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Petitioner: Malik GHULAM ABBAS VS Respondent: Malik MUHAMMAD MUMTAZ KHAN AND 2 OTHERS
Court Name: Lahore High Court Judge(s): Aftab Hussain, Zakiuddin Pal Title: Malik GHULAM ABBAS vs Malik MUHAMMAD MUMTAZ KHAN AND 2 OTHERS Case No.: Writ Petition No, 5902 of 1979 I. C. A. No, 559 of 1979 Date of Judgment:1980-05-27 Reported As: PLD 1980 Lahore 718 Result: Members declared to be not qualified to be elected.
JUDGMENT
JUDGMENT ' AFTAB HUSSAIN, J.-This judgment will dispose of Writ Petitions Nos, 5902, 5732, 5796, 5901, 6111, 6246, 6546, 6553, 6559, 6571, 6597, 6627, 7174, 7311, 7570, 8040, 8364 all of 1979 and Writ Petition No, 2449 of 1980 since there is a common question of law involved whether by virtue of section 21 ( f ) of the Punjab Local Government Ordinance, 1979, persons who were members or associates of an unregistered political party within two months preceding the Publication of a notification under section 11 of the Representation of the Peoples Act, 1976 and were thus disqualified to be candidates for elections to the Provincial or National Assemblies also incurred the disqualification in regard to the membership of a local council particularly when the disqualification came into force either after the acceptance of nomination papers or after the elections to the local councils had already been held but prior either to the declaration of result or, in any case, publication of its notification. Thus these petitions involve the interpretation of clauses (7-a) and (7-c) of subsection (2) of section 10 of the Houses of Parliament and Provincial Assemblies (Elections) (Second Amendment) Order, 1977. 2. The Punjab Local Government Ordinance, 1979, came into force on the 31st of July 1979. It provided for composition of local councils and elections to those councils. According to the schedule of election, the date of filing the nomination papers throughout the Punjab was fixed as 12th September 1979, and the elections were scheduled to be held on 25th September. The election results were declared on the 27th of September 1979, and were notified in the official Gazette on the 9th October 1979. The members so notified took the oaths of their offices save in exceptional cases on the 11th October 1979.
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3.. The Punjab Local Government Ordinance, 1979, in its section 20, provides the qualifications of candidates and members and in its section 21 deals with the disqualifications of the candidates and members. The qualifications are only two-firstly that a candidate must have attained the age of twenty-five years on the last date fixed for filing the nomination papers and secondly that his name should appear on the roll of the electoral unit for which he seeks election. 4. Section 21 deals with disqualification of candidates. It provides that a person shall be disqualified to be a candidate or member of a council, (a) if he has ceased to be a citizen of Pakistan; (b) if he is an undischarged insolvent ; (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 ; (g) if he has been dismissed from Government service or the service of local council on charges of corruption and a period of three years has not elapsed from the date of such dismissal ; (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 ; and "(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." 5. The decision of these cases depends upon the interpretation of clause (f) which for facility of reference I have quoted at the end although in section 21 it appears before the two other clauses numbered as (g) and (h). 6. By reference clause (f) inter alia applies the provisions of section 10(2) of the President's (Post Proclamation) Order 5 of 1977 which deals with the disqualifications for membership of the Parliament and the Provincial Assemblies. Some of these disqualifications were already in force on the date when the nomination papers for elections to the Local Councils were filed for example in clause (b)(4) of subsection (2) of section 10 there is disqualification "if he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share of interest, unless a period of two years has elapsed since he ceased to be in such service". 7. But certain disqualifications were added either after the date fixed for filing nomination papers or even after the elections for membership of the Local Councils. Thus by President's Order No, 15 of 1979, entitled as `Houses of Parliament and Provincial Assemblies (Elections) (Second Amendment) Order, 1979' and enforced on 19th September 1979, after clause (7) of section 10 of the Houses of Parliament and Provincial Assemblies (Elections) Oilier, 1977, inter alia the following disqualification was added. "(7-a) if he is a member of a political party which has not been registered, or the registration of which has been cancelled, under the Political Parties Act, 1962 (III of 1962)." ' Clause (7-b) was also added but it is not material for the purpose of this judgment. 8. By President's Order No, 18 of 1979, known as Houses of Parliament and Provincial Assemblies (Elections) (Third Amendment) Order, 1979, which was enforced with effect from 27th September 1979, a further clause (7-c) was added after clause (7-b) which is as follows "(7-0 if he has, during the period of two months preceding the publication of the notification under section 11 of the Representation of the Peoples Act, 1976 (LXXXV of 1976\ been a member or supporter of, or associated with, a political party, unless he is put up by that political party as a candidate." ' Thus by sub-clause (7-a) it was provided that a person who is a ,member of a political party which has either not been registered or registration of which has been cancelled under the Political farties Act would be disqualified from being elected as a member of the Provincial and National
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Assemblies of Pakistan. By clause (7-c), any person who, during the period of two months preceding the publication of notice under section 11 of the Representation of the People Act, 1976, has been a member or supporter of, or associated with a political party unless he I s put up by that political party as a candidate, was also disqualified. 9. Clause (7-a) was further amended on 8th October 1979, by President's Order No 20 of 1979 known as Houses of Parliament and Provincial Assemblies (Elections) (Fourth Amendment) Order, 1979, and was substituted by the following sub-clause :-- "(7-a) if he is a member of a Political Party which is not eligible under Political Parties Act, 1962 (III of 1962) to participate in an Election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such Election ; or." ' Thus a member of a Political Party which was not eligible under the Political Parties Act, 1962 to participate in an election to a seat in a House of Parliament or a Provincial Assembly was disqualified from being nominated or put up as a candidate at any such election. 10. It will thus be seen that the first relevant amendment introduced by President's Order No 15 by addition of clause (7-a) came into force on the 19th September 1979 when the date of filing of nomination papers (12-9-1979) had already expired. Clause (7-c) was added by President's Order No 18 on the 27th September 1979, on the very day when the election results were to be announced by different Returning Officers in the Punjab, while clause (7-a) in its amended form was enforced by President's Order No, 20 of 1979 after the date of announcement of Local Councils Election results but prior to their notification i,e, 9-10-1979. 11. In order to appreciate the arguments, it would be necessary to deal with the history of the changes in the Political Parties Act which affected the eligibility of a person to participate in the elections of the Parliament or the Provincial Assembly. The Political Parties Act, 1962 (Act III of 1962) regulated the formation of Political Parties, their lawful political activities, certain disqualifications as regards membership of Political Parties, dissolution of a political party and certain, disqualifications for being member of the National Assembly or a Provincial Assembly. Thus section 8 provided for such disqualifications in respect of office-bearers of a central or provincial committee of a party which has been dissolved under subsection (2) of section 6 or who has been convicted under section 7. This Act was amended later in the previous regime but it is unnecessary to deal with other amendments except those enforced after the 5th of July 1977, when Martial Law was promulgated. By Martial Law Regulation No, 18 issued by the Chief Martial Law Administrator and published in the Gazette of Pakistan dated the 27th of July 1977, it was directed that no political party or person shall propagate any opinion or act in a manner prejudicial to the Ideology of Pakistan, or the integrity or the security of Pakistan or prejudicial to the purpose for which Martial Law has been proclaimed. It also prohibited the use of force, violence, intimidation etc. Seduction of a person from his allegiance or his duty, interference with the functioning of any political party or its members etc., taking out processions of political nature, attending a public meeting armed with any deadly weapons or instruments which can be used for causing injury etc. Or doing anything which is calculated to create hatred against any religion, community, race, class, sect or tribe or between people of different regions or which is calculated to incite the people to violence or to cause damage to any property. It also provided for penalty for contravention of these provisions. 12. The Political Parties Act, 1969, was amended by the Political Parties (Amendment) Ordinance, 1978, providing for prohibition in regard to formation of certain political parties. Substituted section 3 of the Ordinance provides that no person shall form, organise, set up either with foreign aid or at the instance of any foreign Government or Political Party of a foreign country or affiliation to or association with any Government or Political party of a foreign party with the object of propagating any opinion or acting in any manner prejudicial to the Islamic Ideology, or the sovereignty or integrity or the security of Pakistan, or morality, or the maintenance of public order.
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13. On the 30th August 1979, Political Parties (Amendment) Ordinance, 1979, was enforced which added sections 3-A and 3-B to the Act. Section 3-A provided that "every political party shall, in such manner and form and at such times as may be provided by rules made by the Federal Government, account for the source of its funds to and submit its finances and accounts to audit by, an officer or authority authorised by the Election Commission in this behalf, provided that every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall account for the source of its funds, and submit its finances and accounts to audit, within fifteen days of the publication of the rules made under this section". ' By section 3-B it was provided that "every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall, within one month of such commencement, apply to the Election Commission for registration in such form as the Election Commission may specify and shall be accompanied by certain documents specified therein. Subsection (4) provided for cancellation of registration of a political party for the reasons given in that subsection. Subsection (6) of section 3-B further provided that a political party which has not been registered under subsection (3), or the registration of which has been cancelled under subsection (4), shall not be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election. 14. Another amendment was made on the 27th Sept ember 1979, by the Political Parties (Second Amendment) Ordinance, LII of 1979 which added inter alia disqualification in regard to registration of a political party in subsection (3) which provides for cases in which the Election Commission shall register a political party applying for registration. One of the conditions of eligibility to registration added by this Ordinance is "has submitted its accounts as required by section 3-A". 15. The last amendment in the Political Parties Act is by the Political Parties (Third Amendment) Ordinance LIII of 1979, which was enforced on 8th October 1979, to make provision for registration of political parties which had complied with the provisions of section 3-A but had not applied for registration under section 3-B. 16. Thus the amendment introduced in the Political Parties Act, 1962, on the 30th August 1979, provided in its section 3-A for submission of accounts by the existing political parties to the Election Commission within fifteen days of the publication of the rules made under that section. The Rules known as the Political Parties (Audit and Account) Rules, having been published on the 3rd September 1979, it became obligatory upon the existing political parties to submit their accounts under section 3-A by the 18th September 1979. Though in the Ordinance dated 30th August 1979, there is no specific provision making the political parties ineligible to registration on their failure to comply with the provisions of section 3-A, but this can be spelt out by reference to subsection (6) of section 3-B which provided for cancellation of registration in case of non-compliance with the provisions of section 3-A. However, that defect was removed by the Second Amendment Ordinance which came into force on the 27th September 1979. This eligibility clause was specifically provided in subsection (3) of section 3-B meaning thereby that the Political Parties which had not submitted accounts could not be treated to be eligible for registration. It, therefore, follows that such parties or their members would be disqualified from participating in the elections of Parliament or the Provincial Assembly by virtue of the provisions of President's Order No, 15 of 1979, dated the 19th September 1979, read with provisions of section 3-B of the Political Parties Act. 17. Writ Petitions Nos, 5902, 5732, 5796, 6546, 6553, 6559, 6597, 6627 and 8040 of 1979 have been filed to challenge membership of Zilla Councils of Malik Muhammad Mumtaz Khan, Habibullah Khan Niazi, Sardar Muhammad Ashiq, Syed Hamid Raza Gilani, Ch. Muhammad Azhar, Ch. Muhammad Aslam, Sardar Liaquat Ali, Pir Shujaat Hussain Qureshi and Syed Ali Raza respectively. Writ Petitions Nos, 6571, 7174, and 7311 of 1979 are against the elections of Malik Abdul Razzaq Khan, Mir Abdul Rashid Ashk and Ghulam Hussain Cheema to the Municipal Committees of Bhakkar,
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Sargodha and Mian Channu, respectively. Writ Petition No, 5901 of 1979 has been filed to challenge the election of Ch. Irshad Ahmad to Union Council Dhoria, Tehsil Kharian while Writ Petitions 6246 and 7570 of 1979 are against Abdul Rehman Wahla in regard to his election, as Member, Town Committee Jehanian. The last Writ Petition No, 2449 of 1980 has been filed by Wahid Bakhsh who was elected a member of Town Committee Jampur, District Dera Ghazi Khan but was later dismissed from membership under section 29 of the Punjab Local Government Ordinance. For facility of reference these persons will be called as 'Elected Members' while those who challenge their election will be called 'petitioners'. 18. The common feature of all these writ petitions is that the elected members filed their nomination papers for election either to the National or Provincial Assembly as candidates of an unregistered political party, namely, Pakistan People's Party, or as associates of that party but their nomination papers were dismissed by the Returning Officer on account of their association/membership/candidature of an unregistered political party. They were held to be disqualified either under clause (7-a) or clause (7-c) of section 10(2) of the Houses of Parliament and Provincial Assemblies (Elections) Order No, 5 of 1977 as amended by President's Orders Nos, 15 and 18 of 1979. Appeals were filed against the rejection of the nomination papers before the Member of the Election Commission (Zakiuddin Pal, J.) who dismissed the same on the same ground. The case of the petitioners is that in view of section 21 (f) of the Punjab Local Government Ordinance, 1979, these persons were also disqualified from being elected as members of the Union Councils, Town Committees, Municipal Committees or District Councils as the case may be. 19. The elected members do not deny the rejection of their nominations to the election of Provincial/National Assembly. Their main objections are to the applicability of clause (7-a) and clause (7-c) to their elections to the Local Councils. 20. These cases were argued on behalf of the petitioners by Mr. A. Waheed Salim, Advocate, and Mr. Iqbal Ahmad, Advocate and on behalf of the elected persons by Mr. Khalid Farooq Qureshi, Mr. Danishwar Malik, Mr. Aitzaz Ahsan, Raja Muhammad Sabir, Mr. Muhammad Hanif Khan Niazi and Mr. Ahmad Tariq Rahim, Advocates. These arguments with few exceptions were common. The other learned counsel adopted the arguments of one party or the other. 21. Now it is a fact that the present plea of disqualification was not available to any of the petitioners on the date of filing of nomination papers or even on the date of elections since the nomination papers were filed on the 12th September 1979, and the elections to the Local Councils were held on the 25th September 1979. There 'was still time, when the nomination papers were filed, for the political parties to submit their accounts to the Election Commission since the last date for submission of accounts was the 18th of September 1979. The learned counsel for the petitioners, however, based their arguments on the ground that though clauses (7-a) and (7-c) were not available on the date of the nomination papers and consequently no objection to that effect was or could have been taken at that time but in the case of the members or associates of the Pakistan People's Party clause (7a) became available at least on the date of enforcement of the amended President's Order No, 15 of 1979 (19-9-1979), since that party had not submitted its accounts by the 18th September 1979, and was thus disqualified from applying for registration under the Political Parties Act and consequently could be described as an unregistered political party. On the same ground clause (7-c) was attracted as a disqualifying clause to these elected persons with effect from 27th September 1979. In these circumstances, the elected persons could not have been declared elected on the 27th September 1979, and, in any case, their election could not be notified on the 9th October 1979, nor later could any oath of office be administered to them. Section 21 of the Punjab Local Government Ordinance, 1979, provides that a person is disqualified not only for the candidature but also from being a member. The disqualification was, therefore, applicable at least to the membership of these elected persons if not to their candidature.
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22. 22. Mr. Khalid Farooq formulated his points as follows :- (i) Section 21 (f) does not adopt by reference any provision whatsoever of section 10 of the Houses of Parliament and Provincial Assemblies Order as the disqualifications there are by the Act of Parliament and the adopted disqualifications under section 21 (f) are under the Act of Parliament. (ii) In a case of adopted legislation, adopted statute must be adopted with such adaptation and modifications which are essential for the purpose of the adopting statute and the object of the statute should be kept in view. (iii) The adoption of provisions by reference of the laws as they stood on 31-7-1979, the day of promulgation of Ordinance VI of 1979, and any other amendment made later in the adopted statute do not in the instant case fall within the legislative intent as adopted, particularly when the adopting statute could function without such adoption. (iv) Assuming that clauses (7-a) and (7-c) of section 10 are applicable and the respondents were originally disqualified, such disqualification had ceased to exist on the day the council was to begin functioning. The writ of quo warranto cannot, therefore, be issued. (v) In any case, if the alleged disqualification does not exist on the day of issuance of the writ, the writ shall not issue. (vi) The relief asked for is in the nature of quo warranto and it relates to the holding of public office. Any proceedings, by election or in any other manner, taken to the resumption of public office cannot be questioned by quo warranto. All the writ petitions are, therefore, premature. (vii) The jurisdiction being equitable, considering the totality of the effects, Courts may not like to interfere. 23. The question whether the provisions of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1979, are applicable to elections to the Local Councils under the Local. Government Ordinance, 1979, is not a new question. It has already been decided in a number of cases. This matter came up for consideration before the Supreme Court in Umer Draz Cheema v. Nazar Muhammad and others (1). Two Civil Petitions for Special Leave to Appeal were disposed of by their Lordships by one judgment. In the first case the petitioner was in the employment of the Punjab Text Book Board, "a statutory body, owned and controlled by the Provincial Government". He left the service on the 4th January 1978. An objection was taken to the validity of his nomination paper on ground of his ineligibility to seek election since two years had not elapsed from the time when the petitioner had left service in view of his disqualification under section 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order No, 5 of 1979. The nomination paper was, however, accepted and the objection was overruled. A review petition filed under section 17 of the Punjab Local Government Ordinance, 1979, before the Punjab Election Authority was rejected on the 21st September 1979. A writ petition against that order, however, succeeded. 24. The Punjab Election Authority had held that the disqualifications enumerated in Article 10 of President's Order No, 5 of 1977, could not be read into clause (f) of section 21 of the Ordinance as that Presidential Order (1) 1980SCMR 156 was only meant for the "forthcoming elections" to the Parliament and the Provincial Assemblies to be held on 17th of October 1977. It was further held that the Ordinance, being a special law, would override the other general laws by reason of section 4 of the said Ordinance. While construing clause (f) of section 21, it was held :- " The words 'is disqualified' means he has been disqualified or stands disqualified and not 'can be disqualified'. Hence it means to the past and not future. Thus clause (f) of section 21 has got limited scope and applies to those persons who already stand disqualified for membership of the
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Parliament or a provincial assembly under any law for the time being in force. Consequently, all disqualifications under P. 0. 5 or other statutes would not ipso facto apply under section 21 of the Ordinance. The disqualifications which are not mentioned in section 21 cannot be imported through the back door." 25. Same arguments were addressed on behalf of the successful candidates in the High Court and it was further contended that unless there was a specific order of disqualification against a candidate it should not be read as a disqualification in terms of clause ( f ) of section 10 of the Ordinance. It was also argued that there were inconsistencies in several clauses of section 21 and those of Article 10 of the Presidential Order. 26. The High Court, however, held that there was no conflict between section 21 and Article 10 of the President's Order and insertion of disqualification in 10 of the Order into clause (f) of section 21 was a legislative act which made the disqualification an integral part of the…
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