P L D 1954 Lahore 533 (PLP)

S. A. RAHMAN, J.‑This order will dispose of two civil revisions Nos. 151 and 226 of 1953. They have arisen in the following circumstances. ' Captain Sher Jang was elected a member of the Punjab Legislative Assembly as a result of the general elections held in the beginning of 1950 from the Muslim Constituency, Rawalpindi VI. Lt.‑Col. Muhammad Akbar and others, who are some of the electors of that constituency, brought the suit, out of which these revision petitions have arisen, for a declaration that Captain Sher Jang, the first defendant, had ceased to be a member of the Punjab Legislative Assembly, with effect from the date of his appointment as Secretary, District Soldiers, Sailors and Airmen's Board, Rawalpindi, alleged to be an office of profit under the Crown. This appointment of the first defendant was said to have taken place on the 16th of April 1951. The suit was contested, inter alia, on the ground that the Civil Court had no jurisdic tion to try it. The learned Civil Judge, First Class, Rawal pindi, in whose Court the suit was pending, therefore, framed the following preliminary issue:‑ Has this Court jurisdiction to try this suit? The issue was decided in favour of the plaintiff by order, dated the 8th of July 1953. The plaintiff' had also moved the trial Civil judge for the issue of a temporary injunction restraining the first defendant from attending and taking part in the meetings of the Punjab Legislative Assembly till the decision of the suit. A permanent injunction in similar terms had also been prayed for as a relief in the suit. This prayer was acceded to by the trial Judge. The matter was agitated by an appeal before the learned Senior Civil Judge, Rawalpindi, who upheld the order. Civil Re vision 151 is directed against the decision of the trial judge on the preliminary issue while Civil Revision 226 challenges the decisions of the Court of first instance and the lower appellate Court as regards the validity of the ad interim injunc tion issued against the first defendant. I will first take up Civil Revision 151. It is necessary at the outset to take note of the precise pleadings set out in the plaint. It is recited therein that prior to his being elected as a member of the Punjab Legislative Assembly, Captain Sher Jang was the Secretary of the District Soldiers, Sailors and Airmen's Board, Rawalpindi, and as such was disqualified from being chosen as member of the said Assembly. He resigned from that office and then sought election to the Assembly. After the election was over, he got himself re‑appointed in the same capacity and thus incurred a disqualification. It was claimed that the second defendant, namely, the Punjab Province, was bound under the law to declare the seat of the first defendant vacant from the date of his re‑appointment as the Secretary of the above‑mentioned Board, but that defendant 2 had failed to take any action in spite of a notice. The suit was brought in a representative capacity on behalf of the electors. In his written statement the first defendant pleaded that he was Secretary of. the District Soldiers, Sailors and Airmen's Board at the time of his election and continued to hold that office throughout. He traversed the plea that this was an office of profit under the Crown. The second defendant, namely, the Provincial Government, supported the stand taken by the first defendant. A preliminary objection was also raised on behalf of the first defendant that by virtue of para. 2 of Part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Peti tions) Order, 1936, the Court had no jurisdiction to entertain the suit as no election could be called in question except by an election petition presented in accordance with the pro visions of the relevant part of the Order aforesaid. The learned civil judge took the view that the Civil Court's jurisdiction to go into the question whether a dis qualification had been incurred by a duly elected member .of the Punjab Legislative Assembly, after the election was over, was not barred. The learned judge referred to the conten tion raised on behalf of the first defendant that he had all along held the office objected to and that if it was an office of profit under the Crown, his 'disqualification could form the subject of a regular election petition which was the sole remedy provided by law for that purpose. He remarked in that connection that the plaintiff's case was different, namely, that the 'disqualification had‑ been incurred after the election, and the election per se was not challenged as invalid. He went on to add that it was immaterial whether the dis qualification supervened after the election or was already in existence when the election was held, as long as the plaintiff did not challenge the validity of the election itself. This view is assailed as incorrect by Mr. Bashir Ahmad on behalf of the petitioner. Learned counsel for the petitioner has taken me through the relevant provisions of the Constitution Act bearing on the issue involved. He has first invited my attention to section 61 of the Act which provides, inter alia, that every Legislative Assembly, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting. A duly elected person, therefore; has the statutory right to continue as a member of the Assembly for five years. Section 69 enacts that a person shall be disqualified for being chosen as, and for being, a member of the Provincial Legisla tive Assembly, if, inter alia, he holds any office of profit under the Crown in Pakistan or under any other Government, except an office declared by Act of the Provincial Legisla ture not to. disqualify its holder. The rest of the provisions of this section are not material for our purpose. Reference was made to para. 2 of Part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, (hereinafter referred to as His Majesty's Order in Council), which is in the following terms:‑ "No election shall be called in question except by an election petition presented in accordance with the provisions of this Part of this Order.' The Order was passed by His Majesty in Council under the authority of section 291 of the Constitution Act, as it stood before the partition of India. It is not disputed that it continues to be part of the law of the land. The position, therefore, is that it is only a special tribunal, namely, a Com mission constituted under His Majesty's Order in Council, that can adjudicate a dispute about the validity of an election, and to that extent the Civil Courts would be pre cluded from going over the same ground. The questions, however, that arise for determination in the present case are whether the first, defendant has incurred a disqualifica tion within the meaning of section 69 of the Constitution Act subsequent to the election and whether this question can be exclusively agitated before an election Commission or before the ordinary Courts, in view .of the fact that section 69 of the Constitution Act places a ban on persons disqualified, from being chosen as members of the Provincial Legislative Assembly. If the, disqualification had been incurred antecedent to the election there would have been no doubt that it could have formed the subject of an election, petition and protanto the jurisdiction of the Civil Courts would have been excluded, but that is not the plaintiff's case. At the present moment we are not concerned whether the allegations of fact made by the plaintiff are correct or not. If he fails subsequently to substantiate those facts and it is found that the alleged disqualification had not super vened after the election but had existed long before it, the suit may have to be eventually dismissed on the ground that 'the foundation of fact necessary to give jurisdiction to the Court, had vanished. At this stage the allegations in the plaint alone have to be looked at for the purpose of deciding the preliminary issue concerning jurisdiction. In this context, therefore, the decision of the preliminary issue would really be a tentative one and the final decision would have to take note of the actual fact established on the basis of evidence. The point for decision is whether a disqualification arising on a date subsequent to the election can form the subject of an election petition or not. On the answer to this question would depend the decision of the question of jurisdiction. If the matter is within the jurisdiction of an election Commission, the Civil Court would be unable to go into the matter. The law is well settled that the ouster of jurisdiction of the general Courts is not to be presumed by any special legislation unless there is either express provision to that effect or the result follows by necessary intendment. Mr. Bashir Ahmad attempted to argue before me that all matters relatable to an election, whether directly or in directly, should be deemed to fall within the exclusive jurisdiction of an election Commission unless the contrary was shown. Learned counsel has cited a Full Bench judgment of this Court reported as Sultan Ali v. Nur Hussain (A I R 1949 Lah. 131= P L D 1949. Lah. 301.) which really goes against him. He has relied on observations of the majority of the judges in that case to the effect that where a right is created by a statute which also prescribes the manner in which that right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute. No exception can be taken to the principle thus' formulated, if I might say so, with all respect. The learned judges in that case affirmed the rule of law mentioned above in these words :‑ "When the plea of ouster of Civil Courts' jurisdiction is taken, the essential question to be determined is whether such jurisdiction is barred expressly or by necessary implica tion." Their Lordships were dealing in that case with the matter of contempt of a notice issued to the President and Members of a Commission hearing an election petition, who had refused to obey a stay order issued by this Court. The decision was that the stay order was without jurisdiction and, therefore, no contempt was committed. Mr. Bashir Ahmad emphasised certain observations of their Lordships in that judgment to the effect that where a civil right did not exist before a statute was passed but was entirely created by that statute, it would be reasonable to infer that the Legislature intended that right to be enforced only in the manner that statute prescribes. But the learned couns9l has failed to notice that in that very judgment it was also laid down that the jurisdiction of Civil Courts was excluded only to the extent that the power of adjudication was given, to the special tribunal whether expressly or by necessary implication. It was remarked that while Civil Courts cannot assume to themselves the functions of the special tribunal, they would be perfectly competent to entertain and deter mine all actions the object of which may be to seek the determination of the 'right in the manner in which the statute intended it to be determined. Where the special tribunal is properly constituted and it functions in a matter which had been entrusted to it by the statute, its decision, right or wrong, is final and cannot be called in question in a Civil Court. The position here is somewhat different. The real question as I have stated above is whether by express provision or by necessary implication it can beheld that the adjudication of a dispute concerning a disqualification incurred after the election, is within the exclusive jurisdiction of an election Commission or not. Paragraph 7 of Part III of His Majesty's Order in Council specifies the grounds on which an election maybe declared void in sub‑para. (1). Mr. Bashir Ahmad takes his stand on clause (c) of sub‑para. (1) of this part which may be repro duced in extenso: "7. (1) Subject to the provisions of this paragraph, if in the opinion of the Commissioners (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 recep tion 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." The learned counsel stresses the words "any person 'nomi nated 'was not qualified or was disqualified for election" occur ring in clause (c) above. He contends that these words should be interpreted to mean that even if a duly elected member incurs a disqualification within the meaning of section 69 of the Constitution Act, subsequent to the election and there is a dispute as to whether such a disqualification has supervened or not, the dispute must be referred for decision to an election Commission and not to a Civil Court. I am unable to accede to this contention as correct: It seems to that the matters referred to in clause (c) are those which are really antecedent to an election and in particular the expression "disqualification for election" is not referable to a point of time after the election. The word "nominated" in this context is a significant pointer to the correct interpretation. I cannot imagine that the, Legislature wanted to provide for an election being invalidated not by something which was vitally connected with it but by some extraneous factor which arose long after the election was over. The construction I place on clause (c) of sub‑para. (1) of para. 7 quoted above, receives support from the fact that the Legislature has prescribed a period of limitation for an election petition in the electoral rules promulgated under para. 6 of 'Part III of His Majesty's Order in Council by the Governor of the Punjab. It is conceded by Mr. Bashir Ahmad that an election petition can only be filed within fourteen days of the date of the gazette notification regard ing the filing of the election expenses by a candidate. The period allowed for filing return of the election expenses is thirty‑five days under the rules. It follows that if an elected member of the Assembly accepts an office of profit under the Crown and thus disqualifies himself from continu ing as a member, more than forty‑nine days after the result of the election ‑has been gazetted, no election petition could have been moved in respect of such disqualification owing to the bar of time. The inference, therefore, is irresistible that such a disqualification could not form the subject of an election petition if it supervenes after the elections are over. It is admitted that there is no other express pro vision besides clause (c) of sub‑para. (1) of para. 7, which may be pressed into service for holding such a matter to be within the exclusive jurisdiction of an election Commission. It is un thinkable that the Legislature intended that if the disqualifica tion was incurred within forty‑nine days of the election, the matter could only be agitated before an election Commission, but if the event happened even one day later, there would be no remedy available. The face that failure to put in a return of election expenses after the elections are over may, also entail an election petition, tends to strengthen the construction which I have placed on the above paragraph rather than the reverse. It means that the Legislature has made specific provision for an election petition to be grounded on such failure. There was nothing to prevent the Legislature from making a similar specific provision regarding a disqualifica tion of the nature we are discussing in this case, if it had been so minded. The absence of such a provision strongly suggests that the ouster of Civil Courts in respect of such a matter was not intended. On the contrary, if a disqualification such as may afflict a sitting member after the election, was also to be exclusively adjudicated upon by an election Commission, one would have expected some provision of the effect that for an election petition based on such a ground, there would be no period of limitation. After carefully considering the relevant statutory pro visions and the arguments of Mr. Bashir Ahmad, I have reach ed the? conclusion that neither expressly nor by necessary intendment, the Civil Courts' jurisdiction has been excluded in: respect of an action such as we are dealing with in the present case. This discussion is sufficient to dispose of the first revision petition. I next take up for consideration the matter of the temporary injunction which forms the subject of Civil Revision No. 226 of 1953. I do not wish to say anything on the question whether the job of Secretary to the District Soldiers, Sailgrs and Airmen's Board, Rawalpindi, is an office of profit under the Crown or not. That will be one of the substantive issues to be decided in the case. I have asked Mr. Bashir Ahmad to tell me how a revision petition is com petent at all against the orders of the Courts below in this case. At, the present stage of the case I do not think there is warrant for the conclusion that the order impugned is either vitiated by want of or excess of jurisdiction or that it is illegal or tainted with material irregularity on the facts assumed. The revisional jurisdiction of this Court is limited by the provisions of section 115 of the C. P. C. I do not think the case has been brought within the four corners of that section. Learned counsel for the petitioner complains that the Courts below merely relied on a notice appearing in the Civil and Military Gazette, dated the 15th of April 1951, calling for applications for the post of Secretary, District Soldiers, Sailors and Airmen's Board, Rawalpindi. On this it was presumed by the learned Senior Civil Judge that the appellant was in all probability appointed to his present office in 1951, as alleged by the plaintiff. It may be observ ed that the first defendant had been declared duly elected as a member of the Legislative Assembly by a gazette noti fication, dated the 2nd of April 1951 and the plaintiff alleged that he had been re‑appointed to his post on the 16th of April 1951. Mr. Bashir Ahmad points out that, subsequently, this advertisement‑ had been withdrawn by the Board, by another notice inserted in the daily papers, on the 10th of May 1951, wherein it was explicitly stated that the post had never fallen vacant and was held by the previous incumbent. It appears that this subsequent advertisement was never brought to the notice of the learned Senior Civil Judge or of the trial judge. If so advised, the petitioner can even now bring this material to the notice of the trial Court and pray for the vacation of the ad interim injunction. I have no doubt that if these facts are placed before the Court, a proper order will be passed after taking into consideration all the relevant facts. Clearly if prima facie ground exists for think ing that there had been no appointment of the first defendant to the post in question after the elections, but that he had continued to hold it all along, the Civil Court's jurisdiction to entertain the suit would become doubtful and the vacation of the ad interim injunction would call for serious considera tion. As it is, however, I am unable to say that the Courts below exercised their discretion, on the basis of material before them, in such an irregular manner as to call for interference in revision. I, therefore, hold that the impugned order has not been made out to be revisable by this Court. The result of this discussion is that both the revision petitions fail and I hereby dismiss them. In view of the difficult nature of the questions involved I leave the parties to bear their own costs in this Court. A: H. Petitions dismissed.