' SALEEM AKHTAR, J.-The petitioner and the respondent No. 1 contested Local Body Election for membership of the Town Committee, Khairpur Nathan Shah, District Dadu in which the respondent No. 1 was declared elected. The petitioner challenged the Election of the respondent No. 1 before the Provincial Election Authority, Sind, inter alia on the ground that the respondent No. 1 was disqualified under section 37(2) of the Sind Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) as he was a lessee of Town Committee, Khairpur Nathan Shah, for collection of Octroi Tax in respect whereof he was in arrears of Rs, 17,500 which he had failed to clear. The Tribunal upheld the contention of the petitioner and set aside the election of respondent No. 1. This was challenged by respondent No. 1 in Constitution Petition No, D-1222 of 1980, which was dismissed on 1st October, 1980. The seat therefore became vacant which was notified in Gazette dated 14-9-1980.
In the by-election the petitioner and the respondent No. 1 filed their nomination papers. The petitioner filed objections before the Returning Officer on the ground that the respondent No. 1 having been disqualified under section 37 subsection (2) of the Ordinance was not eligible to contest the Election for the residue term of the Council. The objection was rejected by respondent No, 2 on the ground that the respondent No, I had cleared all the dues of the Council before filing the nomination papers and had no pecuniary interest in its affairs. The petitioner filed an appeal before the Election Tribunal, Dadu, who dismissed the same as appeal did not lie against the order of acceptance of the Nomination Paper. The petitioner, therefore, challenged the order in this petition.
2. Mr. Gulab M. Rang, the learned counsel for the petitioner has contended that as the respondent No. 1 was disqualified under section 37 sub-clause 2(e) of the Ordinance, he was not eligible for Election to any Council during the unexpired period of the term of the Council. To substantiate his contention the learned counsel for the petitioner has referred to the Provisions of sections 21(2), 30 and 37(2) of the Ordinance. His contention is that the respondent No. 1 may have cleared all his dues and discharged all the liabilities to the Council, but since he has incurred the disqualification under section 37(2) (e) of the Ordinance earlier, he stands disqualified from contesting the Election.
3. In order to appreciate the correct legal position it would be necessary to examine the relevant provisions of law. The consequences of removal have been stated in section 30 of the Ordinance, which refers to removal under subsection (2) of section 21 of the Ordinance. To attract the bar provided under section 30 of the Ordinance there should be a removal by the Government from the membership under section 21 subsection (2) of the Ordinance. It provides that if a member has incurred any of the disqualifications mentioned in subsection (2) of section 37 or has acted or is acting in contravention of the provisions of the Ordinance, Rules or bye-laws, he may after an opportunity of being heard is given to him, be removed from the Membership. This subsection contemplates three situations, namely, that the person liable to be removed is a member i,e, he has been declared elected in the Election, secondly, he has incurred any of the disqualifications mentioned in section 37(2) of the Ordinance or has acted in contravention of the Ordinance, rules or bye-laws and thirdly, he can be removed by the Government after giving an opportunity of being heard. It has now to be examined whether respondent No. 1 was removed under section 21(2) of the Ordinance.
4. Mr. Gulab M. Rang, learned counsel for the petitioner has contended that the fact that respondent No. 1 had pecuniary interest and his Election was set aside by the Tribunal, would amount to removal.
5. On the other hand, Mr. S. Nasiruddin, learned counsel for the respondent No. 1 has contended that section 21 sub-clause (2) of the Ordinance refers to post Election disqualification and contraventions. In a nutshell, the disqualification mentioned in section 37(2) of the Ordinance which existed before the Election, will not in any manner effect the eligibility of a candidate nor can it be made a ground for removal unless the disqualification has been incurred after the Election. He has contended that the words "has incurred" refer to the disqualifications incurred after the Election. He has further submitted that the respondent No. 1, before filing the Nomination Papers, had cleared all the dues of the Council and had no pecuniary interest with the Council. To support his contention, Mr. S. Nasiruddin, learned counsel for the respondent No. 1 has relied upon PLD 1970 SC 98, PLD 1968 Lah. 705 and AIR 1929 Mad.
727. The case of Province of West Pakistan v. Lt. Col. Farzand All and others (1) is not of much assistance to the respondents as in that case the language of Article 104 Clause (2) of the Constitution of 1962 was under-consideration which was different from the language of section 21(2) of the Ordinance. Article 104 clearly referred to a case of a member becoming disqualified "after the election". In the case of Rahimud Din v. Bashir Ahmed and another (2), the provision of section 53 of Electoral College Act, 1964 was under-consideration which provided that "a person shall be disqualified from being a member or being elected as a member . . . ." if "he is for the time being disqualified from being a member". While interpreting this provision, it was held that it will be attracted if the disqualification exist at the time when action is being taken against the member. In another case of J. Selvarangaraju v. Doraiswamy Mudaliar (3) the Full Bench was considering the provision of section 51 of Madras District Municipalities Act of 1920 which reads as follows :- "Whenever it is alleged that any person who has been elected or appointed as a Councilor is disqualified under section 49 or section 50 and such person does not admit the allegations or whenever any Councillor is himself in doubt whether or not he has become disqualified for office etc. Etc."
' The Court observed that the expressions "is disqualified and" has become disqualified "occurring in the section seems to postulate a case where a person has validly become a Councillor, and the question is raised that {{FOOT NOTE}}
(1) PLD 1970 SC 98 (2) PLD 1968 Lah. 705
(3) AIR 1929 Mad. 727 {{FOOT NOTE}} ' owing to the present existence in him of particular disqualification, he should cease to be a Councilor.
The opening words of section 21(2) of the Ordinance viz. "if a member has incurred any of the disqualification" indicate that they relate to a person who has been elected as a member and thereafter has become liable or suffered any of the disqualifications mentioned in section 37(2) of the Ordinance or that there exists in him a particular disqualification which was in existence prior to election but continues even after the election. It does A not relate to pre-election disqualifications which have ceased to exist but refers to post-election disqualifications. It, however, does not mean that if any disqualification which was existing before the election, remained undetected and continues to exist after the election, then the provision of section 21(2) of the Ordinance will not apply. If the contention of the learned Advocate for the petitioner is accepted then it will lead to alarming results. It will mean that if in the past any person had any pecuniary interest with the Council which did not exist at the time of filing the nomination paper, then he would be liable to be removed. Such a construction cannot be accepted because in that event any person who in the past may have had any commercial dealing with the Council, shall in effect be permanently debarred from contesting the election for all time to come. In C. P. No, 1222/80 filed by respondent No. 1, challenging the order of Election Tribunal setting aside his election on the ground that he was at that time indebted to the Council, Naimuddin, J. While considering the provisions of section 37(2)
(e) of the Ordinance observed that "it was necessary for the petitioner to have cleared the debt before contesting the election". This follows that once a disability or disqualification has been removed before filing nomination paper it cannot be invoked for disqualifying a candidate or removal of a member. Any transaction past and closed having no traces of its existence can hardly be made a ground for removal. If such an embargo as suggested on behalf of the petitioner is placed then it is likely to hamper free working of the Council.
' In this case we are concerned with the disqualification mentioned in section 37(2) (e) of the Ordinance which leads as follows :- "(e) he is under contract for work to be done or goods to be supplied to the Council concerned or has otherwise any pecuniary interest in its affairs."
The words underlined* by us are significant and have to be kept in mind while interpreting section 37(2) (e). The disqualification mentioned here relates to the time when action is being taken against the member. It speaks of the present existence of a disqualification in a member and not to the past disqualifications which does not exist because in that event this clause would have been worded differently.
' The next question which arises is whether the respondent No. 1 was removed as contemplated by section 21(2) of the Ordinance. The learned counsel for the petitioner has relied upon the Notification issued by the Sind Government in a Gazette published on 9th September, 1980 declaring the Seat vacant. At Serial No, 6 the following entry has been made :- {{TABLE}} 1 2 3 1.
6. Dadu TO-56 Town Committee Due to decision of Election K. N. Shah. Tribunal pronounced by 1 2 3 B. J. Dadu on 11th August, 1980 set aside the election of Mr. Mehar Ali." {{TABLE}} ' The seat was declared vacant because the Tribunal had set aside the Election of respondent No. 1.
This according to the petitioner will amount to removal.
' Mr. S. Nasiruddin, learned counsel for the respondent No. 1 has contended that by virtue of the deciding of the Election Tribunal the respondent No. 1 ceased to be a Member of the Council. But if he was to be removed then the procedure under section 21(2) of the Ordinance should have been followed, which admittedly is not the case here. He has relied upon a case of Hidayatullah and others v. Emperor (1). While considering the words "removable from his office" as contained in section 197 of the Cr. P. C. It was held that "to relinquish an office is one thing and to be removed from it is another and quite different thing. In order that a person may be removed from his office there must be motion originating from "without". Mr. S. Nasiruddin, Advocate has further relied upon AIR 1955 Mys. 113 which has followed the above observations. In the Ordinance "Removal" has been assigned a definite meaning by providing preconditions for removal, prescribing a procedure and the authority which can pass such order. In the circumstances an order passed by the Election Tribunal setting aside the election will not amount to removal. As a consequence of such order of the Tribunal the member will cease to continue as such.
' Section 21(2) of the Ordinance contemplates penal action by the Government against such members who are covered by section 37(2) of the Ordinance thereby entailing penalty of being removed by the Government from the membership. The provision being penal has to be interpreted strictly. In the absence of clear words imposing penalty on a member for his pre- election disqualification which is not continuing, no order for removal can be passed strictly in accordance with the provisions of section 21(2) of the Ordinance. For removal under section 21(2) of the Ordinance a complete procedure has been prescribed which has to be followed before passing such order. It is a well-settled principle of interpretation of statute that where a specific procedure has been provided for exercising jurisdiction for imposing penalty under a statute then such provisions are considered mandatory and compliance with such provisions is essential to the validity of the order or the proceedings. It may be noticed here that at no stage any show-cause notice as provided by section 21(2) of the Ordinance was issued to the respondent No. 1. Nor in the present case, the Government has passed any order removing the respondent Nu. 1 from the membership.
' For the reasons discussed above, we are of the view that the petition has no merit and is dismissed with no order as to costs. {{FOOT NOTE}}
(1) AIR 1933 Sind 161 {{FOOT NOTE}}