' ABDUL MOOD MALLICK, C.* J.-The petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1944, to declare the election of respondent, both as Member and Chairman District Council, as void and without lawful authority and to call upon him to show under what authority of law he was holding such public office.
2. Ch. Muhammad Anwar, petitioner and Ch. Muhammad Rashid, respondent, contested the election to the seat of Member of District Council, Mirpur from Chalcsawari, Tehsil Mirpur and Kalri, Tehsil, Bhimber respectively and were elected as Members of the District Council. On 10th December, 1983, they contested the election of Chairman, District Council wherein petitioner secured 28 votes and respondent obtained 33 votes, with the result that respondent was declared elected as Chairman. The respondent was also a Member and Chairman of the District Council, for the term of 1979-83, when on the complaint of Members of the District Council, the Government, empowered under section 25(2) of the Azad Jammu and Kashmir Local Government Ordinance, 1981 (hereinafter referred to as the Ordinance of 1981), delegated its powers to the Revenue Commissioner, Mr. Khalil Ahmed Qureshi, and directed him to hold inquiry and take suitable action in the matter. Consequently, the Revenue Commissioner found the respondent guilty of misconduct and removed him from office of Chairman, District Council, vide his order recorded on 29th September, 1981, in exercise of powers contained under section 25(2)(c) of the Ordinance of 1981. It was contended that the removal of the respondent from office of the Chairman, District Council in 1981, disqualified him to contest election in future, for a period of 7 years. Thus, according to the petitioner, the respondent was disqualified to seek election as a Member as well as Chairman of the District Council, as such present office held by the respondent was without lawful authority. The respondent admitted his removal from the office of Chairman, as alleged in the petition, but controverted the attribution of holding office without lawful authority.
3. In presence of admission of factual aspect of the case, our attention was mainly invited to interpretation of various provisions of law applicable to the case, alongwith the order of removal of respondent from office of the Chairman, District Council, recorded by the Revenue Commissioner on 29th September, 1981, The proposition placed before us, therefore, necessitates examination of scheme of law and its interpretation. As the objection, primarily, pertains to disqualifications ascribed to the respondent for seeking election as Member and Chairman of the District Council, it would be conducive to refer disqualifications recognised by the statute. The disqualifications of candidates for being a Member or candidate for the membership of a Local Council were listed in section 4 of Part 11 of the Second Schedule of the Ordinance. These are reproduce below :- "4. Disqualification of candidates.-A person shall be disqualified for being a member or a candidate for a membership of a local council
(a) if he has ceased to be a national of the Jammu and Kashmir State or has voluntarily acquired the citizenship of a foreign State, or has made a declaration of allegiance to adherence to a foreign State ;
(b) if he is an undischarged insolvent ;
(c) if he has been convicted of an offence or a corrupt or illegal practice relating to elections, or has been found guilty of any such offence or practice in any proceedings for questioning the validity or regularity of an election unless five years or such less period as the Government may, by notification in the official Gazette, specify in this behalf has elapsed from the date of the order, or from the date of the expiration of the sentence, if any ;
(d) If he has been ordered to execute a bond under section 110 of the Code of Criminal Procedure, 1898 (Act V of 1898) or has been, on conviction for an offence involving moral turpitude, sentenced to imprisonment for a term of not less than six months, unless five years or muchless period as the Government may, by notification in the official Gazette, specify in this behalf, has elapsed from the date of the expiration of the period of the bond or sentence, as the case may be ;
(e) x X g 2 x x (deleted) x x ( f ) if he is whole-time salaried official in the service of Government or of a public statutory corporation, a local Council, or a local body or other local authority ;
(g) if he is under contract for work to be done for or goods to be supplied to the local council concerned, or has otherwise any pecuniary interest in its affairs ; (h)if he is for the time being disqualified for membership of an elected body or under any law for the time being in force ;
(i) if be has been on conviction for any offence sentenced to transportation for any term or imprisonment for a term of not less than two years unless a period of five years has elapsed since his release ;
(j) if he has been dismissed for misconduct from the service of Azad Jammu and Kashmir or the service of Pakistan unless a period of five years has elapsed since his dismissal ; or (k)if he is propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Azad Jammu and Kashmir or Pakistan, or which defames or brings into ridicule the judiciary of Azad Jammu and Kashmir or Pakistan, or the Azad Forces of Pakistan ; or
(1) he has been removed or compulsorily retired from the service of Azad Jammu and Kashmir or Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement ;
(m) he has been in the service of Azad Jammu and Kashmir or Pakistan or of any statutory body or anybody which is owned or controlled by the Government or the Government of Pakistan, or in which any of the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service ; or (n)he is found guilty of corrupt or illegal practice under any other law for the time being in force, unless a period of seven years has elapsed from the date on which that order takes effect ; or (o)he has been convicted under section 8 of the Azad Jammu and Kashmir Political Parties Ordinance, 1979, unless a period of five years has elapsed from the date of such conviction ; or (p)he is for the time being disqualified from being elected or chosen as a member of the Legislative Assembly of Azad Jammu and Kashmir under any law for the time being in force ; (q)he has been a Chairman, Vice-Chairman or member of a local Council superseded under section 71 of this Ordinance : ' Provided that the Government may, in any particular case, if satisfied that any of the aforesaid persons is not directly responsible for super. Session of the local Council concerned, order that the disqualification, under clause (p) shall not apply to that person."
' One of the disqualifications entered in clause (p) referred to disqualifications passed on a candidate disentitling him from being elected or chosen as a Member of the Legislative Assembly of Azad Jammu and Kashmir under any law for the time being in force. The qalincations and disqualifications for candidates for election to Legislative Assembly were entered in section 24 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter referred to as the Act).
Subsection (2) of section 24 contained the disqualifications. The same arc entered below :- "24 (2) A person shall be disqualified from so-elected if-
(a) he is of unsound mind and stands so declared by competent authority or
(b) he is an undischarged insolvent unless a period of ten years has elapsed since his being adjudged as insolvent ; or
(c) he has been on conviction for any offence sentenced to transportation for any term or imprisonment for a term of not less than two years unless a period of five years has elapsed his release ; or
(d) he holds any office of profit in the service of Azad Jammu and Kashmir or in the service of Pakistan other than an office which is not a whole-time office remunerated either by salary or by fee other than an office specified in the Second Schedule ; or
(e) he has been dismissed for misconduct from the service of Azad Jammu and Kashmir or the service of Pakistan unless a period of five years has elapsed since his dismissal ; or
(f) he is otherwise disqualified from being a member of the Assembly by this Act or by or under any other law."
' It is evident from the various disqualifications counted under subsection (2) of section 24 of the Act that a person was ineligible to seek election of the Legislative Assembly if he was found liable under either one of the disqualifications mentioned above. The number of disqualifications listed in the Ordinance was larger than the disqualifications prescribed for a candidate to the election of the Legislative Assembly. The Act contained 6 different disqualifications for a candidate to the election of the Legislative Assembly, whereas under the Ordinance, the legislature introduced 17 different disqualifications for being a member or a candidate for the membership of the Local Council. This was just to point out that seeking election as member of a Local Council was comparatively restricted. However, the disqualifications prescribed under the Act were acknowledged as disqualifications mutatis mutandis under the Ordinance but not pace versa.
After making survey of disqualifications prescribed under the Act and the Ordinance rendering ineligible to candidate to contest election as Member of the Legislative Assembly and a Local Council, next we proceed to examine the provisions of the Ordinance relating to removal of Chairman, Vice-Chairman or Member of the Local Council from the office. The relevant provisions were contained in section 25(2) of the Ordinance of 1981. For proper appreciation of the provisions, it is Proposed to reproduce the same below "25(2) Government may after giving him an opportunity of being heard, remove a Chairman, Vice- Chairman or Member of a Local Council from office if he :-
(a) incurs any of the disqualifications specified in Part-It of the Second Schedule ;
(b) absents himself without reasonable cause from three consecutive meet-logs of the Local Council ;
(c) is guilty of an abuse of power or misconduct in the discharge of his duties as a member or has been responsible for any loss or misappropriation of any money or property of any Local Council or any local body or other local authority ; or
(d) refuses to take oath."
' Explanation.-If this subsection, 'Misconduct', includes bribery, corruption and misappropriation or wilful diversion of funds of the Local Council or any attempt at, or abetment of such misconduct."
' A close study of the provisions reflects that the Legislature conferred jurisdiction on the Government in the shape of subsection (2) of section 25, to undertake proceedings to remove a Chairman, Vice-Chairman or Member of the Local Council from office, on finding him guilty of either of the charges described in clauses (a), (b), (c) and (d).
4. Mr. M. Anwar Khan, the learned counsel for the petitioner, endeavoured to convince that the election of the respondent as Member and Chairman of the District Council, was hit by the mischief of subsection (2Xc) of section 25 read with clauses (n) and (k) of section 4 of Part II of the Second Schedule of the Ordinance. The main objection raised by the learned counsel was that the respondent was found guilty of misconduct by the Revenue Commissioner who was authorised by the Government to take suitable action against the respondent in the light of subsection (2) of section 25 of the Ordinance. Thus, in presence of the finding of misconduct of the respondent, he was disqualified to seek election as Member or Chairman of the District Council. Mr. S. M. Zafar, the learned counsel for the respondent, opposed the objection raised by the learned counsel for the petitioner and contended that the red Ervirribm office of the Chairman or Member of Local Council, by itself, was not a disqualification to deny right to contest election in future. He argued that the attributions of corrupt or illegal practice, contemplated under clause (n) and acting in any manner prejudicial to the morality as provided under clause (k) of section 4 of Part-II of the Second Schedule, were not enforceable to the case of the respondent. The penalty available to be visited to a Member or Chairman removed from office under subsection (2) of section 4 of the Act, restricted to his exclusion from seeking re-election to the said office, for the unexpired period of the relevant term.
5. Franchise is one of the celebrated fundamental rights of the citizens of a State. To seek election to the office of Member or Chairman of a local Council, is equally respected by the Constitution.
Therefore, to seek an action of this Court to defranchise, disentitle, disqualify or to deprive a person of vested right of vote or to seek election as a Member or Chairman of a local Council or Member of the Legislative Assembly, is a step amounting t encroachment on guaranteed basic rights. The disqualifications alleged to apply to the case of the respondent, obviously, not only restrict a vested right o. Respondent to seek election to the public office, rather deprive him of such right. The interpretation of these provisions which encroach on rights of the citizens, is to be made strictly. For it is an accepted norm of interpretation of statutes that the statutes which encroached on the rights of the subjects, whether in respect of person or property, were subject to restricted construction. It was advisable that such statutes should be interpreted, if possible, so as to respect the rights of citizens. In Maxwell on Interpretation of Statutes, 20th Edition, page 251, it 1., Is laid down as under :- "-Statutes which encroach on the rig' is of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recogised rule that they should be interpreted, if possible so as to reap such rights, and if there is any ambiguity the construction which is h favour of the freedom of the individual should be adopted. One aspect this approach to legislation is the presumption that statute does no not retrospectively abrogate vested rights, another is the presumption that proprietary rights are not taken away without provision being made for compensation.- "The well-established presumption is that the legislature does not intend to limit vested rights further than clearly appears from the enactment."
' This strict method of construction may be seen, first of all, in the Courts' attitude to statutes which encroach on the individual's rights in his person and liberty."
6. Another well-accepted rule of interpretation was to give plain meaning to the words and expressions used in the statute. This was so as th legislature was always given credit for employing the words which reflected and expressed clearly the intended meaning. This principle was analyses in Craies on Statute Law, 7th Edition at page 92, in the following manner :- "--With regard to what is meant by the expression, 'the plain meaning of the words of a statute', it is necessary on all occasions to give the legislature credit for employing those words which will express its meaning more clearly than any other words ; so that if in any particular instance it can be shown that there are two expressions which might have been used to convey a certain intention, but one of the expressions will convey that intention more clearly than the other, it proper to conclude that, if the legislature uses that one of the two expressions which would convey the intention less clearly, it does not intend to convey that intention at all, and in that event it becomes necessary to try to discover what intention it did intend to convey."
' The leading norms of interpretation as reproduced above, provide a, guideline that to ascertain the intention of the legislature, the words of the statute are to be assigned plain grammatical meaning. In the case of construction of the statute encroaching upon the vested rights of the citizen, it was enjoined upon Courts to assign restricted meaning to such statute. Applying the principle to the case in hand, we have to see the intention of the legislature by Introducing disqualifications entered in clauses (n) and (k) of Part-II of the Second Schedule, as sought to be applied to the present case. First of all, we propose to examine the provisions of clause (n). It is evident from the language of this clause that it conceives the guilt of corrupt or illegal practice under the law other than the Ordinance and rules framed thereunder. This was so as the language used was "found guilty of corrupt or illegal practice under any other law for the time being in force".
The words, 'any other law" palpably referred to the law other than the statute itself. This definition was not even denied by the learned counsel for the petitioner. The other expression was "law for the time being in force". It was accepted that the charge of misconduct attributed to the respondent, was found under the repealed statute. It was undeniable that a repealed statute could not be deemed as law for the time being in force. Thus, both the expressions, namely; (1) "any other law" ; and (ii) "law for time being in force", in there plain meaning could not be stretched so as to bring within the scope and 'horizon of the statute itself. Therefore, in our well-considered opinion, the provisions of clause (n) were enforceable against a person who was found guilty of corrupt and illegal practice under any other law for the time being in force, but would not include the charge of misconduct found proved under the Ordinance and the rules framed under it. The disqualification for a period of 7 sears from the date of the effect of the order. As contemplate under clause (n), was, therefore, not found enforceable against a person ascribed misconduct under the Ordinance itself.
7. The provisions of clause (k) of section 4, Part-II of the Second Schedule, were equally not attracted in the case. The disqualification envisaged by the provision of clause (k) was attracted only to the case of a person who was found guilty of acting in a manner prejudicial, among others, to morality. It was suggested that a person who was otherwise not eligible and qualified to occupy the representative office if found enjoying such office in presence on disability, was deemed to act in a manner prejudicial in morality. The provision may correctly be applied to a case where a person was found as usurped of a representative office but unless such ascribed guilt was positively proved a person could not be attributed the disqualification postulated under clause (k).
In our estimation, the respondent who was though disqualified on account of removal on the charge of misconduct, for the residue period of previous term of local Council, yet he was qualified and eligible to contest the election a member as well as Chairman of the District Council for the current term. Thus, the disqualification entered in clause (k) of section 4 of the Second Schedule, was not attracted to the case in hand. The authorities cited by the learned counsel for the petitioner at the bar were not found apt to the proposition in hand. In M. Saifullah Khan v.
Muhammad Afzal and others (1). Muhammad Afzal, respondent was elected Member of the Union Council in 1979, against a reserved seat for peasants. A person was qualified to be elected as Member of Union Council against a reserved seat for peasants provided :
(I) he was owner of agricultural land not more than 5 Acres ; and (ii) he was engaged personally in cultivation of such land.
' Muhammad Afzal who was elected as member of the Union Council in 1979, inherited agricultural land in 1080, on the death of his father. It was alleged that he was owner of 150 Kanals 10 Marlas of agricultural land, as much disqualified to hold the seat. The objection prevailed, as the attributions made in the petition were not controverted. For the respondent in that case omitted to file that written statement. The question of fact not being denied, the learned Judges who recorded the opinion in the case, arrived at the conclusion that the respondent lost his qualification and legal character as peasant member of the Union Council. At least from the time of death of his father.
Thus, as he was found disqualified w,e,f, 1980 to hold the point, it was observed that occupation of the seat for such period (with effect from 1980) amounted to acting in a manner prejudicial to the morality. In Fateh Khan's case, respondent was ascribed disqualification as member to the Union Council as he was an employee of Sui Nothern Gas Pipeline Ltd. On the date of his nomination as well as at the time of filing of the writ petition. His membership was declared without lawful authority, right from the time of election and he was debarred from acting or holding himself as Member of the Union Council. The facts of both the authorities cited in support of the contention are not found apt to the case in hand. In the instant case, it is already noticed that the provisions of clauses (n) and (k) as canvassed by Mr. M. Anwar Khan, the learned counsel for the petitioner, are not found attracted. The conclusion will be further elaborated in next part of our deliberations.
8. It is already noticed elsewhere that the legislature was presumed to express its intention by using the word which reflected the literal meaning and natural force of such intention. It was. Therefore, enjoined upon the Court to assign precise and restricted meaning to words to the fitness of the matter. As noticed earlier, the order of removal of the respondent was recorded under subsection (2), clause (c) of section 25 of the Ordinance. The provisions were already reproduced in the preceding paragraphs. Clause (c) contemplated removal of the Member, Chairman or Vice- Chairman from office if he was found guilty of abuse of power or misconduct in the {{FOOT NOTE}}
(1) PLD 1982 Lah. 77 {{FOOT NOTE}} discharge of his duties as a member or was responsible for any loss or misappropriation of any money or property of any local Council or any local body or other local authority. The word, "misconduct" was defined in the explanation which signified and included bribery, corruption and misappropriation or wilful diversion of funds of the local Council or any attempt at, or abetment of such misconduct. The legislature introduced clause (c) with the intention of controlling the conduct and behaviour of a member of the local Council in discharge of his duties or functions, in what capacity. In other words, an honest, fair and efficient discharge of duties of members of local council was ensured by introduction of provision of clause (c). Nevertheless, the sphere and horizon of the charge of misconduct, contemplated by clause (c), is confined and restricted only to the discharge of duties and dispensation of responsibilities as member or Chairman of Local Council. Any loss or misappropriation in any money or property of any Local Council, local body or other local authority, occurring in discharge of functions or duties in the capacity of member of a local Council, constituted the charge of misconduct. Thus, the allegation of misconduct under clause (c) could not be deemed to include the attribution of corrupt or illegal practice made under the law other than the Ordinance or rules framed thereunder. In case the legislature wanted to include the disqualifications listed in section 4, Part-II of the Second Schedule, in the scope and horizon of clause (c), as suggested by the learned counsel for the petitioner, there was no need to incorporate clause (a) which expressly and exclusively dealt with disqualifications 'specified in Part-II of the Second Schedule. This was essential as the legislature cannot be attributed surplusage.
9. Another aspect of the provision is that whereas incurring of disqualifications specified in Part-I1 of the Second Schedule was made enforceable for removal of Member, Chairman or Vice- Chairman of a Local Council, the removal of Chairman, Vice-Chairman or Member, as contemplated under this provision of law, was not prescribed as disqualification to contest the election as Member or Chairman of a Local Council. This omission to include the removal among disqualifications, appeared deliberate as in identical situation where local Council was superseded under section 71 of the Ordinance, Members, Chairman and Vice-Chairman of such superseded local Council were disqualified as listed in clause (q) of section 4 of Part-II of the Second I Schedule. Presence of disqualification in clause (q), in the light of provision of section 71 of the Ordinance, further suggested that the legislature never intended to incorporate removal of the Chairman, Vice-Chairman or Memo of the local Council under section 25(2)(c) of the Ordinance, as a disqualification much less a disqualification in the shape of clauses (n) and (k) of section 4 of Part 11 of the Second Schedule. Our this view may not be misconstrued to hold that the removal from office under subsection (2) of the Ordinance, was not a disqualification at all. It was, of course, a disqualification but it magnitude and effect was not beyond the limit of unexpired period of the relevant term of office.
When the words and expressions of a statute were not clear and there was some ambiguity, the interpretation of such part of the statute was permissible with the aid and assistance of past and the repealing statute. Likewise, nuclear words and expressions of repealed statute could be construed by seeking aid and assistance from an identical statute in force. This was so, as/ the law in force could provide a clear guidance to the interpretation of an ambiguous provision of a repealed statute. Applying the principle to the instant mu, our aforementioned view finds complete support from the statutory provisions in force. Subsection (7) of section 25 of the Ordinance, enforced on 20th October, 19S3, has reflected the intention of the legislature in relation to intended disqualification on the ground of removal contemplated under subsection (2) of section 25 of the Ordinance. The relevant provisions in force are reproduced as under :- "(7) When a Chairman, Vice-Chairman is removed from office, be shall not during the unexpired period of the term of office be eligible for re-election to the said office of any local council."
It is evident from the aforesaid provision that the Chairman, Vice-Chairman removed from, office on the charge of one of the liabilities listed in subsection (2) of section 25, was ineligible to seek re- election of the said office of the local c .Until for the unexpired period of its term. The disability or disqualification incurred by removal from office was, therefore, restricted and confined to the remaining period of the term of office of the local council. Thus, it was too much to ask this Court to stretch the scope and influence of this disqualification so as to bring within the ambit of its mischief the next term of office of membership or Chairman of a local Council.
10. It was a recognized norm of interpretation of the statutes' that contemporaneous construction placed upon the statute by the officers or the department charged with duty of executing it, was entitled to more or less weight, especially when such construction was made by the highest officer in the executive department of the Government. The Government being entrusted with a duty to execute the will of the legislature, was considered to appreciate such will of the legislature in letter and spirit and to act upon it in the intended manner. In this view of the matter, the order of removal of the respondent from office of the Chairman of the District Council has to be accepted as construing true intention of the legislature, expressed in the words and language of the provision of subsection (2). As mentioned elsewhere, the Revenue Commissioner removed the respondent from office of the Chairman of the District Council, on the charge of misconduct as envisaged in subsection (2) (c) of section 25 of the Ordinance. A close study of the order of removal of the respondent reflects that the Revenue. Commissioner, on finding the respondent guilty of misconduct, removed him from office of the Chairman for the remaining period. The language used in the order clearly supports this view, as the order ends with the following words {{URDU TEXT}} ' This suggests that the Government or the officer who was delegated powers of the Government under section 25 of the Ordinance, also adhered to interpretation made by this Court and felt satisfied only in removal of the respondent from office of the Chairman and Member of the District Council. In case the intention of provision was the same as Mr. M. Anwar Khan, the learned counsel for the petitioner, suggested, there was no reason or hindrance not to describe so in the order of removal. In that case, the Revenue Commissioner could have also imposed a restriction on the respondent to debar him from seeking election of Member and Chairman of the District Council, for next term. Absence of restriction or disqualification from the order of removal, obviously, leads to the conclusion that the Government or the Revenue Commissioner, acting on behalf of the Government, expressed intention of the legislature by construing the provision in the shape of said order.
11. It was pointed out that the repealed statute was to be given full ' effect in respect of rights, remedies, penalties and actions envisaged by it. The removal of the respondent having been made, though under a repealed' statute, was to be given full effect. The contention raised by the learned counsel for the petitioner in this behalf, was not, as a matter of fact, incorrect, as under section 6 of the General Clauses Act, repeat of a statute was not to M effect any right, privilege, obligation or liability required, accrued or incurred, under the repealed enactment. Likewise, a penalty, forfeiture, punishment incurred in respect of any offence, committed against a repealed enactment was not affected. Applying this principle to the present case, it was accepted that the act of removal of the respondent from office of the Chairman of the District Council, under the Ordinance of 1981 (repealed after 4 months) was not obliterated. It had its effect, but only during the specified period i,e, till the expiry of residue of the term of office. The saving clause of the repealing Ordinance equally gave protection to judgments, decrees, orders of Courts, including the High Court, everything done, all actions taken, notifications issued, orders or appointments made, proceedings initiated, jurisdiction or powers exercised, under the provisions of repealed Ordinance.
The saving' clause of the Ordinance read with section 6 of the General Clauses Act, pro-{ vided protection to all orders . And actions recorded under the provisions ()fib! The repealed Ordinance but such protection could not be construed to extend; the life of a statute after its legal death or beyond the limit of its constitutional life. .
12. In this view of the matter, we are not persuaded to uphold the claim of the petitioner and to annul the election of the respondent as Member and Chairman of the District Council. In our view, the order of removal of the respondent from the office of Chairman of the District Council under section ,5(2Xc) of Ordinance of 1981, rendered him disqualified to seek re-election 0 to the same office for the unexpired period of that term. On the lapse of that term of office, disqualification, obviously, obliterated. The respondent was, therefore, eligible and qualified to be a Member and Chairman of the District Council for the current term of District Council. The petition being devoid of force is dismissed with costs.