' Jam Abdul Hamid, respondent No, 1 was elected as a member of Union Council Neelgarh, Tehsil khanpur Muhammad Afzal petitioner, was voter, has challenged the membership of the respondent on the ground that he is a depot-holder.
2. It is true that a depot-holder is disqualified to be a member of a local council under the provisions of section 21 (f) of the Punjab Local Government Ordinance, read with Article 10 (2) (b)
(8) of the President's (Post-Proclamation) Order 5 of 1977, and it has been so held in a large number of cases including Riaz Hussain v. Fazal Mahmood. However, in proceedings under Article 199 (1) (b) (ii) of the Constitution, no action is possible unless the disqualifications alleged against a member are existing ones. A reference in this behalf may be made to Lt.-Col. Farzand Ali v. Province of West Pakistan wherein it is observed that relief by way of quo warranto is available where the disqualification is a continuing one which debars a person not only from being elected to an office, but also from holding that office. In this view of the matter the question which is relevant for a decision of this Writ Petition is whether the respondent continued to be a depot-holder on the date of filing this Writ Petition.
3. The petitioner has placed on record a certificate (Annex. C) from the Assistant Food Controller, Khanpur dated 14-2-1980 to the effect that the respondent is a depot-holder. He also produced during arguments a copy of an order of District Food Controller, Rahimyar Khan dated 17-2-1980, accepting the resignation of the respondent as a depot-holder. The copy is placed on the file. The respondent was A therefote ho longer a depot-holder after 17-2-1980. The Writ Petition was filed on 13-3-1980, which the respondent was no longer suffering from the alleged disqualification. There is, therefore, no merit in this Writ Petition.1 2
4. The contention that at the time of the election the respondent was suffering from a disqualification is of no avail to the petitioner, because it is not the respondent's election that he is challenging. In any case the petitioner could not challenge the election of the respondent by B filing a writ petition, because section 24 of the Punjab Local Government Ordinance makes an election challengeable only by filing an Election Petition and only at the instance of the opposing candidate. A reference may be made in this behalf to Hamida Begum and others v. Provincial Election Authority and others.
5. There is no merit in this Writ Petition and it is, therefore, dismissed. There shall, however, be no order as to costs. 1980 CLC 839 PLD 1970 SC 98 PLD 1966 Lab. 560