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Writ Petition No. 5271 of 1979, decided on 12th December, 1979.
--Art. 199 read with Punjab Local Councils Ordinance (VI of 1979), Ss. 21(h)(f ) 24 & 29, Punjab Local Councils (Election Petitions) Rules, 1979, r. 3 and Houses of Parliament and Pro vincial Assemblies (Election) Order (5 of 1977), Art. 10 (2)(6)(8).
Writ --Petitioner, a voter in same constituency- Entitled in law to lay information before High Court Mere fact of other remedy being available--Held, does not always preclude institution or determination of constitutional petition for quo warranto-Section 24 of Ordinance being part of sub-constitutional law cannot limit or control jurisdiction of High Court under Art. 199.
It is contended that the petitioner who was only a voter, had on casting his vote, have exhausted all the rights made available to him as a voter, and that, thereafter, he had no locus standi to initiate pro ceedings in the nature of quo warranto against the respondent.. It was contended that the only pet son who could be said to be aggreved was the losing contestant Held, the petitioner is a person entitled in law to lay information before the Court, and moreso in view of the fact that he is a voter in the very constituency from which the respondent has been declared to be elected.
Held further, it was contended that as the contesting candidate had moved the Election Authority for relief, this petition did not lie is again not supported by any judicial precedent. It would be a different thing to urge that other adequate remedy being available, the petition ought not to be entertained. Rut the petitioner could not approach the Election Tribunal. Even otherwise, this petition being a proceeding in the nature of a quo warranto, in which the facts are admitted it can be disposed of solely on the basis of the determination of the questions of law involved. Further in proceedings in the nature of quo warranto the mere fact that other remedy is available does not always preclude the institution or determination of a Constitutional petition.
Held also further, the argument is misconceived. Section 24 is part of sub-constitutional law and cannot limit or control the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan. In the exercise of constitutional jurisdiction the superior Courts can set aside actions taken or orders passed notwithstanding finality conferred by sub-constitutional laws, for the Constitution overrides all laws.
In so far as a defeated candidate is concerned he cannot in the first instance call in question an election except by means of an election petition. However, even in such cases after exhausting the sub-constitu tional remedies available, there is no bar to a defeated candidate bringing into question the result of an election, by means of a writ petition. Sub ject to the above, the Court is not aware of any restrictions. There are no restrictions on the right of any person, including a voter, to initiate proceedings in the nature of quo warranto under Article 199 of the Cons titution against a person who claims to hold a public office. The Court is also not aware of any other adequate remedy being made available under the Ordinance to a voter, to call into question the result of an election. Section 29 of the Ordinance of course provides a forum for the removal of a member who incurs a disqualification, but this would obviously refer to disqualifications incurred after he has been declared to be elected.
Muhammad Khan v. Muhammad Sarfraz Khan and others 1980 C L C 1 ; M. U. A. Khan v. M. Sultan and another P L D 1974 S C 228 Muhammad Ali v. Muhammad Bashir P L D 1962 L3h. 230 ; Farzand ' Ali v. The Province of West Pakistan P L D 1970 S C 98 ; Munir Ahmad v. Returning Ofcer P L D 1966 Kar. 1 and Zahur Ilahi v. State p L D 1977 S C 273 ref.
--- S. 21(f)-Person disqualified from being a member of Parliament under any law in force-Held, could be disqualified from being a member of a Local Council.
Muhammad Khan v, Malik Afuhammad Sarfraz Khan 1980 C 1. C 1 re . f.. 3,M.
S. 21(f), (h) read with Houses of Parliament and Provincial Assemblies Elections Order, 1977 [C.M.L.A.'sJ No 5, Art. 10(2)(b).
.
(8)-Application of cis. (f) & (h) of S. 21 of Ordinance-Clause (h)I', restricted in its application only to contracts for work to be done or goods to be supplied to Local Council and does not derogate from general applicability of clause ( f ) which would be attracted, if a person is sought to be disqualified on basis of contract other than with Local Council--Depot-holder-Held, stands disqualified by virtue of S. 21(f) of Ordinance read with Art. 10(2)(b), (8) of order from being member of Local Council.
seq & G .: Sardar Muhammmad Jafar Khan Leghari v. Election Commission P L D 1978 Lah. 76 ; Muhammad Khan v. Malik Muhammad Satfraz 1980 C L C 1 and Sind Employees' Social Security Institution and another v, Adam'ee Cotton Mills Ltd. P L D 1975 S C 32 ref.
Ghulam Hussain Qureshi for Petitioner
M. A. Aziz for Respondent No. 1.
Respondent No. 2 in person.
This petition arises out of the election held on 25-9-1979 to the Union Council Kariala, Tehsil Chakwal, District Jhelum, which was won by Respondent No. 1 (hereinafter referred to as the respondent). At the time of the scrutiny an objection was raised against the accep tance of the nomination papers of the respondent on the ground that he was a depot-holder in Village Tharpal, which is within the territorial limits of the Union Council, Kariala. The objection was upheld and the nomination paper rejected by the Returning Officer vide his order dated 13-9-1979 (Annexure A' with the petition), on the ground that the respondent stood disqualified by virtue of section 21( f ) of the Punjab Local Council Ordinance (VI of 1979), (hereinafter referred to as the Ordinance), read with Article 10(2) (b) (8) of the Houses of Parliament and Provincial Assemblies (Election) President's (Post Proclamation) Order 5 of 1977 (hereinafter referred to as P.P.O. 5 of 1977). The-: respondent's appeal against the rejection of the nomination paper was accepted by the Appellate Authority by its order of 20th September 1979, Annexure B' with the petition), on the ground that by virtue of clause ( f ) of section 21 of the Ordinance all the disqualifications enumerated in the representation of Peoples Act, 1976 or P. P. O. 5 of 1977 were not attracted, and the respondent being a depot holder was also not disqualified under clause (h) of section 21 of the Ordinance. A review application was filed before the Punjab Election Authority presumably under section 17 of the Ordinance by one of the contesting candidates on 21-3-1979 but according to the Petitioner the same has not yet been heard or disposed of. It was in these circumstances, that the petitioner who is a voter in the aforesaid electoral, unit, filed the present petition, contending inter alia that the respondent was disqualified under clause ( f ) of section 21 of the Ordinance read with Article 10(2) (b) (8) of Order 5 of 1977 to be a candidate or a member of the Local Council. Petitioner relies on a judgment of this Court in the case of Muhammad Khan v. Muhammad Sarfraz Khan and others W. P. No. 5019 of 1979 decided by me on 24th September, 1979.
2. Learned counsel for the respondent stated that the respondent was not filing a written statement as he did not controvert that the respondent was a depot holder for the distribution of wheat, sugar, atta, etc. in Village Tharpal which was in the territorial limits of Union Council, Karial, to which he had been declared elected. Learned counsel also submitted that in view of the judgment in Muhammad Khan's case afore-referred he would not contend that by virtue of clause (f) of section 21 of the ordinance a person would not be disqualified to be a candidate or a member of a Local Council, if he is for the time being disqualified for membership of the Parliament or a Provincial Assembly under P.P.O. 5 of 1979 or under any law for the time being in force. He however contended that the provisions of clause (f) afore referred were not attracted in the case of the respondents as according to him disqualifications in relation to contracts were only to be governed by the provisions of clause (h) of section 21 which it was argued, did not disqualify the respondent.
3. Before examining this contention of the learned counsel for the respondent it is necessary to deal with certain preliminary submissions.
4. It was firstly contended that the petitioner who was only a voter, had on casting his vote, exhausted all the rights made available to him as a voter, and that, thereafter, he had no locus standi to initiate pro ceedings in the nature of quo warranto against the respondent. It was contended that the only person who could be said to be aggrieved was Wajib Hussain the losing contestant. Learned counsel for the respon dent conceded that under rule 3 of the Punjab Local Councils (Election Petition) Rules, 1979, only a candidate could file an election petition and that the Petitioner not being a candidate could not question the respon dent's election before the Election Tribunal. Learned counsel was, however, unable to cite any judicial precedent or to refer to any principle of law in support of the proposition advanced by him. In reply, learned counsel for the petitioner referred to the judgment of the Supreme Court in the case of M. U. A. Khan v. M. Sultan and another (1) where in relation to Article 98 of the 1962 Constitution, which is identi cal in its terms to Article 199 of the Constitution of Pakistan, the Supreme Court observed that for the purpose of qua warranto the peti tioner did not have to be an aggrieved party, and that jurisdiction of the High Court could be invited by any person, for the matters contemplated by sub-clause (b) of Article 199(i)-
"are of public importance and interest and it is enough that they are brought to the notice of the Court without the petitioner having personal interest in the matter. The High Court was, therefore, in error in thinking that the petitioner before them had to be an aggrieved party for the purposes of urging any of the grounds against the validity of the respondents appoint ment to a public officer."
In this behalf reference can also made to the judgment of Anwarul Haq (as he then was) in the case of Muhammad Ali v. Muhammad Bashir (P L D 1962 Lah. 230) where it was observed :---
"It will be seen that the authorities do not insist that a relator in quo warranto proceedings should be either an elector or a candidate for the election to which the proceedings relate. It is enough it' he has a visible interest in the public office concerned. For this purpose it is not necessaty that he should be a voter or a candidate. Any resident of a local area, to which the public office relates, would appear to have the requisite interest, and for that reason the locus standi to present a petition for quo warranto. The petitioner Sardar Muhammad is admittedly a resident of the area from , which the. respondent was elected as a member of the Local Council. He is, therefore, competent to present the petition."
In the circumstances, the petitioner is a person entitled in law to lay information before this Court, and more so in view of the fact that he is a voter in the very constituency from which the respondent has been declared to be elected.
5. Secondly, it was contended that as the contesting candidate Wajid Hussain had moved the Election Authority for relief, this petition did not lie. The proposition as formulated by the learned counsel for the' respondent is again not supported by any judicial precedent. It would be a different thing to urge that other adequate remedy being available, the petition ought not to be entertained. But as indicated above, the petitioner cannot approach the Election Tribunal. Even otherwise, this petition being a proceeding in the nature of a quo warranto, in which the facts are admitted it can be disposed of solely on the basis of the determination of the questions of law involved. Further in proceeding in the nature of quo warranto the mere fact that other remedy is avail able does not always preclude the institution or determination of a Cons titutional Petition. In this context the learned Chief Justice of the Supreme Court in the case of Farzand Ali v. The Province of West Pakistan (P L D 1970 S C 98) whilst rejecting the proposition that a pre-election disqualifi cation could not be questioned in a writ petition particularly when the law provides a forum for such purposes observed :-
"I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dis pute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of qua warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinzing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still con tinuing. Indeed a writ of quo warranto, unless expressly barred by some statute, is available precisely for such a purpose.
The introduction of election petitions to test the validity of elec tions and statutory provisions for appeals, have no doubt reduced the demand for the remedy but have not excluded it altogether. It will still be available in all cases where the matter is, as in the case under consideration, outside the scope of the statutory remedy.
I can see no reason why relief by way of quo warrunto should not be available in a case where the remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualification is a continuing one which debars a person not only from being elected to an office but also from holding that office.
This is not also an election dispute for the persons seeking to challenge the title of the respondent to participate in the pro ceedings of the National Assembly could not have maintained any election petition. Indeed election petition filed against 8 of the said respondents were in fact dismissed. In the circumstances although the said respondents were liable to the penalty provided under clause (3) of Article 104 yet there was no machinery available for adjudicating on the question as to whether they were or were not might well borrow the words of Avory, J. in Rex v. Speyer that it is difficult to imagine a question more fit for determination in a Court of law, and I know of no authority in the Constitution competent to determine it other than the Courts of law'.
In this view of the matter it cannot also be said that there was any adequate alternative remedy available within the meaning of clause (2) of Article 98 of the Constitution of 1962 to defeat the right given by sub-clause (b) (ii) of clause (2) of Article 98 to call upon any person holding or purporting to hold a public office to show under what authority of law he claims to hold that office. To refuse the remedy in such a case would produce the strange result that the Court would be thereby perpetuating an, illegality."
In this context it would be profitable to reproduce the observations of Anwarul Haq, J, (as he then was) in the case of Munir Ahmad v. Return ing Officer (P L D 1966 Kar. 1) which are to the following effect :-
"Finally, the contention that there is an alternative remedy avail able to the petitioner by way of an election petition under section 58 of the Act also does not appear to us to have any force, for the reason that in view of our finding that respon dent No. 3 was not entitled to be enrolled as voter in this unit on the date on which he was enrolled, it is clear that we would be failing in our duty if we did not give effect to this finding against the respondent, simply because there is another remedy which may be open to the petitioner to challenge the election of the respondent. It would be highly unjust and inequitable to force the petitioner to resort to further litiga tion to establish something which he has already succeeded in doing in this Court, namely, the ineligibility of the respon dent to be nominated for election from the unit concerned. We are, therefore, of the view that it is our duty to give a declaration that the nomination paper of the respondent was accepted without lawful authority, and, as a result, his election must be regarded as null and void."
The submission as such has no force and is rejected.
6. Lastly, it was contended that by virtue of section 24 of the Ordinance, an election can only be called in question by an election, petition, that rule 3 of the Election Petition Rules only. permits a defeated candidate to question the result of election and therefore the petitioner being a mere voter could not in any case be allowed to call into question the election of the respondent. The argument is misconceived. Section 24 is part of sub-constitutional law and cannot limit or control the constitutional jurisdiction of this Court' under Article 199 of the Constitution of Pakistan. As held by the Supreme Court in Zahur Ilahi v. State (P L D 1977 S C 273 5140) in the exercise of constitutional jurisdiction the superior Courts can set aside actions taken' or orders passed notwithstanding finality conferred by sub-constitutional laws, for the constitution overrides all laws. 1, however, do not disagree with the learned counsel for the petitioner that subject to certain recognized exceptions, in so far as a defeated candidate is concerned, he cannot in the first instance call in question an election except by means of an election petition. However, even in such cases after exhausting the sub-constitutional remedies available, there is no bar to a defeated candidate bringing into question the result of an election, by means of a writ petition. Subject to the above, I am not aware of any restric tions on the right of any person, including a voter, to initiate proceedings in the nature of qua warranto under Article 199 of the Constitution against a person who claims to hold a public office. I am also not aware of any other adequate remedy being made available under the Ordinance to a voter, to call into question the result of an election. Section 29 of the Ordinance of course provides a forum for the removal of a member who incurs a disqualification, but this would obviously refer to disqualifications incurred after he has been declared to be elected. By means of this petition, however, the very candidature of the respondents and his subsequent continuance as such is being questioned, and it is not the case of either the parties that the disquali fication was incurred after the election.
7. On the merits of the case learned counsel for the respondent did not deny that the respondent was a depot-holder. He did not contest the proposition that ,a depot holder was disqualified under Article 10(2) (6)( j of p,p,0, 5 of 1977, from being elected and from being a member a Full Bench of Parliament. The issue in any case stands determined by Court in the case of Sardar Muhammad Jafar Khan Leghari v. of this and learned counsel did not and indeed could not Election Commission (P L D 1978 Lah. 76) before me question the law as declared therein. Learned counsel also conceded that by virtue of clause (f) of section 21 of the Ordinance, a person would be disqualified from being a member of a Local Council, if he was disqualified from being a member of Parliament under any law for the time being in force, as held in Muhammad Khan v. Malik Muhammad Sarfraz (1980 C L C I).
However, learned counsel contended* that clause ( f ) of section 21 of the Ordinance was not applicable to the case of the respondent, and it did not disqualify the respondent, for the reason that is relation to , Local Councils a specific provision had been made in clause (h) of section 21, which alone would apply to cases where a person is sought to be disqualified on the ground that he has an interest in a contract. In order to comprehend the argument the provisions in issue are reproduced :--
S. 21. A person shall be disqualified to be a candidate or a member of a Local Council--
(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 ; ......
(h) if he is under contract for work to be done or goods to be supplied to the local council concerned or has other-wise any pecuniary interest in its affairs.
9. Learned counsel for the respondent relied on the maxim "ex ressio unius, exclusio alterius" which enshrines the well-established principle of interpretation that when a statute mentions one or more things of a particular class, it may be regarded as silently excluding other things of the same class or similar classes not expressly mentioned, and, submitted that therefore, a depot-holder could only be disqualified as a candidate or a member of a Local Council if his case fell within the] mischief of clause (h). I regret I cannot agree with this contention, for as laid down by the Supreme Court in Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (P L D 1975 S C 32)--
"the above rule is not absolute in its application. It is equally well-established principle that in construing a statute the construction which is most agreeable to justice and reason is to be preferred ...(and) if the choice is between the two inter pretations, the narrower of which would fail to achieve the manifest purpose of the legislation, one should lean against a construction which would reduce the legislation to a futility and rather accept the broader construction based on the view that the Legislature would legislate only for the purpose of bringing about effective result."
Clause (f ) is very clear in its import and I have examined it in consider able detail in the case of Muhammad Khan v. Malik Muhammad Sarfraz and before me learned counsel for the respondent did not even try to persuade me to narrow the applicability of clause (f) in the manner suggested by him.
10. Learned counsel next argued that where a statute contained a general as well as a special provision for meeting a particular situation, then the special provision must be applied in preference to the general provision. It was argued that as clause (h) specifically provided for dis qualification on the basis of contracts, clause (f) should not be applied to cases of contract. 1 regret that I cannot agree with the contention of the learned counsel. In the case of State v. 7.ia-ur-Rehman (P L D 1973 S Q 49) the Supreme Court elaborated upon the maxim "generalia specialibus non derogant" in the following terms :-
"It is a well-established rule that we have to gather the intention of the law-maker from the words used by it and if it has in two clauses of the same Article used different words, then it follows that its intention is not the same, particularly, where such a conclusion also appears to be in consonance with reason and justice ......
It is a well-established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, it is the special provisions which first be applied to that particular case or situation instead of the general provisions."
11. Applying the above principles it can safely be said that clause (h) of section 21 is restricted in its application only to contracts for work to be done or goods to be supplied to the Local Council concerned and that it does not derogate from the general applicability of clause (f) of section 21 which will govern other types of contract.
12. Learned counsel further argued that where two interpretations are possible one that imposes the disqualification should not easily be infered, and effort should be made to maintain the membership of 4 person elected by the voters. He relied upon a Single Bench judgment of this Court in the case of Mian Muhammad Saeed v. Central Co operative Bank (P L D 1973 Lah. 421) and contended that Courts will not easily infer forfeiture of valuable rights unless the words clearly indicate so, and that if the words are capable of two interpretations that favouring the rights of the citizen should be accepted. He also referred to the judg ment of the Supreme Court in the case of Brig. (Reid.) F. B. Ali and another v. The State (P L D 1975 S C 506) to contend that the language of a penal statute has to be strictly construed. Whilst these propositions of law are too well known, yet they are not attracted in the circumstances of this case. 1t is not the case of parties that clause (it) of section 1 is capable of two interpretations. Learned counsel had argued that2with regard to a member of a Local Council, any disqualification in relation to a contract would be governed only by clause (h), and clause (f ) would not be applicable. However, 1 regret my inability to agree with the learned counsel in this regard. Clause (h) is restricted in its scope as indicated earlier to contracts for work to be done or goods to be supplied to the Local Council concerned. Where a person is sought to be disqualified on the basis of a contract with the local council concerned he will only be governed by clause (h) and not by clause (f ). However, if he is sought to be disqualified on the basis of a contract other than with a local council the provision of clause ( f ) would be attracted.
13. In the circumstances, it having been conceded that the respon dent is a depot-holder, he stands disqualified by virtue of clause ( f ) of section 21 of the Ordinance read with Article 10(2)(b)(8) of President's Post Proclamation Order 5 of 1977 from being a member of the Local Council of the Union Council, Kariala, Tehsil Chakwal, District Jhelum. The petition is accepted and it is so declared, There will be no order as to costs.
S, Q' Petition accepted.
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