P L D 1954 Sind 38 (PLP)

LARI, J.‑The plaintiff, H. M. Habibullah, was a candidate for election to Karachi Municipal Corporation from Ward No.

21. His case is that polling took place actually on 24th April 1953 as notified by the relevant authority, votes were cast and at the end of polling, boxes were sealed and what remained was counting of votes cast and declaration of result in accordance therewith, but the Municipal Commissioner, Karachi Municipal Corporation issued a notice on 27th April, 1953, by which he cancelled the polling already held on 24th April, 1953, and ordered fresh polling on 29th April, 1953. The suit giving rise to the application under consideration was filed on the same date alleging that the action of the Returning Officer mentioned above was beyond his jurisdiction, illegal and ultra vices and prayed that the defendant b3 restrained by a permanent injunction from holding re‑polling. The plaint was accompanied by an application under Order 39 Rule 1 C. P. C. requesting that temporary injunction restraining the defendant from holding re‑polling on 29th April. 1953, be granted. The application came up before my brother Mr. Justice Inamullah who ordered issue of ad interim injunction on 28th April, 1953. The defendant appeared in Court in response to notice and has prayed that the ad interim injunction be vacated. The defendants' case as disclosed in the counter affidavit is that due to unforeseen circumstances the polling in the Ward was restricted and prevented and directions were then given with the approval of the Provincial Government for polling on 29th April, 1953 that the Municipal Commissioner had ample authority to act in the manner in which he did and was entitled to hold re‑polling, that the ballot boxes used in the Ward in the polling of 26th April, 1953 were unsealed, emptied and the ballot papers thereof were destroyed on the morning of 27th April, and as a result of destruction of ballot papers the polling on 24th April, had become infructuous and a fresh polling was inevitable. The counter affidavit further took up certain legal pleas which will be dealt with at their proper place. During the course of hearing, the Chief Commissioner, Mr. Abu Talib Naqvi filed an affidavit on 7th July, 1953, in which he affirmed that the notice issued on 27th April, 1953, by the Municipal Commissioner ordering re‑polling was issued under his express directions, that the original document authorising the Municipal Commissioner to hold re‑polling was signed by him but by mistake the date of 27th April, 1953, did not appear in the notification, that was published in the Gazette of 4th May, 1953. The counsel for the plaintiff contested this position and alleged that the order of the Chief Commissioner was not passed at all on 27th April, 1953, but, in fact, came into existence on 4th May, 1953. There is no reason to disbelieve the affidavit of the Chief Commissioner and I have proceeded on the assumption that the order of re‑polling was issued by the Municipal Commis sioner in pursuance of the directions given by the Chief Commissioner. One Malik Bagh Ali applied to be made a party to this suit and in as much as he was also a candidate from Ward No. 21, his application was allowed and added as a defendant. Malik Bagh Ali also opposed application for injunction. I have heard the counsel for the parties and propose to deal with their contentions in some detail. The first contention of the learned counsel appearing on behalf of the defendants was that the Chief Commissioner who exercise the powers of the Provincial Government had full authority to cancel the polling held on 29th April, 1953 and order re‑polling. Reliance is placed on section 279 (a) sub‑clause 2 (e). I may quote the entire section to enable a proper appreciation of the effect of the sub‑clause relied upon 279‑A. (1) The Provincial Government may at any time, if satisfied that there is a substantial alteration is the population of the City, direct the Chief Officer to report to it within such period as the Provincial Government may specify :‑ (a) the total adult population of the city ; (b) the number of adult members of the various communities. In this subsection 'adult' means a person who has completed 21 years of age. (2) Notwithstanding anything contained in this Act, the Provincial Government may, if in its opinion the report received under subsection (1) so justifies, by order published in the Official Gazette :‑ (a) dissolve the Corporation from such date as may be specified in the order and order that general elections shall take place in accordance with the provisions of the Act so far as they may be applicable ; (b) alter the composition of the Corporation and subject to reservation of any seats for small minorities redistribute seats among the communities on the basis of adult population ; (c) direct the Chief Officer to prepare a fresh municipal election roll in accordance with the provisions of Chapters II and III of Schedule I but subject to such modifications thereof as the Provincial Government may direct: Provided that no person shall be enrolled in the municipal election roll as a voter of any ward who has not for a period of not less than one year commencing from such date as the Provincial Government may from time to time appoint resided in the city. (d) vary the limits of the existing wards or omit any ward or add any new ward and re‑allocate seats among the wards. (e) Authorise the doing of anything which appears to be necessary for the reconstitution for the Corporation. (3) For the purpose of carrying out the direction of the Provincial Government under subsection (1) the Chief Officer and the staff working under him shall possess the powers of a Census Officer under the Indian Census Act, 1939. It is argued that because of sub‑clause 2 (e) the Provincial Government could do anything that appeared to her to be necessary for the re‑constitution of the Corporation and as the polling held on 29th April had become ineffective and fresh polling was necessary to reconstitute the Corporation, the Provincial Government had authority to do what it ordered. This argument loses sight of sub‑clause 2 (a) which says: "that general elections shall take place in accordance with the provisions of the Act so far as they may be applicable." It means that this Court has to see whether cancellation of polling that had already taken place and holding of re‑polling is premissible or not. This argument further ignores the effect of sub‑clause (1). The powers that are given to the Provincial Government under sub‑clause 2 have to be read in conjunction with sub‑clause 1 and subject to other provisions of the Act. Section 17 of the City of Karachi Municipal Act, 1933, provides ‑ for election petitions to be heard and disposed of by the judge of the Karachi Small Causes Court. Chapter IV of Schedule I which is deemed to be a part of the City of Karachi Municipal Act because of provision in section 231 of the Act provides that after the close of the poll, the Polling Officer shall forthwith forward the said boxes with their seals intact together with all the counterfoils of voting papers in and unused voting papers in his possession to the Chief Officer or to such officer as the Chief Officer appoints in this behalf. The Chief Officer shall with the assistance of such scrutineers as may be appointed by the Corporation count the votes and shall, as soon as may be, declare the results of the poll and the total number of valid votes given to each candidate .................. The said lists and the voting papers on which they are based shall be kept in the office of the Chief Officer for three months unless called for in the meantime by the judge of the Karachi Small Causes Court for the purpose of any appeal. The scheme of the Act therefore is that a date for polling is fixed, votes are cast on that date and once polling time comes to a close votes cast are to be counted and the result has to be declared according to the counting. After the result are declared it is open to any person aggrieved to file election petition which shall be determined by the judge of the Small Causes Court. There is obviously no scope for cancellation of polling by the Polling Officer or the Provincial Government at all. Such a provision would be repugnant to all conceptions of election free from executive interference. There was a time in England when the Crown used to determine the validity of elections. The House of Commons protested and gradually wrested this power from the Crown and the. House of Commons ultimately alone had the power to determine whether an election was validly held or not. Subsequently, the House of Commons delegated these powers of theirs to Election Tribunals and now in all free and democratic countries elections are determined by Election Tribunals which consists of Judicial Officers. If the executive were given the power to cancel polling ‑that had already taken place, it will nullify the provisions which made judiciary final arbiter in the matter of elections. If any Act gives such a power to the executive, the Court will have no say, but where no such pro vision is made and everything depends on interpretation of various clauses, this Court has to take into consideration the historical back ground of laws as to elections. There is no rule anywhere that a polling which had actually taken place can be cancelled. Rules, in force in some places provide for adjournment of a poll to another date or extension of poll, but nowhere for cancellation of poll that has already taken place. In this very case, if on account of mis‑management or lack of arrangements all the voters had not an opportunity to cast votes, the Provincial Government, could have extended the time or adjourned the poll to another date. But adjournment of poll is one thing and scraping of polling already taken place is another. The Provincial Government may have the power to adjourn a poll or extend the hours of polling but to my mind the Provincial Government has no power to annul what has already taken place. My attention was drawn to the general principle mentioned in the Halsbury's Laws of England, Vol. 31 at p. 476 which is a follows: "Where any statute passed since 1889 confers a power or imposes a duty, then, unless a contrary intention appears, the power may be exercised and the duty performed from time to time as occasion requires". The rule is unexceptional in its character. Maxwell in his celebrated book "Interpretation of Statutes" at p. 360 says :‑ "Where an Act confers a jurisdiction it impliedly also grants the power of doing of all such Acts or employing such means as are essentially necessary to its execution". The words "essentially necessary to its execution" have to be borne in mind while applying the rule. The application of the rule was discussed by their Lordships of the Orissa High Court in a case Gurendra Mohan Patnaik v. Goal Chandra Patnaik and others reported in (A I R 1952 Orissa at p. 359.) and I may quote the following from the observations of one of the judges "The principle of law that should be applied is that if the law enables something to be done it gives the power at the same time to do every thing that is indispensable for the purpose of carrying out the object in view. That power subsists until the purpose is accomplished. Ubi aliquid conseediture, con cediture et id sine quo rex ipsa esse non potent, when anything is granted, that also is granted without which the thing granted cannot exist". If a polling is not totally effective and it can be effective only when all the voters or considerable number of them are afforded opportunity to cast votes, the obvious remedy is to grant extension of time and under some other circumstances it may be necessary even to adjourn the poll to some other date but I cannot see how cancellation of the votes already cast was "indispensable" for the purposes of holding election. I am in complete agreement with the rule mentioned in the above quoted authorities but the criterion is whether an act done is "indispensable" for the purposes of carrying, out the duty or not. To my mind under no circum stances cancellation of votes already cast is absolutely necessary for the purpose of an effective polling. In this case it was alleged that votes were cast, boxes were sealed and they were taken for the purposes of counting. The Municipal Commissioner did not deny these allegations but simply alleged that election had been frustrated and prevented but at the same time admitted that ballot boxes were unsealed and ballot papers were destroyed. This means that polling did take place though may be on a limited scale. It was very easy for the Municipal Corporation or the Provincial Government to adjourn the polling to any other date. There was no sense and there was no necessity for cancelling the poll that had already taken place. My attention was invited to the Poona City case reported at p. 77 of Indian Election Petitions Vol.

3. In that what bad happened was that one of the candidates died before the commencement of the polling and the polling was countermanded and fresh date fixed. The polling was to commence at 8‑00 a.m. The candidate died before 8‑00 a.m. and, therefore, the Returning Officer ordered that no polling would take place that day. There is a rule to the effect that if a candidate dies before the commencement of the poll contemplated polling should be countermanded. The case is no authority for the proposition that polling that bad already taken place would be cancelled. According to the rule mentioned in the Poona City case if a candidate dies after the commencement of the poll the poll could not be counter‑manded at all and this supports the contention on behalf of the plaintiff that once polling had begun it cannot be annulled. Of course, the polling may be adjourned or it may be extended but the votes cast cannot possibly be nullified. To hold otherwise would be to make the result of elections depend on the sweet will of the executive, a position repugnant to all democratic conceptions of free vote. It was next contended on behalf of the defendants that the suit was barred because of section 17 of the City of Karachi Municipal Act which provides that :‑ "If the order of Chief Officer as to the validity of the nomination of any candidate for election or as to the qualification of any person declared to be elected is disputed, or if the validity of any election is questioned by reason of material irregularity in the election proceedings, bribery, corruption, personation, treating, undue influence or any other thing materially affecting the result of the election, any person whose name is entered in the register of electors for the ward or the community concerned may, at any time within ten days after the result of the election has been declared, apply to the judge of the Karachi Small Causes Court for an adjudication in the matter". It is argued that this section impliedly bars the jurisdiction of the Civil Court to entertain the present suit. It is well established that when the Legislature has prescribed a particular method for the redress of an alleged wrong that method alone is open to the aggrieved party, and in such a case the Civil Court has no jurisdic tion to deal with the matter that can be raised before the specially appointed Tribunal. Reference was rightly made to (Bhaishaekar Nanabhai v. The Municipal Corporation of Bombay and others reported in (I L R Born. 1907 at p. 605), Joti Prasad U adhiya v. Amba Prasad reported in (A I R 1933 All. at p. 358.), Sajani Kanta Ghosal v. Bistoopoda Mayur and others reported in (A I R 1937 Cal. at p. 277) and Sultan Ali Nanghiana v. Nur Husain reported in (A I R 1949 Lah. at p. 131.). But the question is whether legality or otherwise of the order cancelling the polling that had already taken place and ordering fresh poll could be gone into by the Election Tribunal when an election petition was presented subsequent to the declaration of result on the basis of fresh polling. It was argued that the term " election " embraces the whole procedure whereby an elected member is returned. Reference was made to various cases which laid down that the word " election " includes the whole procedure including the stage of a candidate offering himself for election and filing the nomination papers. The word election is not defined and we have to determine the scope of the term " election " in reference to each statute. Most of the cases quoted before me dealt with the term " election " used in the Government of India (Provincial Elections) Corrupt Practices and Election Petitions Order 1936. Part III, para 3 of that order says that: "(I) An election petition against any returned candidate may be presented to the Governor‑ (a) by any candidate or elector on any ground ; (b) by an officer empowered in that behalf by the Governor, exercising his individual judgment on the ground that the election has not been a free election by reason of the large number of cases in which undue influence or bribery has been exercised or committed." Para. 7 of the same order says:- "(1) Subject to the provisions of this paragraph if in the opinion of the Commissioners‑ (a) the election of a returned candidate has been procured or induced, or the result of the election has been materially affected. by any corrupt practice ; or (b) any corrupt practice specified in Part I of the First Schedule to this order has been committed in the interests of a returned candidate ; or (c) the result of the election has been materially affected by the improper acceptance or rejection of any nomination, or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the improper reception or refusal of a vote, or by the reception of any vote which is void, or by any non‑compliance with the provisions of the Act or of this Order, or of any Act of the Provincial Legislature or Rules relating to the election, or by any mistake in the use of any prescribed form ; or

the election of the returned candidate. shall be void." A mere perusal of clauses 3 and 7 shows that the word " election " has been used in general sense so as to cover the entire proceedings from the stage of nomination up to the stage of declaration of result and that election can be challenged on any ground including the validity of any order passed by the Government. But the same is not the scope of section 17: It runs thus; If the order of the Chief Officer as to the validity of the nomination of any candidate for election as a councillor or as to the qualification of any person declared to be elected a councillor, is disputed, or if the validity of any election is questioned by reason of material irregularity in the election proceedings, bribery,‑ corruption, personation, treating, undue influence or any other thing materially affecting the result of the election, any person whose name is entered in the register of electors for the ward or the community concerned may, at any time within ten days after the result of the election has been declared apply to the judge of the Karachi Small Causes Court for an adjudication in the matter. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who, although not declared elected were duly nominated for election to the seat in question and proceed against the candidate who has been declared to be elected. If the word "election" were to include the nomination stage there was no necessity of providing that election petition can be filed even when validity of any nomination of any candidate or qualification of any person declared to be elected is disposed. This section provides election petition in three cases (1) where the validity of the nomination of any candidate for election as cancelled is disputed (2) when the qualification of any person declared to be elected as cancelled is disputed or (3) when the validity of any election is questioned. It necessarily follows that word "election" used in this section was not intended to include the stage of nomination otherwise the Legislature will be guilty of superfluity. The word "election" to my mind, here means the actual polling. This conclusion is further reinforced by the fact that validity of an election can be questioned only by reason of material irregularity in the election proceedings or any other thing which materially affects the result of the election. The election itself will not be liable to be questioned on the ground that a prior polling had taken place and had been quashed. The Judge Small Causes Court is competent only to go into those allegations which affect the result of the election and relate to activates during the course of the actual polling. I have, therefore, tentatively come to the conclusion that validity of the polling because of an earlier polling could not be questioned in an election petition filed under section 17 of the City of Karachi Municipal Act, 1933. If this be so, no remedy is provided for the wrong alleged by the plaintiff and the principle on which the bar of section 17 of the City of Karachi Municipal Act, 1933, could be pleaded is non‑existent in this case. It is a well established principle that where there is wrong there is remedy. If the Provincial Government could not have ordered re‑polling and illegality of order cannot be gone into in an election petition the Civil Court cannot be denied the jurisdiction to go into the allegations of the alleged wrong and give proper relief. I may refer in this connection to the case of Ashby v. White (1703) 2 Lord Raymond 3 Id. 320‑‑14 Howell St. Tr. 695 and The Municipal Board of Agra v. Ashrafi Lal reported in I L R 44 All. at p.

202. It is further contended on behalf of the defendants that the suit is barred because of Section 18 of the City of Karachi Municipal Act, 1933. The section runs thus :‑ "No suit, application or appeal shall lie to any Court in respect of any matter relating to or arising from representation and election, unless such suit, application or appeal is expressly authorised by this Act." No doubt, this section bars suits in respect of any matter relating to or arising from election but it is settled law that even where jurisdiction of Civil Courts are excluded they have jurisdiction to examine the cases where the provisions of the Act have not been complied with. Reference may be made to the case of Secretary of State v. Mask & Co. reported in (1940 P C at p. 105.); Emperor v. Sibnath Barierji and others reported in (AIR 1945 PC at p.156.); Muhammad Din and others v. Imam Din and others reported in (AIR 1948 PC at p.156.). The last case lays down that Civil Court has powers to entertain suits where the question is whether the executive authority has acted ultra vires. In this suit is whether the Provincial Government had authority to cancel the polling that had already taken place and order re -polling. I have held that the Provincial Government had no such authority and it follows there-from that the Civil Court has juris diction to go into the question whether the alleged act of the Provincial Government was ultra vices or within its authority. Bar of section 18 can come into play only when election is in conformity with the provisions of the Act and not otherwise. But here it is also contended that the suit is bad because of want of notice. Section 255 of the Act runs thus :‑ "No suit shall lie against the Corporation or against the Chief Officer or against any other municipal officer or servant in respect of any act done in pursuance or execution or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this act ........................... The important words are "in respect of any act done in pursuance or execution or intended execution of this Act". It is pertinent to note the wordings of section 80 C P C. There is a material difference between these two sections. If the bar of section 80, C P C were pleaded, it would be admissible, but it is not done so as the Municipal Commissioner is not a public officer within the meaning of the Code of Civil Procedure. Section 255 can apply only where the challenged act is the direct result of some authority conferred on the defendant This section constitutes a restriction on the ordinary rights of litigants and must be construed strictly. The question was considered by a Full Bench of the Bombay High Court in a case Municipal Borough of Ahmedabad v. Jayantilal Chhotalal Patel reported in (A I R 1948 Born. at P. 98.). Their Lordships held to the effect that the section would be applicable only when the act complained of is an act done pursuant to the direct execu tion of the statute or in the discharge of the public duty or in the exercise of public authority. Here the alleged act was ultra vices and on that footing section 33 of the Act is not applicable. The above discussion of the various contentions would show that the plaintiff has a strong Prima facie case. The next question is whether the balance of convenience would justify confirmation of the ad interim injunction. It has been argued on behalf of the defendants that ballot papers having been destroyed an election is inevitable and continuance of the injunction order would delay in the formation of an elected Municipal Corpora tion. The reply on behalf of the plaintiff was two‑fold; firstly, that a party should not be allowed to take advantage of its own wrong and supermacy of Law must be established ; secondly, if polling is allowed to take place it would be futile in as much as elections will be invalid and the corporation constituted on the basis of illegal election would also be illegally constituted. The result would be immense loss of public money and public time. There is force in the contentions of the plaintiff. Destruction of ballot papers was a wholly illegal act and any future elections in the wards and constitution of the Municipal Corporation on the basis of those illegal election would be null and void in case the suit succeeds. There seems to be no sense in allowing elections to be held if they are ultimately to be declared null and void. The submission of the learned counsels for the defendants that injunction is delaying formation of an elected Municipal Corporation deserves sympathy but the remedy lies with the Legislature, On account of an illegal act done in pursuance of an illegal order re-polling in seven wards has become inevitable although the Provincial Government has no authority to order re-polling under the Act. The way out can only be an Ordinance or special Act to confer power on the Provincial Government to hold re-polling in the seven wards. When I asked the counsel for the Municipal Corporation why that course was not being adopted, Mr. Armonds replied that the injunction stood in the way of promulgation of any Ordinance or enactment of any statute. To my mind, this appre hension is not justified. Conferment of power on the Provincial Government to hold re-polling in the seven wards in the particular circumstances of the case is possible even in the face of injunction order and the only course open. Considering that the plaintiff has got a strong prima facie case and balance of convenience lies on the side of confirming the injunction. I hereby confirm the order of my brother justice Inamullah restraining the defendant from holding any re‑polling in the ward. This order, however, would be no bar to afresh polling under any special power that may hereafter be conferred on the Provincial Government by any emergency legislation. This order shall govern application in suits Nos. 449, 450, 451 and 461 of 1953. K. M. A. Injunction order confirmed.