RUSTAM S. SIDHWA, J. This is a constitutional petition by Noor Ahmad, petitioner, praying that the order passed by the Election Tribunal, Sahiwal, on 5-10-1980 be declared to have been passed without lawful authority and of no legal effect.
2. The brief facts of the case are that Noor Ahmad, petitioner, contested the election of Ward No. 12, Town Committee, Renala Khurd, which was held on 25-9-1979 against respondents Nos. 2, 3 and 7, who were also contesting candidates. The petitioner was declared a successful candidate for the said election. Later, Cb. Waheed-ud-Din, respondent No. 2, filed a petition under section 24 of the Punjab Local Government Ordinance, 1979, for deseating the petitioner on the ground that he was engaged in work to be done for the local council concerned. The Election Tribunal, Sahiwal, respondent No. 1, by his order dated 5-10-1980, held that the petitioner had taken a lease for the disposal of sullage water from the Town Committee, Renala Khurd, from 1-7-1979 to 30-6-1980, that he was, therefore, under contract to the said Town Committee for work to be done on its behalf at the time of filing of the nomination papers, at the time of election and even after the unofficial declaration of his result as a successful member and that, therefore, the petitioner was hit by the provisions of clause (h) of section 21 of Ordinance VI of 1979, and the election was, therefore, void.
The Election Tribunal directed the Election Authority to fix a date for the re-election of Ward No. 12, Town Committee, Renala Khurd. Notification was thereafter issued for the re-election, where--in the petitioner and some of the remaining respondents filed their no--mination papers. The fresh election, however, could not be held, as in the meantime, Noor Ahmad, petitioner, had filed the present writ petition and on 6-4-1981 obtained stay order suspending the holding of the fresh elections. The writ petition filed by Noor Ahmad, petitioner, is now before us for disposal.
3. Learned counsel for the petitioner has made two submissions on behalf of his client. First, that though the petitioner had entered into a contract with the Town Committee, Renala Khurd, for the disposal of sullage water, yet the said contract was not for work to be done for the Town Committee, Renala Khurd, but was for the purchase of goods and, as such, was not hit by the disqualification contained in section 21(h) of the Punjab Local Government Ordinance, VI of 1979.
Second, the learned counsel submitted that on 26-9-1979 the petitioner had applied to the Town Committee for the cancellation of the said agreement, which was allowed by the 'Town Committee on 27-9-1979, and since at the time the petitioner took oath as Councillor he had shed his disqualification, he was entitled to the grant of the relief, as prayed in the petition. In this connection, learned counsel relied upon Kamal Hussain's case PLD 1969SC42
4. The learned counsel for the respondents strongly controverted the submissions made by the learned counsel for the petitioner. The learned counsel submitted that the contract for the. Disposal of sullage water entered into by the petitioner with the Town Committee, Renala Khurd, was not for goods supplied but related to work to be done for the Town Committee concerned and as such was covered by the disqualification contained in section 21(h) of the Punjab Local Government Ordinance, VI of 1979. As regards the second submission made on behalf of the petitioner, the learned counsel submitted that as the disqualification existed not only at the time the nomination paper was filed, but also at the time of election and even after the unofficial declaration of the result, the petitioner stood disqualified to be a candidate and a member of the local council, which justified his removal by the Election Tribunal. With regard to Kamal Hussain's case, the learned counsel submitted that the same was no'. Applicable, as :he present writ petition was not in the nature of quo warranto and the principle contained in the said case could only be applied to writs in the nature of quo warranto.
5. We have given our anxious consideration to this case. With regard to the first contention raised on behalf of the petitioner, an inspection of the document Annexure "RE" filed by respondent No. 2 with his reply and which happens to be the terms and conditions on which the contract for disposal of the sullage water was granted by the Town Committee, Renala Khurd, inter alga show that the period of the contract was Ist July, 1979 to 30th June, 1980, that the contractor had to bid for the full one year term of the contract, that the contractor had to take the sullage water from the Municipal channels to his own fields, that if the contractor was unable to take the said sullage water to his fields or the flow of sullage in the channels got blocked, resulting in any health hazard, the contractor was responsible, that if any of the buildings, machinery, sewerage or channels of the Municipal Works were effected, the contractor was responsible and liable in damages, that the contractor had no right to remove earth around the pacca channels, that the contractor had no right to compel the Disposal Works to stop or begin the engines and that the contractor had no authority to obstruct any overflow in the sullage channels. The first question that arises in whether sullage water can be treated as "goods" within the meaning of subsection (7) of section 2 of the Sale of Goods Act, III of 1930. In Morga v. Russel & Sons (1909) 1 K B 357the sale of cinders and puddle slag or iron slag on certain lands to be taken by the buyers, was held not to be a contract for the sale of goods. The County Court Judge had held that the cinders were not separate things, but had become part of the soil itself and that the contract was for the sale of land and not for the sale of goods. Whilst affirming this decision, the Court of Appeal held that the contract did not appear to be one to sell any dispute quantity of mineral or a heap of earth which could be said to be a separate thing, but was analagous to one which gave a man a right to enter upon land with liberty to dig from the earth so much gravel or brick earth or coal, on payment of a price per ton.
Sullage water, however, is accumulation of waste movable liquid and so long as it retains its character, as such, it does not become part of the soil itself and can be treated as goods. In Ferens v. Q'Brien (1883) 11 Q B D 21water was treated as a chattel, to be the subject-matte of larceny.
Sullage waster can, therefore, be treated as "goods" for the A purposes of the Sale of Goods Act, I_.11 of 1930. We now turn to the terms and conditions of the contract. Reading these terms and conditions carefully, we find that the contract is not for the sale of sullage water simpliciter, as.
Urged by the petitioner. The contract is not with the object of transferring the property in and the delivery of possession of the sullage water, as sullage water, to the petitioners, but of keeping the Town Committee' sewerage and sullage channels freely running, so that they do not damage the buildings, machinery, sewerage and sullage channels of the Town Committee's Sewerage Works or create a health hazard by overflowing its banks and for the ultimate disposal of the said sullage.
The fact that the contractor pays both a price and renders services and is prepared to pay damages for any loss that may be caused by his negligent services, for the sullage he receives, only shows that the sullage is so valuable that it compensates the services rendered, the price paid and the element of any unforseeable damages that may have to be paid, but it does not render the contract one of sale or purchase of goods within the meaning of the Sale of Goods Act. Had the contract only specified the lifting of sullage water at a particular point or points, for payment of a price, without the conditions specified in para. 5 of the contract, perhap3 the matter may have taken a different turn, but this is not the case. In these circumstances, it is apparent that the contract basically was for service to be performed for the Town Committee, Renala Khurd, and it cannot be said that the contract was one for the purchase of sullage water simplicitor. The first contention of the learned counsel for the petitioner is, therefore, rejected.
6. As regards the second submission made on behalf of the petitioner, it cannot be denied that on the date of the filing of the nomination, on the date of the actual election and on the date when the unofficial result was announced, the petitioner's contract with the Town Committee, Renala Khurd, for the disposal of its sullage water was in operation. It was not until 27-9-1979 that the petitioner severed his connection with the said contract. In these circumstances, the Election Tribunal was correct in holding that the petitioner suffered from the disqualification as contained in section 21(h) of the Punjab Local Government Ordinance, VI of 1979, and that, therefore, the election was void.
Learned counsel for the petitioner has relied upon Kamal Hussain's case in support of the proposition that since before the date of the filing and disposal of the election petition and before the present writ petition was filed, the petitioner had shed his disqualification, the present petition should be allowed. The principle contained in Kamal Hussain's case is only applicable in writs of quo warranto. The present writ petition is not of the said nature. Learned counsel for the petitioner has not been ably to place any case before us where in a writ for quashment, the principle as contained in Kamal Hussain's case, has been applied. In these circumstances, the fact that the petitioner shed his disqualification on 27-9-1979, is of no avail. The order C of the Election Tribunal is correct both in law and on facts. No interference is, therefore, called for in the constitutional jurisdiction.
7. For the foregoing reasons, there being no merit in this petition, the same is dismissed. However, there shall be no order as to costs.