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Civil Appeal No. 59 of 1984, decided on 3rd July, 1985.

(Against the judgment and order of Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 6th/7th December, 1983 in Writ Petition No. 427 of 1983).

‑‑‑Art. 185(3)‑‑Cantonments (Election and Election Petitions) Rules, 1979, r.12(a)‑‑Leave to appeal granted against judgment of Lahore High Court whereby relief was refused to petitioner against rejection of his nomination papers though all grounds on which his nomination papers were rejected were found to be without merit and were set aside.

‑‑‑S. 21(1)(h), proviso (2) & (22)‑‑Cantonments Act (II of 1924), S.15‑B‑‑Disqualification‑‑Persons who before commencement of Punjab Local Government (Second Amendment) Ordinance, 1983, had been members of Cantonment Boards, held, would not stand excluded from disqualification provided by cl. (h) of subsection (1) of S.21, Punjab Local Government Ordinance, 1979‑‑Section 21(1)(h), proviso (2). has to be read as integral part of cl. (h) at least to extent that one has to determine who stands disqualified by that clause‑‑Petitioner who was previously a member of Cantonment Board not falling within category of persons mentioned in first proviso, who stood excluded from application of cl. (h) and said provision standing adopted by reference into Cantonments Act, 1924, petitioner would stand disqualified for being elected as a member of Cantonment Board.

‑‑‑S. 21‑‑Cantonments Act (II of 1924), S. 15‑B‑‑DiFqualification‑ Misprint of name in electoral roll when other particulars were given correct‑‑Misprint, held, a clerical or printing error and as such a mistake could not be made basis for disqualifying a person when he had done all that was required of him to get mistake corrected.

‑‑‑S. 21‑‑Cantonments Act (II of 1924), S.15‑B‑‑Disqualification‑ Rejection of nomination papers‑‑Appellant's contractual relationship with Cantonment Board only temporary and were limited to a Zakat and Ushar function when he supplied tent and Shamianas and thereafter no further contractual or pecuniary relationships developed or shown to exist‑‑No such relationships were either prevalent on date when nomination papers of appellant were submitted‑‑Rejection of nomination papers of appellant on this ground, held, was illegal.

Rana Muhammad Anwar, Senior Advocate Supreme Court with Imtiaz M. Khan, Advocate‑on‑Record for Appellant.

Bashir Ahmad Ansari and Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Respondents Nos. 4, 6 and 7 in person.

Date of hearing: 3rd July, 1985.

Leave to appeal was granted to Sheikh Abdul Hameed, a candidate for election to the Cantonment Board, Rawalpindi, against the judgment of the Lahore High Court, Rawalpindi Bench, dated 7‑12‑1983 whereby relief was refused to him against the rejection of his nomination paper though all the grounds on which his nomination paper was rejected were found to be without merit and were set aside. The caveator was also allowed to press his claim in respect of the denial of the relief to the appellant on the ground that the reasons for rejection of his nomination paper were sound and could not be set aside by the High Court while exercising its constitutional jurisdiction.

The appellant had earlier also successfully contested election to the Cantonment Board from Ward No. 3. He had also functioned for some time as its Vice‑President till he was removed from that office but continued to remain a member of the Board for the full term. In the elections of the Board that took place on 26th of October, 1983, he was again a candidate from the same Ward but this time his nomination paper was rejected noting down the objections as hereunder:‑‑

"Objections raised as under‑‑

(1) Name not included in Electoral Rolls 'withheld'.

(2) Office‑bearer of defunct‑ P.P.P. 'withheld'.

(3) Misconduct while member of elected body 'withheld'.

Rejected."

The record shows that the expression 'withheld' is a mistake and the correct word to be used was 'upheld'.

The appellant filed an appeal against the rejection of his nomination paper under rule 12(a) of the Cantonments (Elections and Election Petitions) Rules, 1979 (hereinafter referred to as the Rule). The President of the Cantonment Board on 13th of October, 1983 passed the following order‑‑

"Appeal rejected on the basis of having pecuniary interests in the Board and its affairs."

Against such a rejection the appellant as well as one of the contesting candidates (Bashir Ahmad, respondent No. 3) filed separate constitutional petitions with regard to it. Both the petitions were allowed and the matter was remanded to the President, Cantonment Board for decision of the appeal afresh. He did so by an order, dated 23‑10‑1983 holding as follows‑‑

"The points on which the nomination papers of Sh. Abdul Hamid were rejected by the Returning Officer are upheld as explained below in seriatim:‑‑

(1) The name of Sh. Abdul Hamid does not appear in the Electoral Roll of Ward No. 3. The contention of the learned counsel of Sh. Abdul Hamid that his name appears at serial 1583 of the roll is incorrect as the entry against the above‑mentioned number clearly reads Sh. Abdul Majid and not Sh. Abdul Hamid.

(2) From the documents placed on record by the objector Bashir Ahmad, I am satisfied that Sh. Abdul Hamid is a member of defunct‑Peoples Party and has associations with it. He, therefore, falls within the purview of Article 10(2) (7‑a) of the House of Parliament and Provincial Assemblies (Elections) Order, 1977 read with section 3‑B of subsection of the Political Parties Act, 1962.

(3) From the evidence on record it is apparent that the petitioner Sh. Abdul Hamid indulged in matters of pecuniary benefits to him by misusing his office, while holding the office of the Vice President, Cantonment Board and thereby he is guilty of the offence falling within the purview of misconduct."

It was this order of the President, Cantonment Board which was challenged before the High Court and by the impugned judgment all the grounds were found in favour of the appellant and the order of rejection of the nomination paper on the grounds disclosed by the Presiding Officer and the President were found to be without; merit. Nevertheless, the constitutional petition was dismissed on an altogether new ground of fact. It was held by the High Court that on the basis of section 15‑B(2)(g) introduced by Ordinance, of 1979 by Cantonments (Amendment) Ordinance, 1983 the disqualification contained in section 21(1)(h) of the Punjab Local Government Ordinance, 1979 was made applicable to the Cantonments Elections that the appellant suffered from this disqualification and was ineligible to be elected. This specific disqualification was introduced in the Punjab Local Government Ordinance, 1979 by an Amending Ordinance No. XV of 1983 enforced on 16th of August, 1983 whereby if any candidate was at any time on or after the 20th December, 1971 a member of any Executive Committee by whatever name called or an office‑bearer of a political party at local, district divisional, provincial or national level, he was disqualified to be elected as a member. The appellant in the circumstances though successful on merits was denied the relief sought for by him against the rejection of his nomination paper. In the meantime and while his constitutional petition was pending, he had contested the election, secured the highest number of votes but for such a finding and decision would have been declared as a member of the Cantonment Board. In the circumstances, leave to appeal was granted to the appellant and the respondent was also permitted to defend the impugned order of the High Court on the grounds which had prevailed with the Returning Officer and the President of the Cantonment Board for rejecting the nomination paper of the appellant.

As pending this appeal disqualification of the appellant was not suspended nor were the re‑elections stayed, the respondent No. 3 (Bashir Ahmad) had emerged as successful in the re‑election after excluding the appellant.

The learned counsel for the appellant Raja Muhammad Anwar, Advocate, contended that the High Court in denying relief to the appellant has committed a jurisdictional error as it adopted as the basis of its judgment the ground which had not been taken into consideration by any of the authorities charged with the statutory duty of scrutinising the nomination paper of the appellant. After finding that all the three grounds made the basis for rejecting the nomination papers of the appellant were without merit, the High Court should have granted relief to the appellant. The raising suo motu of a new ground and making it the basis of the decision when that ground involved the examination and adjudication of a controverted question of fact should not have taken place at that stage and by the High Court. He relied for this on the decisions of this Court in Miss Asma Jilani v. The Government of the Punjab P L D 1972 S C 139 and Rahim Shah v. The Chief Election Commissioner of Pakistan P L D 1973 S C 24.

The other submission of the learned counsel for the appellant is that the law made applicable by reference and adoption or incorporation has to be applied mutatis mutandis. In giving full effect to clause (h) of section 21, subsection (1) of Punjab Local Government Ordinance, its proviso should also have been taken into consideration and given due effect to after making proper adjustment. As the appellant had also remained a member of the Cantonment Board the first proviso to that clause could be availed of by him.

Finally, it was contended by the learned counsel for the appellant that the question involved, in any case, was one of fact and a controversy over it could more appropriately be left to be decided by an election petition rather than in such a summary fashion without settling an issue, on the basis of inadmissible evidence, without opportunity to contest the issue. Such a finding of fact should not have been recorded in the constitutional jurisdiction and the appellant could not be held disentitled to the fruits of the litigation, on the basis of such a finding.

The learned counsel representing the respondent Mr. Bashir Ahmad Ansari argued that the decisions of the Returning Officer and the President, Cantonment Board were sound, violative of no principle governing the exercise of their exclusive jurisdiction and could not be set aside by the High Court in constitutional jurisdiction. He also canvassed, as upheld by the High Court, the literal application of clause (h) of section 21(1) of Punjab Local Government Ordinance, 1979 for enforcing disqualification on the appellant.

In interpreting incorporation by description the High Court expressed doubts about the applicability of the provisos attaching to the disqualification clause and denied benefit of it to the appellant to overcome the disqualification adopting its literal and not the textual meaning. The interpretation canvassed by the appellant was noted as follows‑‑

"As regards the submission made by the learned counsel for the petitioner that by virtue of the first proviso to clause (h) of subsection (1) of section 21 of 1979 Ordinance, the petitioner, who was, immediately before 16‑8‑1983, a member of the Cantonment Board, Rawalpindi, stands excluded from the disqualification of clause (h), we are afraid such a result does not follow. Under section 15‑B (2)(g) off the Cantonments Act, 1924, a person stands disqualified for being elected as, and for being, a member of a Cantonment Board, if he is for the time being disqualified for the membership of an elective body under any law for the time being in force. What is to be borne in mind is that the whole clause (h) of subsection (1) of section 21 of the 1979 Ordinance has not been lifted and totally grafted into subsection (2) of section 15‑B of the Cantonments Act, 1924. Had such grafting been done, the words 'Punjab Local Government (Second Amendment) Ordinance, 1983' and 'or of any local council under this Ordinance' would have been amended to read 'the Cantonments (Amendment) Ordinance, 1983' and 'or of any Cantonments Board under this Act' and the amendments would have been effected by the Federal Government, as legislation with regard to Cantonment Boards is the exclusive subject of the Federal Government. However, the Federal Government did not re‑enact the provision mutatis mutandis verbatim, but adopted the same by 'descriptive reference'. What .is adopted is every provision of any law which is effective for the time being in force and under which any person for the time being stands disqualified for the membership of an elective body. It cannot be denied that the Punjab Local Government Ordinance, 1979, is a law relating to elective bodies and that section 21 of the said Ordinance is one which relates to various disqualifications which disentitle a person to be a candidate or a member of a local council and since the provision by which the member is disqualified has to be adopted by reference, the question arises as to whether the first and the second provisos to clause (h) of subsection (1) of section 21 of the 1979 Ordinance stand drawn in."

The High Court recorded the finding on this legal issue in the following words‑‑

"Since the first proviso seeks to exclude certain types of persons described therein from the category of those that stand disqualified by clause (h), the said proviso becomes an integral part of that clause, at least to the extent that one has to determine who 'stands disqualified' by that clause. Reading the provision in this light, it becomes clear that not all persons covered by clause (h) stand disqualified, because some stand excluded by the first proviso. Since the adopting law only desires to adopt such provision from any law under which a person 'stands disqualified' for the membership of an elective body, the first proviso would have to be read as an integral part of the clause, when dealing with such cases and when one reads the same, it is clear that persons not covered by the first proviso, but otherwise falling within the preview of clause (h), are alone drawn in by reference. The petitioner, who was previously a member of the Cantonment Board, Rawalpindi, does not fall within the category of person mentioned in the first proviso; who stand excluded from the application, of clause (h). He is a person who thus stands disqualified under this clause. It is not possible to read the words 'or of any local council under this Ordinance' as 'or of any Cantonment Board under the Cantonments Act'. In the first instance, the Provincial Government did not consider that members of Cantonment Boards were entitled to the exclusion. Members of the Federal Cabinet and the Federal Council were considered worthy of the exclusion, but not members of the Cantonment Boards. It shows that they were expressly excluded. Second, the words 'local council' and 'this Ordinance' cannot mutatis mutandis be read for 'Cantonment Board' and 'this Act' respectively. This construction would not only be contrary to the intent of the adopting statute, but also violative of the principle of good legislation. Therefore, even applying the first proviso to clause (h) the petitioner does not stand excluded from the disqualification provided by that clause. This Court has already held in Akbar Din v. Returning Officer (Writ Petition No. 391 of 1983) decided by the Rawalpindi Bench on 23‑10‑1983), that persons, who before the commencement of the Punjab Local Government (Second Amendment) Ordinance, 1983, have been members of Cantonment Boards, do not stand excluded from the disqualification provided by clause (h) of subsection (1) of section 21 of the 1979 Ordinance. As regards the question whether the second proviso should also be treated as having been adopted, the position is not free from difficulty. Where special permission is granted by the Provincial Government to contest a local council seat under this proviso, such a person stands automatically excluded from the purview of clause (h), but then he would not stand for the Cantonment Board seat. If he attempted to do, it would be a fraud on the Federal Government, for such a permission was not granted by it and such an intent could not be treated as being incorporated. Again, if the adoption is to be treated as granting the Federal Government the power to give such permission, the adoption could be treated as violating the legislative intent. The answer is not far to seek. First, the word 'Government' in the second proviso relates to the Provincial Government and not the Federal Government. Second, the Federal Government alone has the exclusive power to legislate in respect of Local Government in the Cantonments. Third, by adopting this meaning, it would be compelling the Federal Government to act there under to grant exemptions, which it may not want to do. Fourth and last, such an inference could be treated as contrary to the intent of the adopting statute. For all these reasons we feel that the second proviso does not stand drawn in by the adopting statute. For the present, to sum up the matter, we would submit that even if the first proviso to clause (h) of subsection (1) of section 21 of the 1979 Ordinance is taken into consideration, the petitioner does not stand excluded by the said proviso, that he falls within the disqualification mentioned in clause (h) and the said provision standing adopted by reference into the Cantonments Act, 1924, the petitioner stands disqualified for being elected as a member of the Cantonment Board."

In the case before us we have, as has been observed by the High Court an instance of incorporation by description, the sum total, the effect or the result of the law referred to has been incorporated and not the exact words or the text of the law. Section 15‑B(2)(g) of the Cantonments Act, 1924 reads as under‑‑

"15B.‑‑(1) xxx xxx xxx

(2) A person shall be disqualified for being elected as, and for being a member of, a Board if he‑‑

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) xxx xxx xxx

(d) xxx xxx xxx

(e) xxx xxx xxx

(f) xxx xxx xxx

(g) is for the time being disqualified for the membership of an elective body under any law for the time being in force."

The difficulties encountered in integrating and interpreting an incorporated provision of law have been spelt out in Mayor & Co. of Portsmouth v. Smith (1885) 10 AC 364 at page 371 in the following words‑‑

"Where a single section of an Act of Parliament is introduced into another Act, I think it must be read in the sense which it bore in the original Act from which it is taken, and that consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated in the new Act. I do not mean that if there was in the original Act a section not incorporated, which came by way of a proviso or exception on that which is incorporated, that should be referred to. But all others, including the interpretation clause, if there be one, may be referred to. It is a dangerous mode of draftsmanship to incorporate a section from a former Act; for unless the draftsman has a much clearer recollection of the whole of the former Act than can always be expected, there is great risk that something may be expressed which was not intended."

In another case Knill v. Towse (1889) 24 QSD 186 it was remarked that‑‑

"Sometimes whole Acts of Parliament, sometimes groups of clauses of Acts of Parliament, entirely or partially, sometimes portions of clauses, are incorporated into later Acts, so that the interpreter has to keep under his eye, or, if he can, bear in his mind, large masses of bygone and not always consistent legislation in order to gather the meaning of recent legislation. There is very often the further provision that these earlier statutes are incorporated only so far as they are not inconsistent with the statutes with which they are incorporated; so that you have first to ascertain the meaning of a statute by reference to other statutes, and then to ascertain whether the earlier Acts qualify only, or absolutely contradict, the later ones, a task sometimes of great difficulty, always of great labour‑‑a difficulty and labour, generally speaking, wholly unnecessary."

The High Court, in our opinion, rightly held that proviso in this context had to be considered as "an integral part of that clause, at least to the extent that one has to determine who stands disqualified by that clause". Further, the High Court was correct in taking the view that adoption was by "descriptive reference" and not by re‑enacting by reference of that provision. The High Court then by engrafting "local council" and "this Ordinance" in the Cantonment Act and in making them immutable departed, in our view and with utmost respect, from the rule of interpretation earlier expounded by itself. The sum and substance of this disqualification clause was that it was not to apply if a person had been in the immediate past a member of that very body to the membership of which disqualification clause was sought to be invoked. In that general sense if the disqualification law is applied to the appellant he remains unaffected because he had successfully completed full term of membership of the Cantonment Board in the immediately preceding years, the very same body to the membership of which this disqualification clause was sought to be invoked. The disqualification excepted by such a Proviso, both adopted by descriptive reference, and so understood and applied in this general sense, embody an intelligible principle of public administration. Hence it follows that the appellant did not suffer the disqualification on that. account.

As regards the non‑appearance of the name of the appellant in the electoral roll the . following entries reflect the electoral roll‑‑

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The appellant claimed that his name 'Abdul Hamid' was misprinted as 'Abdul Majid' at 1583, that other particulars were his and that earlier he had got it formally corrected but the misprint had again crept in. All this on the factual plane was found to be correct. It is an obvious clerical or printing error and such a mistake could not be made the basis for disqualifying the appellant when he had done all, that was required of him to get it corrected.

The alleged misconduct related to his position as Member/Vice- President of the Cantonment Board for the earlier preceding term. He lost the position of Vice‑President on account of vote of no‑confidence but continued as member thereof. What was pleaded as disqualification was "immorality" of his conduct as member in entering into a contract of rendering service (supply of tent and Shamianas) and his pecuniary interest arising there from. The first ground was satisfactorily dealt with by the High Court by observing as follows‑‑

"Learned counsel for the respondents admitted during arguments that though a number of complaints were received by the Cantonment Board against the petitioner and his explanation was called for in respect of some, but no charge was framed, inquiry conducted or any decision was given against him. There is no unequivocal finding against him."

The second ground was also rejected for the following reason‑‑

"The contractual relationship between the petitioner and the Board was temporary and limited to the Zakat and Usher function of 1980, which the President of Pakistan attended. Thereafter, no further contractual or pecuniary relationship developed or has been shown to exist between the petitioner and the Cantonment Board. In any case, none was prevailing in 1983 or on the date when the nomination papers were submitted. In these circumstances, the nomination papers were illegally rejected on this ground."

The factual and the legal position with regard to these two grounds has not been shown to be any different than what the High Court indicated. Therefore, the conclusions are unexceptionable.

As a result the appeal is allowed with costs, the judgment of the High Court is set aside as also the impugned orders of the Returning Officer and the appellate authority regarding the disqualification of the appellant.

M. Y. H. Appeal allowed.

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