ASLAM RIAZ HUSSAIN, J.-This appeal is directed against the judgment of a Division Bench of the Lahore High Court, dated 6-7-198fl, dismissing the appellant's I. C. A. (No. 337/b0) relating to elections of the District Councils held on 25-9-1979, under the Punjab Local Government Ordinance VI of 1979. Leave was granted in this and other number of cases purely on a question of law namely the interpretation of section 21 (f) of the staid Ordinance and the effect of an amendment thereof by Punjab Ordinance of 1981.
2. For the purpose of this appeal the only facts that require to be mentioned here are that the appellant contested the election to a seat of the Local Council from a multi-member Electoral Unit known as Hamza House, Union Council Buttar; District Sialkot on 29-9-1979 and got elected, Nazir Ahmad respondent No. 2 also got elected from the same Unit. Both of them offered their candidature for the office of the Chairman of the said Union Council. The appellant secured the highest number of votes and was thus elected as Chairman defeating Nazir Ahmad respondent.
Feeling aggrieved Nazir Ahmad filed a constitutional petition seeking writ in the nature of quo warranto on the ground that the appellant was disqualified from being a member of the Local Council on the ground that he was a depot-holder. Relying on the Full Bench judgment of the Lahore High Court reported as Sardar Muhammad Jaffar Khan Leghari v. Election Commission of Pakistan (PLD 1978 Lab76), the learned Judge in Chamber accepted the writ petition on 19-5-1-- 80, and declared the appellant to be disqualified to be member of the Union Council. The appellant filed an I. C. A. Which was also dismissed by a Division Bench of the High Court, following the afore- mentioned judgment, on 8-7-1980.
3. Feeling aggrieved Muhammad Shafi appellant filed a petition for Leave to Appeal and Leave was granted to him on 6-12-1980 on a question of law, but after the amendment of the relevant law by Presidential Order No. 5 of 1981 the question which shall now fall for determination in this case is as to what is the true interpretation and the cumulative effect of the said amendment in section 21 of the Punjab Local Government Ordinance, 1979. In order to understand and appreciate the legal question and the contentions of the counsel for the parties thereon, it would be appropriate to reproduce in extenso, the provisions of section 21 of the said Ordinance, as it stood before the amendment, which lays down the disqualifications of candidates and members :- "Section 21. Disqualifications of candidates and members.-A person shall be disqualified to be a candidate or a member of a local council - (a)if he has ceased to be citizen of Pakistan; (b)if he is an undischargedinsolvent; (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; (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; (g)if has been dismissed from Government service or the service of a local (h)council on charges of corruption and a period of three years has not elapsed from the date of such dismissal; and
(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."
It would be noticed that clause (f) of section 21 has, by reference, made the disqualifications for membership of the Parliament, or the National Assemblies "under any law for the time being in force", applicable to the members of the Local Councils. The law, for the time being in force, which specifies the disqualifications applicable to the membership of the Parliament or the National Assemblies, is the Presidential Post-Proclamation Order 5 of 1977, known as House of Parliament and Provincial Assemblies (Elections) Order, 1977, Article 10(2) (b) of this statute enumerates the disqualifications for membership of the Parliament. Clause (8) of sub--section (2) (b) which is disqualification relevant for the purpose of this case reads as follows :- "Article 10 (l) (b) (8).--A person shall be disqualified from being elected or chosen as and from being a member of Parliament; if he, whether by himself or by any person or body of persons in trust for him or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services under--taken by Government: (Provided that (-------not relevant)
4. The contention raised by the respondent in his writ petition before the High Court inter alia was that a depot-holder came within the mischief of this provision because he has an interest in a contract for the supply of goods to the Government. Some other arguments were also raised before the High Court but the afore-mentioned contention found favour with the High Court, which, following the finding given by the Full Bench in the case of Muhammad Jaffar Khan Leghariheld, on 6-7-1980, that a depot holder was a contractor who had an interest of the nature described in Article 10;2) (b) (8). The relevant portion of the judgment may be reproduced here for facility of reference: "Now, the relevant provisions of sub-article (2) of Article 10 of the President's Order No. 5 of 1977, can be read for the purpose of this case as follows A person shall be disqualified from being elected or chosen, as and from being a member of Parliament, if he has any share or interest in a contract for the, performance of any services undertaken by the Government.
Independently of what Indian Courts have held in this behalf, we are of the opinion that the distribution of food grains is a service under taken by the Government. And in view of the fact that a depot-- holder has no choice either in the matter of fixing the price or choosing the customers or prescribing limit for the quantity to be sold to any particular consumer, he cannot be said to be a mere licensee in the general sense of the word. He has to carry out the distribution exactly in accordance with the terms laid down by the Government and the consideration that he receives for this service is the difference of pur--chase and sale price both of which are predetermined by the Govern--ment. We, therefore, hold that a depot-holder "has a share and interest in a contract for the performance of a service undertaken by the Government. The petitioner is, therefore, squarely hit by the Article 10(2)(b)(8) of the P. O. No. 5 of 1977 and the learned Member of the Commission, who heated the appeals, rightly disqualified him."
5.Subsequently on 29-3-1981, section 21. Was amended by Ordinance IV of 1981. A proviso was added to clause (f) the earlier section 21 was renumbered as subsection (1) and a new subsection
(2) was also added to the said section and Ordinance No. IV of 1981,. Was brought into force "with immediate effect". The relevant portion of the newly, added Proviso to clause (f) and the newly added subsection (2) read as follows :- "Provided that this disqualification shall not be applicable to- (1)a person who has, whether by himself or by any person in trust for him or for his benefit or on his account, any share or interest in -
(a) a contract for the supply of goods to, or the execution of any work of, the Federal Government or a- Provincial Government has a controlling share or interest or a local authority other than the one in which that person is a candidate for election;
(b) the performance of any service undertaken . By any such Government, autonomous body or local authority;
(c) a person who has resigned or has been retired or removed otherwise than by way of punishment, from service of the Federal Government or a Provincial Government or a local authority or an autonomous body."
"(2) Any person who immediately before the commencement of the Punjab Local Government (Amendment) Ordinance, 1981, was suffering from a disqualification which has been. Removed by virtue of the proviso to clause (f) of subsection (1), or who has been removed from such membership by any authority or tribunal constituted under any provi--sion of the Ordinance or by any decree, judgment or order of any Court on the grounds of the said disqualification shall, notwithstanding any other provision to the contrary in this Ordinance, be eligible to be a candidate or a member of a local council."
A reading of the aforementioned amendment would show that the Proviso has removed the disqualifications incurred by a candidate or a member under clause (f ) of section 21 read with Article 10 (2) (b) (8), while sub-section (2) provides that any one who had already incurred this disqualification would be eligible to be a candidate or a member of a Local Council.
The real question that falls for determination in this case is as to whether or not provisions of subsection (2) of section 21 reproduced above, have the effect of making the removal of disqualifications (by the Proviso), applicable retrospectively.
The learned counsel for the appellant, however, started with the con--tention that the view taken by the Full Bench of the High Court in the case of Muhammad Jaffar Khan Leghari is not based on correct interpreta--petition of clause 8 of Article 10 (2) (b) of P. O. No. 5 of 1977, i.e. Houses of Parliament and Provincial Assemblies (Elections) Order, 1977. As already mentioned this provision lays down - one of the disqualifications for the election to the Parliament (which have also been made applicable to membership of Provincial Assemblies by section 11 (2) of the same Statute and provides that a person who, directly or indirectly, has a share or interest in a contract for the supply of goods to or in the execution of a contract by or in the performance of a service undertaken by the Government shall be disqualified from being elected or chosen as, and from being a member of the Parliament. The learned counsel for the appellant submitted that a depot-holder is, in fact, rot at all a contractor within the meaning of the word as used or understood in the Contract Act because he has not entered into any contract with the Government and was merely an agent or licensee, who obtains a certain commission or is allowed to retain certain percentage of the sale- proceeds and as his profit for distributing foodstuff to the ration-card-holders. For this contention he relied on the provisions of the laws relating to the control of foodstuff including the West Pakistan Wheat, Wheat-Atta, Maize, Rice and Sugar Distribution Order, 1977, which provided, inter alia, for the authorisation of certain persons to distribute the afore-mentioned foodstuff. The authorization of licence is issued in the Form prescribed in Annexure `B' appended to the said Order.
By referring to the language of that Form, the counsel attempted to show that a person who applied for and obtained such a licence was merely authorised to 'act as a `retail distributor' of the afore-mentioned foodstuffs and, as such, he could not be said to have a contract with, or even an interest in a contract for supply of goods to the Government. He resorted to this con--tention because in the afore-mentioned Full Bench judgment the High Court had held that a depot-holder had a share and interest in a contract for the performance of his service undertaken by the Government." The view was based by the learned Full Bench mainly on the paraphrasing of clause
(8) of Article 10 (2) (b), made by it in the portion of the judgment produced in paragraph No. 3, above.
6. With utmost respect to the learned Judges of the High Court, we notice, on a careful reading of clause (8), that they had not correctly inter--preted the provisions of the said clause, which is apparent from the para--phrasing of the said section by the learned Judges in their judgment in the case of Muhammad Jaffar Khan Leghari, reproduced in paragraph No. 4 of this judgment. With due deference, to the learned Judges, it appears they omitted to consider the significance of certain words occurring in the said provision. A. Study of clause (8).Of the provision would show that it means to disqualify a person :- "If he (whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family), has any share or interest in a contract (not being a contract between a co-operative society and Government), for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government."
To give appropriate meaning to the provisions of clause (8) due significance has to attach to the two words underlined by us namely `to' and `by'. If properly para-phrased, it would be evident that what this clause intends to provide is that a person would be disqualified "if he has a share and interest-
(i) in a contract for the supply of goods to the Government; or
(ii) in the execution of a contract by the Government; or
(iii) in the performance of any service undertaken by the Government.
This view is strengthened by the language used in para. I (b) of the Proviso added to clause (f) of section 21 (1) of whereby the disqualifications in question have been removed. It clearly shows that besides interest in con--tracts with the Government, interest in the, performance of any service undertaken by the Government was also intended by the Legislature to be a disqualification; which has been removed by it. As is clear from a reading of the West Pakistan Wheat, Wheat-Atta, Maize, Rice and Sugar Distribu--petition Order, 1967; the Government has taken upon itself to perform the service of supplying the afore-mentioned foodstuffs to the public or the ration-card-holders and a person who is authorised to distribute any of the foodstuffs in question under section 4 of the said Order and gets paid for it certainly has an interest in the performance of this duty by the Govern-- ment. Consequently, though not strictly speaking a contractor, a depot --holder, who is in fact a person authorised under the afore-mentioned Order to distribute the foodstuffs in question and is allowed certain percentage from the proceeds of the sale as his profit, or commission, would come within the mischief of the provisions of clause (8) of Article 10 (2) (6) of President's Order No. 5 of 1977 and stood disqualified, till the disqualification and removed by Proviso to section 21(f)
7. But as already observed above, the real question before us at present is the effect of the amendment made in section 21 of the Punjab Local Government Ordinance, by Proviso and subsection thereto. It is admitted by the learned counsel for the appellant as well as for the respon--dents that disqualifications mentioned in clause (8) of Article 10(2)(6) of the Presidential Post-Proclamation Order 5 of 1977, would no longer be attached either to persons having a share or interest in contract to supply goods to the Government or in the performance of any service undertaken by the Government etc. But, what is disputed by the learned counsel for the parties is as to whether or not the amendment has retrospective effect. According to the learned counsel for respondents, it is applicable only prospectively and would take effect from 29th March, 1979, onward i.e. From the date on which Presidential Order No. 6 of 1981, was enforced and, as such, would not in any way affect the disqualifications or liabilities already incurred by the appellants. For this contention the respondents counsel relied on section 1(3) of P. O. No. 5 of 1981, which prescribes the date of enforcement of the law and says that: "It shall come into force at once"
8. The learned counsel for the appellant, however, adverted our attention to the newly added subsection (2) to section 21 and argued that it is by virtue of that provision that the removal of disqualification by the Proviso shall have retrospective effect and entitle those members who have been defeated- to be restored thereto.
9. On the other hand the counsel for the respondent submitted that this provision merely provides that a person who suffered from this disquali--fication or who has been removed from membership by any Authority or Tribunal etc. Or by any decree or judgment of a Court or Order of Authority, for such a disqualification shall be eligible to be a candidate or member of a local council. From the word `eligible' he wanted us to conclude that the amendment in question merely makes it permissible for such persons to contest an election or become a member, in any future election or by-election, and does not have the effect of restoring his membership because if that was. The intention of the Legislature it would have been so mentioned specifically in subsection (2).
10. As against this, the counsel for the appellant submitted that in the context of the provision under consideration the word 'eligible' has a much wider meaning and specially used with reference to a 'member' `it can only mean that notwithstanding his removal by the decree or judgment of a Court, order of an Authority on the basis of such a disqualification, he would still be entitled to remain a member.
11. We have carefully considered and have given our anxious thought to these contentions. A perusal of subsection (2) of section 21 shows that it has been made applicable to two different categories of persons and, confers eligibility to be a candidate as well as a member of a local council: (i) on persons who were suffering on the relaxant date (i,e. The date ors which the amendment was made) from disqualifications which have been removed by the Proviso to clause
(f) of section 21(1); and (ii) on personswho had been elected as members of a Local Council but had been removed from membership because of the said disqualifications at the time when the amendment was made. In other words subsection (2); envisages anti provides for two distinct situations, namely
(a) where a person suffering from a disqualification under section 21(t) (f) has not yet been elected but is only a candidate who is barred from contesting the election, or, having been elected, he is still a member of the local council ; and
(b) where a person who was duly elected as a member of the local council had already been removed from the membership by any order or judgment.
12. No doubt the learned counsel for the respondents laid much stress on the word 'eligible' to argue that subsection (2) had only made persons mentioned in above noted two categories, 'eligible' to be candidates or members. According to him this merely amounts to entitling them to contest any future election or bye-election or to retain their membership if they got elected and the amendment must therefore be construed as having effect prospectively. We are, however, not persuaded to agree with this submission. The word 'eligible' has to be read and understood in the context in which it is used. It has been defined in Corpus Juris Secundum, Vol. 29, at page 663. It has been stated therein under the heading 'eligibility' "that the word may refer either to the election to office or to the induction into office and where used with no explanatory words indicating connections with time of election, it refers to the qualification to hold the office rather than the qualification to be elected to the office". Refer Bradfield v. Avery ((102 P. 689) 19 IDAHO 769). The same view has been reiterated therein, under the heading 'eligible'.
13. We are also not inclined to agree with the view the provision in question was intended only to have prospective effect and merely enables or entitles persons suffering from a disqualification mentioned in the Proviso to contest a future election. In the first place if the intention had been only to remove the disqualification prospectively or for the future, the purpose could have been fully achieved by only adding the Proviso to clause (f) of section 21. And there was no need, whatsoever, of adding subsection (2) to the said section.
Secondly, it would be noticed that while the .Earlier part of subsec--petition (2) confers eligibility on a 'candidate' as well as a 'member' the latter portion of the said subsection confers eligibility only a 'member' who has already been removed by the Order of any Authority or the judgment of any Court. While conferment of 'eligibility' on a member who has not yet been deseated can be understood, for it would entitle such a person to continue as a member, but in the case of a person in the second category, I.e. a person who has already been removed from his seat, it cannot be said that it shall operate only prospectively, because to hold so would result in rendering the provision useless, as it would be meaningless to confer the `eligibility' on a member, who has already been removed, unless some effect is also given to the conferment of such eligibility. As already observed it cannot be argued that the only result of making such a member eligible is that he would now be entitled to contest another election or bye-election, held in future, because after the removal of the disqualification by the Proviso any depot-holder, including those who have been de-seated on account of their being depot-holders, can contest future elections or bye-- elections to a local council and there was no need to confer the eligibility on them specifically, by a separate subsection. As such the conferment of eligibility by subsection (2) on a member who has already been removed can, in the context, only mean that it was conferred retrospectively, from the date of his becoming a member; that his disqualification stood removed from its very inception and that he shall be deemed to have continued. As a member.
14. In view of the above discussion we hold that the provisions of subsection (2) of section 21 can only be considered as having the effect of removing the disqualifications mentioned in the proviso to clause (f) or section 21 retrospectively and the same shall be deemed never to have existed. As a result of this conclusion we hold further that all person (including the appellant depot-holder in the case in hand), who were elected as members, but were removed from membership because of any disqualification mentioned in the, provision of subsection (1) of section 21(f) rear with Article 10(2)(b)(8) of the Presidential Order No. 5 of 1977, by the order of any authority or tribunal constituted under any provision of the Ordinance or by any decree, judgment or order of any Court, shall be deemed always to have been members and shall stand restored to their seats not-- withstanding any other provision to the contrary in this Ordinance.
15. The appeal is consequently accepted with the above noted obser--vation. There shall be no order as to costs.