RUSTAM S. S1DAWA, J.-This is a constitutional petition calling in question the right of Muhammad Afzal, respondent No. 1, to hold the seat of Union Council, Mangrotta, Tehsil Taunsa, as a peasant member and for his disqualification from holding that office.
2. The brief facts of the case are that on 12-12-1979 Muhammad Afzal, respondent No. 1, was elected as Member of the Union Council, Mangrotta, Tehsil Taunsa, District Dera Ghazi Khan, on the special interest seat as reserved for peasants. On 23-1-1980 Allah Bakhsh, father of Muhammad Afzal, respondent No. 1, died, leaving behind agricultural land some of which fell to the share of respondent No. 1. On 30-1-1980 Muhammad Afzal, respondent No. 1, submitted his declaration of assets and liabilities, as required by section 27-A of the Punjab Local Government Ordinance, 1979.
A copy of the said declaration of assets and liabilities is Annexure `A' to the petition. In the said declaration, Muhammad Afzal, respondent No. 1, inter alia showed seven items of agricultural land which he owned, the aggregate area of which was 150 kanals 10 marlas, and which he stated be had acquired through inheritance. Since the declaration of assets and liabilities showed that Muhammad Afzal, respondent No. 1, was the owner of more than 5 acres of agricultural land on 30- 1-1980, the date when the said declaration was filed, one Muhammad Masood, who had also contested the election to the same special interest seat against Muhammad Afzal, respondent No. 1, filed a writ petition (W. P. 6134/80) calling in question the right of respondent No. 1 to hold the special interest seat. Unfortunately, the said Muhammad Masood died and the said petition abated. Muhammad Saifullah Khan, the present petitioner, who was a member of the Union Council, Mangrotta, then filed the present petition on 24-9-1980, seeking the same relief, which is now before us for disposal.
3. Learned counsel for the petitioner contends that as respondent No. I is owning more than 5 acres of agricultural land, he has ceased to be a peasant as defined in section 3(l) (xxvii) of the Punjab Local Government Ordinance, 1979, and therefore, stands disqualified to continue as a member representing the interest of peasants in the Union Council, Mangrotta.
4. The learned counsel for respondent No. 1, who strongly opposes the petition, submits that since his client became entitled to certain agricultural lands after the death of his father, which occurred after his election, the lands received through devolution were involuntarily so received and he could not, therefore, be disqualified from continuing as a member. In this connection, learned counsel submits that inheritance in Muslim Law opens at the moment the propositus dies and the legal heirs immediately stand qualified to possess their legal shares and that if the respondent is going to be disqualified on .This score, the Punjab Local Government Ordinance, 1979, shall come into conflict with Muslim Law. The learned counsel submits that in the instant case "disqualification incurred" should be distinguished from "disqualification devolved", as the former presupposes a conscious acceptance, whereas the latter, an uninvited windfall. The learned counsel further submits that respondent No. 1 having possessed the proper qualification upto the time of his election, could not now be disqualified, as his case did not fall under section 24 or 29 of the Punjab Local Government Ordinance, 1979, which were the only two sections under which a member could be de-seated. Learned counsel further relies on the observations contained at page 105 in Maxwell on Interpretation of Statutes (12th Edition) to state the definition of the word "peasant" as given in the Ordinance is susceptible of more than one meaning and before adopting any construction of the same, the effects or consequences which would result from it should be considered. Learned counsel submits that the Legislature did not desire to de-seat members who lost their special interest qualifications and that, therefore, the meaning of the word "peasant", as given in the Ordinance, should be construed in that. Light.
5. We have given our anxious consideration to this case. In the first instance, we must state that respondent No. 1 has not cared to file his written-statement to the petition. At the very outset, we enquired from the learned counsel for respondent No. 1 whether his client was filing his written- statement or he was going to submit his arguments without filing such a statement. The learned counsel categorically submitted that he was going to argue the case without filing -his client's written-statement. 1n these circumstances, for the .Purposes of this petition, we would hold that the allegations made by the petitioner in para. 3 of his petition that respondent No. 1 on 30-1-1980, when he submitted his declaration of assets and liabilities, was the owner of 150 kanals 10 marlas of agricultural land, is correct.
6. We now turn to the contentions of the counsel. In general parlance, the word "peasant" means an occupant or tiller of a small land holding or a petty worker on land, but the definition of the word "peasant" in the Ordinance, seems to . Cover peasant proprietors, i.e. Small farmers both owning and tilling the land. The word "peasant", as defined in section 3(1) (xxvii) of the Punjab Local Government Ordinance, 1979, means- "a person who is owner of not more than five acres of agricultural land and engages himself personally in the cultivation of land."
The very definition shows that a' person who is to represent the special interest seat reserved for peasants must be a small land owner i.e. One not owning more than five acre' of land, that the land must be agricultural and that he must personally be engaged in the cultivation of land. It excludes persons who are not agriculturists own urban land, landlords who own agricultural land over five acres arid absentee land owners who are not personally cultivating any agricultural lands themselves. It is, there--fore, clear that as from 30-1-1980, respondent No. I lost his qualification and thus his legal character as a "peasant member" and is continuing in office to represent this special interest without possession of the legal character which would enable him to do so.
7. Under .Chapter III of the Punjab Local Government Ordinance, 1979, the composition of Local Councils is made up of such number of Muslim members as are determined by section 9, such number of non-Muslim members as are determined by section 10 and such number of members representing special interests, such as peasants, workers and women, as are determined by section 11. The qualifications required by a person who offers himself as a candidate for membership or one who, having been elected, desires to retain his membership, are provided in sections 20 and 21 of the Punjab Local Government Ordinance, 1979. Section 20, by positive language, provides the qualifications and section 21, by negative language does so. In addition, sections 8 to 11 [read with clause (xxvil) and (iix) of subsection (1) of section 3] impliedly provide the special qualifica--tions required for the three categories of seats for which a person may offer himself as a candidate or, once being elected as a member, may continue to hold the same. For a Muslim seat, the candidate or member must profess or follow the Muslim religion and fulfil the requirements of Article 1-A of the Provisional Constitution Order, C. M. L. A. 1 of 1981; for a non-Muslim seat, he must not be a Muslim, but professor follow any religion other than Islam; and for a special , interest seat, he must either possess the qualification of a peasant or worker, as defined in the Ordi--nance, relevant to the particular interest desired to be represented, or be a female, to represent the women---s seat. These special qualifications are inherent to the three types of membership, which is also apparent from the sections constituting Chapter 111. Examining the whole scheme of the Ordinance and more particularly Chapters III and IV, it is apparent that the special qualifications required of these three categories of members must not only be possessed by such members on the dates of their nomination and election, but also thereafter for the full tenure of their term, for otherwise the infrastructure of and the fine balance to be maintained in the composition of Local Councils would be disturbed by members representing the majority and the minority communities and the special interests not being present in the required proportion to preserve, protect and enforce their respective interests. If this be the scheme of the Ordinance, as we so find, the question of section 3(1) (xxvii) of the Punjab Local Government Ordinance, 1979, being susceptible to two different interpretations, or the view as stated in Maxwell on Interpretation of Statutes, as urged by the learned counsel for respondent No. 1 being applicable, does not arise.
Irrespective of the fact, therefore, whether sections 24 and 29 of the Punjab Local Government Ordinance, 1979, assist the petitioner or not, the present writ petition, which is in the nature of a writ of quo warranto, would enable the petitioner to call upon respondent No. 1 to disclose the legal character which he still possesses to represent his particular special interest. The position is the instant case is no different from that of a director who, required by statute or the Articles of his Company, to maintain qualification shares; sells out all his holding or such number of shares as disturbs his qualification. In either case, he loses his legal character as director and cannot act further, as such, irrespective of the fact whether there is any provision in the statute or the Articles, providing for the cessation of his authority or for his removal or disqualification on that account.
Similarly, if person holds a public office to represent a particular interest and loses his legal character, which enables him to represent that interest, an implied cessation of his power and authority takes effect. As informa--tion in the nature of quo warranto could have been maintained in such a case; the High Court can grant an injunction restraining such a person from acting and can declare the office vacant. In Lt.-Col. Farzand Ali's case (1), the removal of a member for a continuing pre-election disquali--fication through a writ of quo warranto was accepted as a permissible remedy for a person who was not entitled to challenge the election of the respondent because he was not an opposing candidate. Lord Halsbury in his Laws of England (Hailsham's Edition), Vol. 9, Second Edition, in paragraph 1377, recognises that though an election petition may be the proper remedy when an election is objected to, on the ground that a person whose election is questioned was disqualified at the time of the election, yet the remedy by quo warranto is available where a person becomes disqualified after the election, or where there is a continuing disqualification in other words, where the objection is a continuous holding of the office by the person disqualified. Respondent No. 1, as already held by us, has ceased to be a peasant from 30- 1-1980 and has lost his legal character, as peasant member, to represent the peasant interest in his Council. He is, therefore, disentitled from holding the said office from the said date.
8. This matter may also be viewed in a different light. Clause (f) of section 21 of the Punjab Local Government Ordinance, 1979, provides for the disqualification inter alia of 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. Under paragraph (aa) of clause (2) of section 10 of the Houses of Parliament and Provincial Assemblies (Elections) Post-Proclamation Order, 5 of 1977, a person stands disqualified from being elected or chosen as, and from being, a member of Parliament, if he propagates any opinion, or acts in any manner, prejudicial to the Idealogy of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the integrity or independence of the judiciary of Pakistan, or defence or brings into ridicule the judiciary or the Armed Forces of Pakistan. It would, therefore, appear that a person would be disqualified from being elected or chosen as, and from being, a member of any Local Council, if he was acting in any manner prejudicial to morality. The word "morality", therefore, is not used in any narrow sense, but in a general sense, such as the law of consistence; the aggregate of those rules and principles of ethics which relate to upright behaviour and right conduct of elected representatives and prescribed the standards to which their actions-and in particular those who are o Muslims, who are guided by the Holy Qur'an and Sunnah should conform, in their dealings with each other or with institutions or the State. It should not be forgotten that this word is to be interpreted in respect of legisla--tion dealing with elected representatives of the people and, therefore, its broad and general meaning has to be applied, as stated above. In Sweet v. Young (2), conduct unworthy of the character of a minister of religion was held to be immoral conduct, though no act of indecency was proved. In the same manner, the retention by ' a Councillor of a special interest seat, where he does not possess or has lost the qualification to represent the same and his legal character as such representationist has ceased, is immoral conduct and it cannot be said that he is not acting in a manner prejudicial to morality. In our view, the ease is covered by section 21(f) of the Punjab Local Government Ordinance, 1979, and the petitioner is, therefore, disqualified from continuing as a member on this ground also.
(1) PLD 1970 SC 98(2) 1902 Probate 37
9. The contentions of the learned counsel that "disqualification incurred" must be treated on a .
Different footing from "disqualification devolved" and that any 'interpretation rotation of section 3(1)
(xxvif) or 21 of the Ordinance that creates a cleavage with Muslim Law, should be avoided, .Have now no basis. The said two sections do not prevent the peasant member of a Local Council from inheriting any property or stand in the way of his good luck, if his holding is augmented, but if he should receive such an uninvited windfall as places his agricultural holding over five acres, he is pushed into the status 'of a real landlord and ceases to be a peasant proprietor and if be has to vacate his office, as a price .For this good fortune, he should not complain, but if he is so minded or his sense of honour compels him to represent the interest of the poor peasant proprietors, whose cause be does not wish to give up, he can always renounce his inheritance, which would no longer remain a heavy burden on his shoulders. Muslim Law grants certain heirs the right to. Receive particular shares out of the estate of the propositus but does not compel them to receive the same, if they or any of them do not so desire. An heir who does not desire to receive his - or her share, can always renounce his or her interest therein. The fact that respondent No, 1 did not renounce his interest in his father's inheritance by deed, before filing the declaration of assets and liabilities, but, on the contrary, received his inheritance and filed the declaration showing the accretion, clearly shows that respondent No. I bad no sympathy for the cause of the peasant proprietors and by his conduct waived his right to represent them.
10. The only question that arises is whether the writ of quo warranto should be accepted. The remedy under section 24 of the Ordinance was not available to the petitioner as he was not a contesting candidate for the peasant seat. As already held by this Court in Ghulam Abbas v.
Muhammad Mumtaz Khan PLD 1980 Lah. 718 section 29 of the Punjab Local Government Ordinance, 1979, basically imposes an obligation upon the Government to take action against a person about whom an information is received by it, whether by application by an interested person or otherwise.
By virtue of Notification No. SOL-2-4/79 dated 16-1-1980 issued by the Punjab Local Government,.
Social Welfare and Rehabilitation Department, the Deputy Commissioner of a District is the competent authority to receive the declarations of assets and liabilities from Councillors within his district. In the instant case, the Deputy Commissioner, Dera Ghazi Khan, who received the declaration of assets and liabilities from respondent No. 1, was duty bound to have reported the matter to the Government. He did not do- so. Section 29 does not, therefore, provide an adequate remedy. Even other--wise, now having dealt with the matter ourselves and having come to the finding that respondent No. 1 is not entitled to continue to hold his office as peasant member, we cannot refuse the remedy, as otherwise it would be permitting him to perpetuate an illegality. We, therefore, hold that the petitioner is entitled to the present constitutional remedy.
11. For the foregoing reasons, we accept this petition and declare that respondent No. 1 has ceased to hold the legal qualification required for the peasant's seat and is, therefor;, disqualified from holding the said office and we grant an injunction restraining him from acting as such and declare the said peasant's seat vacant. There will be no order as to costs.