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Election Petition No. 2 of 1985, decided on 3rd September, 1985.

S. 5(iv) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.24 Election for Legislative Assembly Chairman, District Council whether hit by disqualification Effect of amendment Amendments introduced in S. 5(iv) of Election Ordinance, 1970, whereby person holding office of Chairman, District Council was no more disqualified to become member of Legislative Assembly, returned candidate who had been holding office of Chairman, District Council within two years of his nomination for election of member Legislative Assembly, held, was not hit by any disqualification.

Mst. Barkat Jan v. Zaro Khan 1984 C L C 1300; Muhammad Sadiq Khan v. Ahmad Khan P L D 1966 Jour. 128; Nazir Hussain Shah v. Election Controlling Authority (Collector) P L D 1962 Lah. 14; Munir Ahmad v. Returning Officer P L D 1966 Kar. 1 and Nawabzada Nasrullah Khan v. Ghulam Mustafa Khar P L D 1977 Jour. 299 ref.

This election petition by Muhammad Sayab Khalid son of Sardar Muhammad Ayub Khan of village Pachhiot, Tehsil Rawalakot, Poonch arises out of the following facts:

2. The petitioner and 5 others including Sardar Roshan Khan son of Sardar Rahim Khan resident of village Tain, Teshil Rawalakot were contesting candidates in election to Azad Jammu and Kashmir Legislative Assembly from LA XX Poonch VIII constituency. By Notification No. 134/85, dated 25th May, 1985 issued by the Chief Election Commissioner, Azad Jammu and Kashmir, respondent No. 1 Sardar Roshan Khan aforesaid was notified as returned candidate. The petitioner has by the election petition called into question the election of respondent No.l on the ground that respondent No.l having been Chairman of District Council, Poonch till 14 10 1983 and as a period of two years having not elapsed since 14 10 1983 when nomination papers were filed by him (respondent No.l) to the AJ&K Legislative Assembly, he was as such, disqualified to be nominated to the" Azad Jammu and Kashmir Assembly and to remain member of the said Assembly. Reference is made to Chapter III Section 5(iv) and (v) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970:

(iv) 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

(v) 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.

3. On 24 7 1985 when the petitioner and the respondent both were in attendance, the respondent requested for adjournment with a view to engage a counsel. The request was granted. On the second day of hearing i.e. 17 8 1 985 the respondent though in attendance, his counsel was not present, therefore, the case was adjourned to 18th. It appears that the respondent is keen to prolong the matter on one or other pretext.

4. It appears that the petitioner did not agitate the point raised before this tribunal which has been categorically mentioned in the written statement filed on 18 8 1985 by the respondent that this question was not raised before the Returning Officer and it has not been controverted by the petitioner. According to the petitioner, the office of Chairman of the District Council is an office of profit under the AJ&K Interim Constitution Act, 1974, therefore, the holder of this office would be a person in the service of Azad Jammu and Kashmir, therefore, he is disqualified to be a member of the Assembly.

5. The point for decision is whether the Chairman of a District Council comes within the purview of a Government servant. The petitioner in support of his averments relied on 1984 C L C 1300 Mst. Barkat Jan v. Zaro Khan. In this case the respondent a retired Naik in the Army, had filed his nomination papers for membership of the Union Council. His nomination papers were rejected on the ground that he had retired from Pakistan Army on 13th February, 1982 as a Naik and two years had not elapsed since then (till the date of filing the nomination papers). The distinction is self evident. In the cited case there was no controversy about Zaro Khan Naik as having been a Government servant. The point for determination was the actual date of retirement. The petitioner also relired on the case reported in Muhammad Sadiq Khan v. Ahmad Khan P L D 1966 Journal 128. In that case too Government service was not a controversial point. In fact the petitioner was in the service of Government. Next case in support cited by the petitioner is the case of Nazir Hussain Shah v. Election Controlling Authority (Collector) P L D 1962 Lah. 14. The petitioner in that case contested election of the Union Council but remained unsuccessful. Later, after the result of the election had been declared, the District Magistrate, Multan appointed him as a members of that Union Council. Subsequent to it,"a notice was served on the petitioner by the Collector, Multan, to show cause why his name should not be removed from the membership because having been unsuccessful in the election he could not be appointed as a member o the Union Council. The notice o removal o the petitioner from "the membership o the Union council was served on the petitioner by the Collector who was successor to the Collector who had appointed the petitioner as a members. The underlining above makes clear the distinction. Another case cited by the petitioner is reported in Munir Ahmad v. Returning Officer P L D 1966 Kar. 1. The facts of the cited case clearly make the distinction in the light of section 24 of Azad Jammu and Kashmir Interim Constitution Act 1972 which reads as under:

(a) -----------------------------------------------

(b) ----------------------------------------------

(c) ----------------------------------------------

(2) A person shall be disqualified from being so elected if

(a) --------------------------------------------

(b) -------------------------------------------

(c) ------------------------------------------

(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.

(1) An office which is not a whole time office remunerated either by salary or by fee.

(2)

(3) The office of the Chairman of the Union Council, Union Committee and of the Vice Chairman of the Municipal Committee and the District Council.

(4) ----------------------

(5) ---------------------

6. Subsection (iv) of section 5 of the Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 as amended reads as

under:

"(iv) 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 of Chairman, District Council or Municipal Committee or as specified in the Second Schedule of the Interim Constitution Act, 1974."

7. The actual position is that at the time when the AJ&K Interim Constitution Act, 1974 remained in force, the Chairman of the District Council used to be the Deputy Commissioner, as such the petitioner contends that the omission of the Chairman of the District Council from the second schedule is deliberate and, therefore, a person who has been a Chairman of a District Council is hit by the disqualification contained in section 24(2)(d). The petitioner in support of his case also cited Nawabzada Nasrullah Khan v. Ghulam Mustafa Khar P L D 1977 Journal 299. With respect this case proceeds entirely on different basis. The petitioner during his arguments pointed out that since the respondent has been a Chairman, therefore, the amendment under the Constitution Act of 1974 does not protect him. The Act speaks about a person who "is" a Government servant is disabled to be nominated. We cannot import different meaning for the one clearly meant by the Legislature.

8. I have carefully heard the petitioner at length and what ultimately he arrived at is to hold that the amendment is not in accordance with the spirit of Constitution Act, 1974. This contention cannot be stretched so far as to attract the above dictum. In the case under consideration, we are concerned only, whether the respondent is hit by the disqualification contained in the Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 and the Constitution Act of 1974. The relevant law has simply removed the ambiguity as referred to above and the omission of Chairman has been specifically introduced in the amendments reproduced in paragraph No.6 of this judgment.

9. In view of the observations in the beginning of this judgment, I decline to burden the petitioner with costs. This petition is dismissed.

H . B . T . /25/ El . T . Election petition dismissed.

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