lead to prolong and perpetuate illegality which, in our opinion, should not be encouraged. The question is analogous to an appointment order which appoints a person to an office from the date of its issue though it allows some joining time to the appointee. Legislature, in various places, called it as "his seat" or use the phrase as resignation from his seat or his seat becoming or falling vacant etc. All this shows that a returned candidate is a holder and occupier of the relevant seat, and that a declaration that he is a returned candidate, is a step sufficient to enable him to embark upon and use the said office by taking an oath or act otherwise wherever so permitted. Again there is a difference between holding and occupying an office on the one hand and entering upon the duties of that office on the other hand. Lastly, the phrase, 'purporting to hold', as used in Article 98(2) (b)(ii) can, in our opinion, be aptly used and invoked in situations of the present type ; because if that was not so, then the High Court will never be able to scrutinise the credentials of usurpers of offices because they will always come up with the pleas that they do not strictly hold the office. In any case the objection raised is no bar on the part of this Court to examine the; validity of issuing injunction to restrain the respondent from embarking upon the 'claimed office'."
' This case provides complete answer to the argument of the learned counsel for the respondents about the interpretation of 'holder of public office' and it is not possible to add anything to the proposition of law laid down in it,
90. There are several other cases in which on account of disqualification of a candidate for election a writ of quo warranto has been issued. Riaz
(I) PLD 1971 Lab. 912 Hussain v. Fazal Muhammad etc. (1), Mureed Hussain Shah v. The State through Punjab Local Councils Election Authority and 4 others (2), Munir Ahmad v. Returning Officer (3) and Barkat Ali v.
M. S. Zaman (4).
91. Now in the present case no election petition is competent. Since the matter involves intricate questions of law and interpretation of several provisions, even section 29 would not furnish an adequate remedy. In any case, after we have heard the parties for several weeks it will not be in the interest of the parties to dismiss these petitions merely because of there being a remedy.
92. That section 29 does not furnish remedy is further clear from the fact that the Advocate- General of Punjab was asked to furnish information z whether after these cases had come to the notice of the Government it had taken or now proposes to take any action. The learned Advocate- Genera answered in the negative and submitted that according to his instructions action has been taken only in six other cases.
93. According to my interpretation section 29 does not invest the Government with a discretion to take action against some persons on the ground of their incurring disqualification and to leave others. The word `may' in that section cannot be interpreted in that sense. Clearly, a person who is disqualified from participating in election or who has incurred any disqualification after the election cannot be allowed to hold office. If the word 'may' is used in a sense otherwise than imperative, it will lead to an anomaly that while the Government can remove certain persons from membership, it can allow others despite the fact that they are disqualified, are not entitled to hold office or to continue holding office, to thrive under its benign patronage notwithstanding the law to the contrary. I am, therefore, of the view that section 29 imposes a liability upon the Government to take action against any person about whom an information is received by it whether by application by an interested person or otherwise that a person is disqualified to hold the office. It is duty bound to take action against such a person.
94. In the present case, it is clear that the Government is not interested in taking action in these matters. Provisions of section 29 do not, therefore furnish an adequate remedy.
95. There are instances in which several reliefs have been amalgamated but that cannot deter the Court from passing appropriate order and granting the appropriate relief.
96. The correctness of the allegation that the elected persons were members or associates of a party which was not eligible for registration was not disputed before us except in Writ Petition 6111 of 1979. In fact there is no written statement in either case which in the circumstances of the case would clearly imply an admission of the facts stated in the petition. In the case Writ Petition No, 6111 of 1979, also no written statement was filed. It was only in an application for vacation of stay order that it was alleged that the elected person was an independent candidate. But it is a fact that the nomination for National Assembly of Ahmad Yar respondent No, 8 in that case was rejected by the Returning Officer. On exactly the same grounds his. Appeal was dismissed by the
(1) 1980 CLC 839 (2) PLD 1979 Lab. 919
(3) PLD 1966 Ku. 1 (4) PLD 1966 Lah. 770 Member Election Commission. The merits of this case also are not, therefore, different. We, therefore, allow all other petitions and declare that the elected persons in those petitions were not qualified to be elected as members of the respective Local Councils and consequently had no right to hold the offices of franchise. In view of the fact that complicated questions of law are involved in these petitions, the parties are left to bear their own costs.
97. Before parting with these cases, it should be clarified that in some petitions a number of other points were also taken but those have not been considered as almost all other points could be taken or urged in Election Petitions.
' ZAKIUDDIN PAL, J.-I have gone through the judgment of m learned brother, Aftab Hussain, J.
Disposing of all the Writ Petitions, generally agree with the findings arrived at. I would, however, like to add few passages in support of the said findings.
2. The main question involved in all the cases is as to whether the provisions as contained in section 10(2) of the Houses of Parliament and Provincial Assembles (Elections) Order, 1979, introduced by President's Order XV of 1979, particularly clauses (7-a) and (7-c) thereof and the relevant provisions of the Political Parties Act of 1962, can be read into the provision as contained in section 21(f) of the Punjab Local Government Ordinance, 1979. Section 20 of the Ordinance provides for qualifications of candidates and members of the Local Councils. According to that, any person who is of 25 years of age on the last date fixed for filing of nomination papers is qualified to be a candidate for election to an electoral unit of a Local Council, if for the time being his name appears on the electoral roll of that electoral unit. Section 21 of the Ordinance provides for disqualifications of candidates and members of the Local Councils. Apart from the other disqualifications as mentioned in the provision, a person will be disqualified under clause (f) of section 21 of the Ordinance to be a member of Local Council, if he is disqualified for membership of Parliament or a Provincial Assembly under any law for the time being in force.
3. The Punjab Local Government Ordinance, 1979, was enforced on 31st of July, 1979. It provides for the constitution and continuance of Local Government institutions in the Punjab. According to the election schedule of the Local Councils, the date for filing of the nomination papers throughout the province was fixed as 12th of September, 1979, while the elections were to be held on 25th of September, 1979. The election results were to be announced on 27th of September, 1979, and were notified in the official Gazette on 9th of October, 1979. It is admitted that in almost all the cases the members so notified took oath of their offices on 11th of October, 1979.
4. Some of the disqualifications as provided by subsection (2) of section 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, were already in force on the date when nomination papers for election to the Local Councils were filed on 12th of September, 1979.
One of the disqualifications as provided by the aforesaid provision is to the effect that if a person has been in the service of Pakistan or any statutory body or any body which is owned or controlled by the Government or in which the Government has its controlling share or interest, he will not be eligible to be a candidate to contest election to the Local Council, unless a period of two years has elapsed since he has ceased to be in such service. However, clauses (7-a) and (7-c) of subsection
(2) of section 10 of the aforesaid Order of 1977, were added on 19th of September, 1979, and 27th of September, 1979, respectively. Clause (7a) provides that a person will not be eligible to contest election to the Houses of Parliament and Provincial Assemblies if he is a member of a political party which has not been registered or registration of which has been cancelled under the Political Parties Act of 1962. Clause (7-c) provides that a person will not be eligible to contest election if he has during the period of two months preceding the publication of the notification under section 11 of the Representation of the People Act, 1975, been a member or supporter or associated with a political party unless he is put up by that political party as a candidate. Clause (7a) was further amended on 8th of October, 1979, by President's Order, XX of 1979, known as Houses of Parliament and Provincial Assemblies (Elections) (4th Amendment) Order, 1979. According to that a member of a political party which was not eligible under the Political Parties Act, 1962, to participate in the election to a seat in the Houses of Parliament or a Provincial Assembly was disqualified from being a candidate or put up as such for any such election.
5. The Political Parties Act of 1962, was amended at different stages by the previous Government as well as by the present one. We are, however, mainly concerned with the amendments introduced on 30th of August, 1979, whereby sections 3-A and 3-B were added to the Act. Section 3-A provides that every political party shall in such manner and form and at such time as may be provided by the rules made by the Federal Government account for the source of its funds to and submit its finances and account to audit by an Officer or authority authorised by the Election Commission in this behalf, provided that every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall account for the source of its funds and submit its finances and account to audit within fifteen days of the publication of the rules made under this section. Section 3-B provides that every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall within one month of such commencement apply to the Election Commission for registration in such form as the Election Commission may specify which shall be accompanied by certain documents specified therein. Subsection (4) of section 3-B provides for cancellation of registration of a political party for certain reasons as mentioned therein. Subsection (6) of section 3-B further provides that a political party, which has not been registered under section 3 or the registration of which has been cancelled under subsection (4), shall not be eligible to participate in an election to a seat in a house of Parliament or a Provincial Assembly or to nominate or put up a candidate for any such election. The amendment as introduced on 27th of September, 1979, provides for the eligibility of a political party to be registered by the Election Commission; provided it has submitted its accounts as required by section 3-A. The last amendment introduced in the Political Parties Act, dated 8th of October, 1979, provides for registration of political parties which had complied with the provisions of section 3-A, but had not applied for the registration under section 3-B. The rules framed under the Political Parties Act, known as the Political Parties (Audit and Account) Rules, were published on 3rd of September, 1979, making it obligatory for the then existing parties to submit their accounts under section 3-A of the Act by the 18th of September, 1979. By virtue of subsections (3) and (6) of section 3-B, the political parties which had not submitted accounts within the stipulated period were made ineligible to be registered,
6. It is admitted that in almost all the cases the elected members filed their nomination papers for election either to the National or Provincial Assembly as candidates of Pakistan People's Party which neither submitted its accounts nor made any application for being registered under the law or they were associates of that party. Their nomination papers as such were dismissed by the Returning Officers concerned on account of the aforesaid disqualifications. They filed appeals before the Member, Election Commission which were dismissed on the same ground. The petitioners in all the cases have challenged the election of the respondents as members of the Local Councils or Chairman or Vice-Chairman of the same under section 21(f) of the Punjab Local Government Ordinance, 1979, on the ground that since they were disqualified from being elected as members of the National and Provincial Assemblies, therefore, under the aforesaid provisions of law they were also disqualified from being elected as members of the Union Councils, Town Committees, Municipal Committees or District Councils, as the case may be. So far as the rejection of their nomination papers as such is concerned, the same is not denied by the respondents. They, however, dispute the applicability of the provisions as contained in section 1,0(2). Of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, section 21(f) of the Punjab Local Government Ordinance, 1979, and the aforesaid amendments made in the Political Parties Act of 1962, to the elections held under the Local Government Ordinance.
7. The learned counsel for the respondents have raised the following contentions:-
(a) If the disqualifications have ceased to exist on the day the council is to begin functioning, the issue of the writ as prayed for is not maintainable in equity and law.
(b) In any case, if the alleged disqualifications do not exist on the day the issue of writ is to be made, it will not be issued.
(c) Section 21(f) of the Ordinance does not adopt by reference any provision, whatsoever, of section 10 of the Houses of Parliament and Provincial Assemblies Act, as the disqualifications under section 21(f) of the Ordinance are under the Act of Parliament.
(d) In a case of adopted Legislature, adopted statute must be adopted with such adaptations and modifications which are essential for the purpose of the adopting statute and the object of the statute should be kept in view. The adoption of provisions by reference of laws as they stood on 31st of July, 1979, the day when the Punjab Local Government Ordinance, 1979, was promulgated and any other amendment made later in the adopted statute does not in the instant case fall within the intent of legislation as adopted, particularly when the adopting statute could function without such adoption.
(e) The relief asked for is in the nature of quo warranto, which relates to the holding of public office.
Since the public office in question was not held by any of the respondents at the time of filing of the writ petitions, therefore, writ of quo warranto cannot be issued.
8. The provision as contained in section 10(2) (b) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 was already in existence at the time when nomination papers to the Local Councils' elections were filed on 12th of September, 1979. As such there is no dispute, according to the respondents, regarding its applicability to the Punjab Local Government Ordinance, 1979 by virtue of section 21(f). However, the applicability of clauses (7-a) and (7-c) of the aforesaid section, which were .Added on 19th of September, 1979 and 27th of September, 1979, respectively, after the nomination papers had been filed has been seriously challenged. The view that the provisions as contained in the Houses of Parliament and Provincial Assemblies Elections)
Order, 1977, already in existence at the time of filing of the nomination papers are applicable to the elections to the Local Councils under the Punjab Local Government Ordinance, 1975, gets support from Umar Draz Cheema v. Nazar Ahmad and others (1), Muhammad Khan v. Muhammad Sarfraz Khan etc. (2) and Lal Hussain v. Ghulam Sabir etc. I C A No, 559 of 1974.
9. It has been argued that the subsequent amendments introduced in the Houses of Parliament and Provincial Assemblies Order, 1977 adding the disqualifications for the candidates to contest elections to the Local Councils under the Punjab Local Government Ordinance would not be effective as they were not in existence at the relevant time. According to the learned counsel for the respondents the words as used in section 21(f), "for the time being in force" mean the time when the Punjab Local Councils Ordinance of 1979 was enforced, or at the most when the nomination, papers under the Ordinance were filed to the local councils elections and as such the amendments introduced in any other law in force after the aforesaid periods would not affect the result of the elections of the respondents.
10. According to law as held in Amrao Jan v. Amir Muhammad (3) and Mehtab Khan v.
Rehabilitation Authority (4), the phrase "for the time being" may mean the time present or denote a single period of time, but it can also refer to an indefinite state of facts which may arise in future and which may (and probably will) vary from time to time as held in Iftikhar-ud-Din v, Muhammad Sarfraz (5) and as defined in Stroud's Judicial Dictionary, Vol.
4. That being the position in law, the intention of the Legislature in such matters has to be ascertained.
11. Section 21 of the Punjab Local Government Ordinance provides disqualifications not only for the candidates to the elections to the Local Councils, but also for the members of the Local Councils.
Similarly, section 29 of the Ordinance empowers the Government to remove a Chairman, a Vice- Chairman or a member of a Local Council who incurs any of the disqualifications enumerated in section 21. It means that even after having been elected as member, a person can be removed if he incurs any of the disqualifications as mentioned in section 21 in addition to the disqualifications which he may incur under any law for the time being in force. A person after having become member of a Local Council can cease to be a citizen of Pakistan, become an undischarged insolvent, can become of unsound mind can be convicted and sentenced for an offence involving moral turpitude and can be removed under the law for any of the aforesaid disqualifications incurred by him. It may be noted that in the amended section 29, the word "shall" has been substituted for the word "may", indicating that if a person after having become a member incurs any of the aforesaid disqualification then he shall be liable to be removed. This shows the intent of the Legislature. Similarly, even if it is conceded for argument's sake that clauses (7-a) and (7-c), referred to above, being not in force at the time on enforcement of the Punjab Local Government Ordinance or at the time when the nomination papers were filed, may not be applicable to the candidates to the elections held under the Ordinance, but the fact remains that they being provisions of a permanent statute very much in force at
(1) 1980 SCMR 156 (2) 1980 CLC 1
(3) 1972 SCMR 639 (4) PLD 1973 SC 451
(5) PLD 1961 SC 585 present would be attracted against the respondents after their election a members of the Local Councils, if they suffer from the disqualifications a enumerated therein. This view gains strength from Umar Draz Cheema v. Nazar Muhammad and others. The aforesaid case relates to the effect of the provision as contained in section 21(f) of the Ordinance upon the elections to the Local Councils held under the same. It has been held that according to its tenor, section 21(f) tends to bring candidates for Local Councils on the same footing as the candidates for membership of the Parliament or Provincial Assemblies by subjecting them to the same disqualifications in, addition to those enumerated in section 21. It has been held that the word "disqualified" used in clause (f) does not have any particular implication but signifies disability according to the particular language of the provisions of other statutes. This becomes obvious that disqualifications as enumerated in section 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 are to be read in conjunction with the words "under any law for the time being in force". The disqualifications as enumerated in section 21(f) being an integral part of the provision, full effect should be given to them subject, of course, to the limitation that they should not be inconsistent with the disqualifications enumerated in section 21. It has been held that the disqualifications as incorporated in section 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 can be read into clause (f) of section 21 of the Ordinance when clause (f) itself incorporates disqualifications a provided by this section and the other laws. It has been further held that the principle of interpretation is that what is enacted has to be given full F effect and extraneous considerations cannot be employed to make it redundant or to detract it from the meaning which it conveys. According to the Supreme Court, therefore, it would not be proper to read the words "by specific order in clause (f) for the Courts cannot provide the deficiency which can only be done by the Legislature, It means that according to the Supreme Court, the disqualifications as incorporated in section 21(f) as well as other laws for the time being in force would be operative on account of the relevant provision of law and not on account of any specific order to be passed under that law. Further, apart from the fact that the aforesaid clauses (7-a) and (7-c) are provisions of the co-existing law, the same were added at the time when elections of the respondents as members, Chairman or Vice-Chairman of the Local Councils had not been notified.
It is admitted that the notifications in that behalf were issued on 9th of October, 1979 while all the aforesaid amendments covering clauses (7-a) as well as (7-c) were made by the 8th of October, 1979, as discussed above.
12. According to law, election is a continuing process and does no end with the announcement of result by the Returning Officer. Such or continues till a successful candidate is notified as such, because in absence of that he is not eligible to take his seat as member after adminition of oath to him, In this view of the matter the aforesaid provision would be very much applicable having been introduced within time to elections to the Local Councils held under the Ordinance.
13. The learned counsel for the respondents has emphasized while relying upon section 20 of the Ordinance that the disqualifications as incorporated in section 21 of the Ordinance can only be looked into by the Returning Officer on the date of filing the nomination papers. It is Contended that the qualification as mentioned in section 20, that the age of a candidate at the time of submission of his nomination papers should be 25 years and his name should be available as voter in the electoral roll of the electoral unit concerned is the terminus a quo. According to him, if a candidate holds the aforesaid qualifications on the date of filing of his nomination papers then he cannot be disqualified under any other provisions of law containing disqualifications from contesting elections. It is submitted that otherwise effect of the provisions as contained in section 20 would be nullified which according to him is not warranted by law.
' I am afraid, the aforesaid contentions have no force. The various provisions of the Punjab Local Government Ordinance, 1979 envisage that not only qualifications, but also disqualifications of a candidate have to be ascertained at the time of scrutiny of the nomination papers. The disqualifications as contained in section 21-A as well as contemplated by section of the Ordinance would not only make a candidate ineligible to contes election, but even after his election as member of a Local Council would make him liable to be removed if he incurs any of the disqualifications a contemplated by section 21. The word used in the amended section 29 for removal purposes is "shall". It means that if any member after his election incurs any of the aforesaid disqualifications then he is obliged to be removed from his office. Further rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979 provides for declaring election of a returned candidate void if his nomination papers were invalid or if he was not qualified or otherwise disqualified on the nomination day from being elected as a member, Chairman or Vice-Chairman as the case may be. The argument advanced on the basis of section 20 of the Ordinance does not otherwise appeal to sense. It is always necessary to prescribe certain qualifications for contesting election alongwith the disqualifications which may make a candidate ineligible to contest election.
A person who is, of 25 years of age and whose name is available in the relevant electoral roll may be disqualified under section 21 of the Ordinance having ceased to be a citizen of Pakistan, having become insolvent and of unsound mind or having been convicted and sentenced for an offence involving moral turpitude and on account of the provisions as contained in the aforesaid clauses (7-a) and (7-c). The Ordinance also provides for removal of Chairman, Vice-Chairman or a member of Local Council after he incurs any of the disqualifications under section 21. If any of the aforesaid disqualifications are suffered by a candidate at the time of his submission of nomination papers, then on the scrutiny thereof he may be declared ineligible to contest election and if any of the said disqualifications are not disclosed or discovered, as the case may be, then after their discovery an elected member can be removed from office under section 29 of the Ordinance. As such it cannot be said that the qualifications visualised by section 20 of the Ordinance only provide eligibility of a candidate and the date of submission of nomination papers is terminus a quo.
14. The learned counsel for the respondents have also emphasized, while referring to the language as used in section 21(f), that the aforesaid provision has adopted disqualifications under any law and not by any law, therefore, any other law prescribing such disqualifications cannot be read into the provision as contained in section 21(f ).
' I am afraid, this contention has no force. This aspect has been dealt with in detail by my learned brother Aftab Hussain, J. In his judgment and the contentions raised by the learned counsel for the respondent have been rightly repelled. It has been held in Arif Iftikhar v. Lahore Improvement Trust
(1) that there is no difference between the phrase "under the constitution" and the phrase "by virtue of the statute". Stroud's Judicial Dictionary also contains various meanings assigned to the word "under" and the word "by". According to the aforesaid Dictionary, the word "by" means according to, in accordance with and in conformity with, while the word "under" means in accordance with. It means that both the words are interchangeable. In this view of the matter the last words as used in clause (f) of section 21 of the Ordinance, "under any law for the time being in force" mean disqualifications as prescribed by any other law for/ the time being in force, As discussed above, the words "for the time beings in force" do not only connote the period relating to submission of nomination papers or the enforcement of the Punjab Local Government Ordinance, 1979, but also relate to the period when the relevant law was 'subsequently enforced. If this had not been the legislative intent then the language as used in clause (f) of section 21 would have been different, providing for being disqualified under any other law in force at the time of enforcement of the Punjab Local Government Ordinance, 1979 for being a candidate in election to the Houses of Parliament or Provincial Assemblies, The purpose of the aforesaid clause is that a person would not only not be a candidate, but also would not remain a member of a Local Council if he is disqualified for membership of the Parliament or Provincial Assembly on account of the disqualifications even prescribed subsequently by any other law. The perusal of the disqualifications as enumerated in section 21 as well as contained in other laws do not indicate any inconsistencies. The disqualification prescribed by other laws in addition to the disqualifications as provided by section 21 have been made applicable by adoption, which is warranted by law.
15. It has been vehemently argued on behalf of the respondents that after the enforcement of M. L R. 48 on 16th of October, 1979, dissolving the political parties, the provisions as contained in clauses (7-a) and (7-c) of section 10(2) of the Houses of Parliament and Provincial Assemblies (Elections)
Order, 1979 have become ineffective and cannot be, applied to the elections held under the Ordinance. The precise argument advanced in this behalf is that since the political parties have ceased to exist, therefore, the disqualifications incurred by the respondents on account of their association with them do not exist any more and as such their election, at least, from the date of enforcement of M L R 48 has been validated, It has been argued that the Local Councils came into being long after 16th of October, 1979 and by the time the Local Councils were formed in December, 1979 the respondents were eligible to contest the elections, after their disqualifications had ceased to exist on 16th of October, 1979,
16. It has been provided in the aforeraid M. L R. That all political parties in Pakistan with all their groups, branches and factions, hereinafter referred to as the parties, shall cease to exist and no person shall henceforth :-
(a) be a member or call himself a member of any of the parties or be an office-bearer thereof
(b) by words either spoken or written or by signs or visible representation, propogate the manifesto of or any matter in support of any of the parties; and
(c) operate the accounts of any of the parties in his own name or in any bank, or spend or transfer any amount therefrom.
(1) P D 1969 1..
108.7 ' No bank holding the funds of any of the parties shall make any transaction in respect of those funds which now stand frozen.
' Official offices of all the political parties including places not declared as official offices but used for the purpose of political parties, shall be sealed forthwith alongwith all documents and articles kept therein by the Martial Law authority within whose jurisdiction such an office or place is situate.
' No person shall henceforth, directly or indirectly, organise or cause to organise or assist or associate in organizing any political party, or ' indulge in any manner in canvassing or campaigning in public or private in respect thereof.
' No person shall henceforth provide financial or other assistance to any of the parties or propagate the cause of any of the parties or any politician by words either spoken or written, or by sign, or by visible representation or in any other manner whatsoever.
' Para. 7 of the Regulation provides that in case of contravention of any of the provisions of the Regulation, the person concerned shall be punished for rigorous imprisonment for a term which may extend to 14 years and shall also be liable to fine, forfeiture of property and stripes not exceeding twenty-five.
17. In support of the contention that on account of the enforcement of M. L. R. 48, clauses (7-a) and (7-c), referred to above, have lost their effect, reliance has been placed upon Kamal Hussain v.
Sirajul Islam (1) and Hari Shankar v. Sukhdeo Prasad (2).
' According to PLD 1969 SC, some persons who had been detained under East Bengal Safety Ordinance, 1959 or under any other detention law were disqualified under section 5(1)(b) of the Elective Bodies Disqualifications Order, 1959 until 31st of December, 1966 from being members or candidates for the membership of any elective body in spite of the fact that the said Disqualification Order was to remain in force till 31st of December, 196b. The appellant before the Supreme Court was admittedly elected an member of the Bar Council before 31st of December, 1966. Writ Petition was filed before the Dacca High Court challenging the election as such on the basis of the Disqualification Order of 1959, referred to above, which was accepted and the election of respondents in that case was set aside. This judgment, however, was not upheld by the Supreme Court holding that since the disqualifications continued only up to 31st of December, 1966 and the Bar Council of which the appellant had been elected as member was to come into being on 1-1- 1967, therefore, the disqualification, if any, on the part of the appellant having been removed by that date he did not suffer from any disqualification to be a member of the Bar Council.
' The constitution of the Election Tribunal in Allahabad case was challenged on the ground that one of the members was not qualified as such on the date of his appointment, but since he had become. Qualified on the date of hearing of the election petition and there was nothing to bar his appointment, therefore, the High Court refused to interfere in the matter on the aforesaid ground.
18. 1 am afraid, the facts of both the eases referred to above are not applicable to the facts of the present case. In the Supreme Court case, disqualification was to continue up to a particular date and thereafter it had
(1) PLD 1969 SC 42 (2) A R 1954 227 ceased to exist. The Houses of Parliament and Provincial Assemblies (Elections) Order, 1979 as well as section 21 of the Local Government Ordinance, containing certain disqualifications for being a candidate or a member of a' Local Council do not contain any such provision whereby the disqualifications prescribed by clauses (7-a) and (7-c) would be effective up to a particular period, while in the Supreme Court case, referred to above, disqualifications deased to exist after 31-12-1966. The same position obtains in the Allahabad case as well. The question involved in that case was whether a person after having attained qualifications could be re-appointed against a post for which he was not qualified initially. In the present case if M. L. R. 48 is a temporary legislation, as it appears to be, then the disqualifications prescribed by clauses (7-a) and (7-c) being of permanent nature would be applicable to the elections held under the Punjab Local Government Ordinance, which is a permanent statute. The imposition of Martial Law and take over of the then Government by the Chief Martial Law Administrator, General Zia-ul-Haq, on 5th of July, 1977 was validated in Begum Nusrat Bhutto v. The Chief of Army Staff etc. (1). It was held that 1973 Constitution was intact though some parts thereof had been held in abeyance, the declared objectives of the imposition of Martial Law were to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated and only certain parts of which were being held in abeyance ; namely the powers dealing with the Federal and Provincial Executives and Legislatures and the President of Pakistan was to continue to discharge his duties as heretofore under the same Constitution. It was held that after the polling the power was to be transferred to the elected representatives of the people. It was found that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being, but the declared intention of the C. M.
L. A. Still remained the same ; namely that he had stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life. It was held that in the presence of such unambiguous declaration it was highly unfair and uncharitable to attribute any other intention to the C. M. L. A. And to insinuate that he had not assumed power for the purpose stated by him or that he did not intend to restore democratic institutions in terms of the 1973 Constitution.
19. Such being the case, it was held :-
(a) that 1973 Constitution still remained supreme law of the land, subject to the condition that certain parts thereof had been held in abeyance on account of State Necessity ;
(b) the President of Pakistan and the superior Courts continued to function under the Constitution and the mere fact that the Judges of the superior Courts had taken a new oath after the proclamation, of Martial Law did not in any manner derogate from this position as the Courts had been originally constituted under the 1973 Constitution and had continued in their functions in spite of the proclamation of Martial Law Order ; and
(c) the C. M. L. A. Having validly assumed powers by means of extra-constitutional step, in the interest of the State and for the welfare of the people was entitled to perform all such acts and promulgate all legislative measures, which had been constitutionally recognized by the
(1) P D 1977 SC 657 judicial authorities as falling within the scope of the Law of Necessity, namely.
(1) all such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely restoration of law and order, normalcy in the country and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution ;
(ii) these acts or any of them may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations or Orders, as the occasion may require ; and
(iii) the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law authorities, if challenged in the light of the principle underlying the Law of Necessity, as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance.
20. It was further held by the Supreme Court that there was yet another and a stronger reason for holding that the power of judicial review continued. The 1973 Constitution provided for a clear trichotomy of powers between the Executive, Legislative and Judicial Organs of the State. However, owing to the reasons of necessity, Executive and Legislative powers now stand combined in one authority for the reasons that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since 7th of March, 1977, but no such consideration arose in regard to the judicial organs of the State. Accordingly on no principle of necessity could power of judicial review vested in the superior Courts under the 1973 Constitution be taken away. It was held that even if for any reason the principle or power of judicial review embodied in the relevant provisions of the Constitution be held not to be available under the new dispensation, the fact remains that the Ideology of Pakistan embodying the doctrine that sovereignty belongs to Allah and was to be exercised on His behalf as a sacred trust by the chosen representatives of the people strongly militates against placing the rules for the time being above law and not accountable to any one in the realm. It was held that Muslim rulers had always regarded themselves as being accountable to the Courts of the land for all their actions and had never claimed exemption even from personal appearance in the Courts. The Courts of justice were embodiment and symbol of the conscience of the Milkat (Muslim Community) and provided an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law authorities must continue to remain in the superior Courts.
21. The above findings and observations made by the Supreme Court in the aforesaid judgment clearly indicate that the present regime is obliged to hold elections as early as possible under the Constitution of 1973, which as well as Political Parties Act, 1972, which is a permanent Statute, provide elections on party basis. According to that judgment it is one of the conditions precedent on account of which promulgation of Martial Law has validated, to hold elections under the 1973 Constitution. That being so M. L. R. 48, dissolving the political parties for the time being cannot be to be a permanent legislation, as in that case it will be violative of the conditions laid down in the judgment of the Supreme Court in Begum Nusr Bhutto's case, which has given lease of life to the present regime. In this view of the matter, the aforesaid Regulation is a temporary measure, postponing the elections as well as stopping political activity in the country o account of alleged non-cooperation of some of the political parties in holding the elections. The dissolution of political parties, as such, on permanent basis cannot be read into the provisions as contained in Martial La Regulation No, 48 in view of the clear findings and observations made is Begum Nusrat Bhutto's case by the Supreme Court. Since the political parties have not been dissolved permanently, but their activities have been suspended temporarily, therefore, the provisions as contained in clause (7-a) and (7-c) of section 10(2) of the Houses of Parliament and Provincial Assemblies (Elections)
Order, 1977 are very much available and applicable to the elections held under the Punjab Local Government Ordinance, 1979.
22. As held by the Supreme Court in the aforesaid judgment, the powers under Article 199 of the Constitution being very much available to the superior Courts to their full extent and liable to be exercised notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance, any Matial Law Regulation issued by the President curtailing the powers of the superior judiciary and taking away its power of judicial review in certain 'respects under the aforesaid Article, prima de, being contrary to the Supreme Court's judgment will not be a valid of legislation. However, since this question is not dircetly involved in the present case, therefore, I need not dilate upon the same. It will be dealt with a' the proper stage, when so required.
3. The Political Parties Act, 1962, as mentioned above was amended at different stages introducing sections 3-A, 3-B, and subsection (6) of section 3-B. The said provisions have already been reproduced above. The intention of the Legislature in introducing the above-mentioned amendments is to allow such political parties to function which are really working as such on sound and healthy basis having their accounts and finances in order. If a political party does not submit its accounts as required by section 3-A and does not apply for being registered, then under subsection (6) of section 3-B, it will not be eligible to participate in the elections. It is admitted that every political party which wanted registration by the Election Commission for the purpose of contesting elections to be held in November, 1979 was obliged to submit its accounts by 18-9-1979.
It is admitted that some of the politial parties, including the P. P. P., not only did not submit its accounts, but also never applied for being registered. Clauses (7-a) and (7-c) were introduced b.
Way of mendment in section 10(2) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 disqualifying such persons from being or chosen as and from being members of Parliament if they were member of a political party which had not been registered or the registration of which had been cancelled under the Political Parties Act, 1962 or if they had been during the period of two months preceding the publication of the notification under section 11 of the Representation of the People Act, 1976 being, members o supporters or associated with a political party unless they were put up by that political party as candidates. These amendments were necessitated on account of the aforesaid amendments introduced in the Political Parties Act, 1962 Since some of the political parties never submitted their accounts nor application for being registered, therefore, it became necessary to disqualify even their members from participating in the elections. According to the aforesaid amendments, a political party which did not submit its accounts by 18-9-1979 before the prescribed authority, was not eligible under the law to submitted application for the purpose of being registered as a political party. Since some of the political parties, including the P. P. P., did not submit their nor applied for registration, therefore, they became ineligible not only on 18-9-1979, but also on 30-9-1979, the last date for submitting applications for being registered. As a matter of fact, since some of the political parties, including the PPP, as mentioned above, did not submit their accounts on 18-9-1979, therefore, they were not eligible to apply for the purpose of being registered.
24. It has been argued that the aforesaid amendments as introduced in the Political Parties Act as well as in the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 were primarily meant for disqualifying certain political parties from taking part in the elections, therefore, the respondents in spite of being the members or associates of such political parties cannot be hit by them under the law. I am afraid, this contention has no force. Clauses (7-a) and (7-c) clearly debarred such persons who were members or associates of such political parties which had not been registered from taking part in the elections to be held on 17-11-1979. Evidently, if a political party had become ineligible to contest elections on account of the aforesaid disqualifications incurred by it, then its members or associates could not be allowed to take part in those elections, otherwise the amendments introduced in the relevant statutes would have become redundant. As such, they are equally applicable to such persons who were found to be members or associates of any unregistered political party.
25. In the present case, it has not been denied in the Court by the learned counsel for the respondents that their clients were members or associates of the PPP, which never submitted its accounts on the due date and never applied for being registered. Clauses (7-a) and (7-c) of section 10(2) of the Houses of Parliament and Provincial Assemblies (Elections) Order were introduced on 27-9-1979. It means that P. P. P. Had become ineligible to take part in the elections on account of its failure to submit its accounts for scrutiny by 19-9-1969. As such the respondents, who were admittedly members or associates of the P.P.P. Not having been registered under the law, were not eligible to contest elections and even if elected were disqualilied to continue as members of the Local Council.
' It is also admitted that in some of the cases the respondents were not only disqualified under the aforesaid clauses (7-a) and (7-c) by the Returning Officer to contest election to the National and Provincial Assembly, but their appeals against such orders were also dismissed on that ground by the Member, Election Commission. The disqualification, as such, to contest such election was established.
' The contention, therefore, that the respondents being only members or associates of unregistered political party would not be hit by the aforesaid clauses (7-a) and (7-c) has no force and the same is hereby repelled. - 26. It has also been argued on behalf of the respondents that quo warranto cannot be issued in this case as the disqualification has ceased to exist on the date of issuance of the writ ; alternate efficacious remedy as provided by section 29 of the Local Government Ordinance is available ; and lastly, the respondents at the time of filing of the writ petitions had not taken oath and the Local Councils concerned had not come into being.
' I am afraid, the aforesaid contentions have also no force. So far as the first point is concerned, it has been answered above while discussing the effect of M. L. R.
48. It has been held above that the disqualifications as provided by the Political Parties Act as well as the Houses of Parliament and Provincial Assemblies (Elections) Order being part of the permanent statutes cannot be hit by M. L. R. 48, dissolving the political parties. The same is temporary in nature. The second point with regard to the effect of section 29 of the Local Government Ordinance, 1979 has also no force. Section 29 of Punjab Local Government Ordinance in its amended form authorises an Officer or authority as may be appointed by the Government t remove a Chairman, a Vice-Chairman or a member of a Local Council from his office. The word "shall" has been used in subsection (1) of the section providing that the aforesaid office-bearers shall be removed if they incur an of the disqualifications enumerated in section 21 of the Ordinance.
In the present case, as discussed by my learned brother, Aftab Hussain, J. The Government is not interested in taking action against any of the respondents under the aforesaid provision of law It is also not denied that election petitions are otherwise not pending against the respondents before the respective Election Tribunal. Even otherwise, according to the relevant provision of law no election petition is competent in the present case. The ematter involves difficult questions of law and interpretation of severat provisions and as such section 29 would not furnish an adequate remedy. It is really strange that the Government has taken action against some o the elected persons under section 29 of the Ordinance, while no such action has been taken against many others in spite of the fact that they suffer from such disqualifications. As mentioned above, according to section 29, it is obligatory for the Government to remove such persons from their office, who suffer from such disqualifications as are enumerated in section 21 of the Ordinance.
That being the position in law and on facts, quo warranto is liable to be issued against the respondents, who have already taken oath and have started functioning as public officers. Even if they were not holding public offices at time of filing of the writ petitions, the fact remains that during the pendency of the petitions they took oath, elections to the reserved seats as well as to various offices were held and the Local Councils being complete in all respects started functioning as such.
27. By quo warranto, the Court is obliged to inquire into the legality of the claim of a party to hold a public office and if it is satisfied that such office cannot be held then the same will be ousted therefrom. In the present case, since the respondents are holding the public offices, therefore, they can be Galled upon to vacate the same being disqualified under the law to hold them.
28. As a consequence of the above discussion, Writ Petition No, 2449/80, in which the Commissioner empowered under section 29 of the Local Government Ordinance has already removed the petitioner from membership of Town Committee, Jampur, District Dera Ghazi Khan on the ground of his being disqualified to contest election to the National and Provincial Assembly under clauses (7 -a) and (7-c) is hereby dismissed. All other writ petitions are hereby accepted and it is declared that the elected persons in those petitions were not qualified to be elected as members of the respective Local Councils and consequently had no right to hold office of franchise. The parties are left to bear their own costs as intricate questions of law were involved in all the cases.