P L D 1957 Dacca 209 (PLP)

RAHMAN, J.‑

This Rule nisi was issued on the 17th February 1956, at the instance of two petitioners calling upon the respondents Nos. 1 to 36 to show cause as to why a writ of quo warranto or an information in the nature of quo warranto should not issue against them as also calling upon the opposite parties Nos. 37 and 38 to show cause as to why they should not forbear from acting upon or giving effect to the Notification No. 55‑L.S.G., dated the 4th January 1956, and why the same should not be recalled or cancelled. The petitioners claim that they are residents of the District of Chittagong entitled to vote at District Board elections in the said District, and were duly elected members of the Chittagong District Board until the same was purported to be reconstituted on the 2nd February 1956. The respon dents Nos.1 to 36 are, according to the petitioners, wrongfully usurping the offices of the Chairman, Vice‑Chairman and members of the said District Board. Of these, it is alleged, respondents Nos. 4 to 11 are persons who purport to have been appointed by the Provincial Government to act as such members under section 7 of the Bengal Local Self‑Government Act (III of 1885), and respondents Nos. 2 and 3 are persons whom the Provincial Government claims to have appointed under a new section 10‑B introduced into the said Act by the Bengal Local Self‑Government (East Bengal Amendment) Ordinance (I of 1955). The rest of the aforesaid 36 persons claim to have been duly elected as members of the said Boa d at the last general election held on the 4th, 5th and 6th April 1955, and the respondents Nos. 1 and 24 also claim to have been duly elected as Chairman and Vice‑Chairman, respec tively, of the said Board on the 2nd February 1956. The names of the said 36 persons, elected and nominated as aforesaid, were notified by the Provincial Government by the Notification No. 55‑L.S.G., dated the 4th January 1956, published in a Gazette Extraordinary on the 5th January 1956, and, as such, the petitioners also pray that the District Magistrate of Chittagong and the Provincial Government (respondents Nos. 37 and 38) should either be directed to forbear from giving effect to the said Notification or to recall and cancel the same. Although by this application the petitioners seek to invoke the powers vested in this Court to issue Writs under section 223‑A of the Government of India Act, 1935, they have not chosen to specify the precise writ asked for against the respondents Nos. 37 and

38. The power given by the said section is limited to the issuing of writs only including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which are all of the kind known in England as high prerogative writs. Now with regard to such writs the rule is; as was pointed out by Lord Atkin, in the opinion of the Judicial Committee delivered by him, in the case of Commissioner for Local Government Lands and Settle ment v. Abdulhusein Kaderbhai (A I R 1931 P C 132); that "the precise order asked for and made should in such cases be carefully defined". It is important to remember that the high prerogative writs are by their very nature purely discretionary reliefs and of such a highly technical nature that even a formal defect may well prove fatal. In the present case, however, since the legal profession in this country has not as yet gained full familiarity with the technicalities attaching to such writs we do not propose to discharge the Rule against respondents Nos. 37 and 38 on the technical defect of form alone, but to look rather to the substance of the relief claimed, and to treat it as a Rule substantially for a Writ of mandamus as against the said respondents. We might, however, mention here that although this application was filed and the Rule obtained prior to the coming into force of the Constitution of the Islamic Republic of Pakistan, the learned Counsel for the petitioners sought to contend before us that nevertheless this application should be treated as one under Article 170 of the Constitution, and since the said Article vested this Court with wider powers of issuing appropriate directions or orders, which were not confined merely to the issuing of high prerogative writs, the defect above alluded to was, in any event, of no consequence. This argument appears to us to be based upon a mis-appreciation of the true nature and scope of the said Article. The pro visions of the said Article do not relate purely to matters off procedure and cannot, therefore, be given retrospective effect particularly as there is nothing in the Constitution itself to indicate that the said provisions were intended to operate retrospectively. Indeed the indication, if any, in the Con stitution itself is to the contrary, for Article 219 thereof has expressly made the provisions of the General Clauses Act off 1897, applicable for the interpretation of the Constitution, and furthermore provided that for this purpose the Acts repealed by the Constitution should be deemed to be Central Acts within the meaning of the said General Clauses Act. The Government of India Act, 1935, is one of such Acts repealed by the Constitution. By reason of the provision of clause (e) of section 6 of the General Clauses Act, therefore, the repeal of the Government of India Act, 1935, does not affect pending proceedings commenced under the said repealed Act, and the rights of the parties to such proceedings are to be governed according to the law as it existed when the action or proceeding was begun. This also appears to be the view prevailing in India with regard to the interpretation of Article 226 of the Indian Constitution which is in almost identical terms. In the case of Rajaram Dadu and others v. The State and another (A I R 1951 Nag. 443), where after an application had been filed on the 16th June 1949, for revision either under section 115 of the Code of Civil Procedure or under clause 11 of the Letters Patent of the Nagpur High Court or under section 107 of the Government of India Act, 1915; read with section 223 of the Government of India Act, 1935; an attempt was made on the 20th November 1950, to amend the petition by including therein reliefs by way of writ of certiorari or other appropriate direction, order or writ under Articles 226 and 227 of the Indian Constitution, a Full Bench of the said High Court held that the remedies provided by the said Articles could not be invoked as they were not retrospective in operation and refused the amendment. For this view their Lordships of the Nagpur High Court also found support from a majority decision of the Supreme Court of India in the case of Keshavan Madhava Menon v. The State of Bombay (A I R 1951 S C 128). In the latter case an attempt was made to question the legality of a prosecution under the Press (Emergency Powers) Act, 1931, pending on the date of the Constitution of India came into force on the ground that the relevant provisions of the said Act under which the offence was alleged to have been com mitted were inconsistent with the fundamental rights conferred by the Constitution and, therefore, void. The Supreme Court of India by a majority of four as against two dissenting, upheld the decision of a Special Bench of the Bombay High Court, consisting of three learned Judges, to the effect that the Constitution of India had no retrospective operation, and as such, a proceeding pending at the date of the commencement of the Constitution was not affected even if the provisions of the Statute alleged to have been violated were inconsistent with the fundamental rights conferred by the Constitution. Having dealt with the arguments of the learned Counsel for the petitioners on this preliminary point, we propose now to deal with the main questions arising in this case. For a proper appreciation, however, of the said questions it is necessary to set out the relevant facts upon which the argu ments advanced before us have been founded. It is alleged that the term of the old District Board of Chittagong expired and its reconstitution by fresh elections and nominations became due on the 19th October 1954, but before any steps could be taken in that behalf the Provincial Government by its Notification No. 5038‑G.A., dated the 24th December 1954, which was published in the Dacca Gazette on the 6th January 1955, directed that certain Mauzas specified in the schedule to the said Notification comprised in the Police Station of Sandwip which had hitherto formed part of the District of Noakhali shall be included in the Sadar Subdivision of Chittagong District with effect from the 25th December 195.4. Although this Notification purported to have been made in exercise only of the powers conferred by clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898, the petitioners maintain that it effected a complete transfer of the said Mauzas to the District of Chittagong for all purposes and this necessitated, according to them, a fresh delimitation of the constituencies for the purposes of election of members to the said District Board in accordance with the provisions of Rule 2 of the Rules for direct Election of Members of District Boards framed under section 138 read with section 36‑D (2) of the Bengal Local Self‑Government Act, 1885. This, according to the petitioners, was not done, but the District Magistrate of Chittagong by his Notifications Nos. 24‑Elec. and 25‑Elec., dated the 20th January 1955, and published in the local Gazette on the same day called upon certain constituencies mentioned in the schedules to the said Notification No. 24‑Elec., together with their respective territorial extents, to elect members for the general and reserved seats as also fixed the dates for the filing and scrutiny of nomination papers, withdrawal of candidature and polling in exercise of his powers under section 16‑A of the said Act, and Rules 2 and 44 of Part II of the said Rules. The schedules above referred to did not, however, include the Mauzas directed to be included in the Sadar Subdivision of Chittagong by the Notification No. 5038‑G.A. of the 24th December 1954. The petitioners challenge the validity of this Notification, and the elections held in pursuance thereof, and claim that the respondents Nos. 1 and 12 to 36 who claim to have been elected at this invalid and illegal general election have no right to act as members of the said District Board and should, therefore, be declared to have usurped the said public offices of members of the said District Board. Thereafter, it is stated, the Provincial Government by its Notification No. 55‑L.S.‑G., dated the 4th January 1956, published in the Gazette of the following day notified not only the names of the respondents so illegally elected but also purported to announce the names of 10 other persons said to have been nominated by the said Government. Of these nominated persons eight purported to have been appointed under section 7 of the Bengal Local Self‑Government Act, and two under section 10‑B; introduced into the said Act by the Bengal Local Self‑Government (East Bengal Amendment) Ordinance (I of 1955), which was promulgated on the 21st December 1955; for representation of the areas of Sandwip which the said Notification stated were transferred to the Chittagong District. It is contended that the nomination of 10 members was illegal and ultra vires as the Provincial Govern ment had already fixed by its Notification No. 171‑L.S.‑G., dated the 20th February 1940; issued in exercise of its powers under section 7 and subsection (1) of section 36‑B of the Bengal Local Self‑Government Act; that the District Board pf Chittagong shall consist of 34 persons of whom 26 shall be elected. Furthermore that the appointment of 2 persons to represent Sandwip was, in any event, illegal, ultra vires, mala fide and in abuse of the powers of Government. The Ordinance I of 1955 itself is also challenged by the petitioners on the ground that it has been made in bad faith for a collateral purpose, and in abuse of the Ordinance making powers. In these circumstances, it is further alleged, that the District Board of Chittagong was not lawfully reconstituted and could not validly elect any Chairman as it purported to do on the 2nd February 1956, in spite of the illegalities in the constitution of the Board, and as such, the election of the respondent No. 1 as the Chairman was wholly illegal and void. The said respondent had no right or authority to act as such Chairman and should also be declared to be usurping the said office which was a corporate public office. The petitioners also seek to challenge the election of the Chairman upon the allegations that the same was procured by undue influence exerted by one of the Ministers of the Pro vincial Government who influenced the result of the election by inducements, intimidations, threats of official pressure and harassment, and by wrongfully procuring the nominations of persons who would support the respondent No.1, who, it is alleged, is one of the henchmen of the said Minister. It will be apparent from the statement of the petitioners' case given above that the main objective of this application is to challenge the election of the Chairman, but to achieve this objective the petitioners have had perforce also to challenge the constitution of the Board itself from the initial stage for having regard to the fact that the Chairman was elected by a clear majority of 7 votes, the petitioners would otherwise stand little chance of successfully assailing the said election. It will be convenient, therefore, to take up for consideration first the question as to whether the petitioners are entitled to a Writ of quo warranto as against the respon dents Nos. 1 and 12 to 36, the elected members. If the petitioners succeed in this, then it may not be necessary to go into the other questions for in that even the Board concerned must be declared to be improperly constituted and the sub sequent elections invalid. On this question the learned Counsel for the petitioners has contended that an information in the nature of a quo warranto lies against a person claiming and usurping an office or franchise for determining his right to the office provided the office is a. substantive corporate office of a public nature and the person proceeded against is in actual possession and user of the office in question. According to him the office of a member of a District Board is similar to a Municipal office created by Statute which has consistently been held in England to be an office in respect of which quo warranto proceedings will lie. For this purpose the learned Counsel relies on the cases of the Queen v. Burrows ((1892) L R I Q B 399) and the King v. Beer ((1903) L R 2 K B 693). In the former case it was held that an information in the nature of quo warranto would lie to inquire into the validity of the election of a Clerk to a Vestry according to the test laid down in Darley v. The Queen (1), namely, that the "source of the office, the tenure and the duties" determine the applicability of a proceeding of this kind. If the office is created by Charter or Statute, the duties are of a public nature and the tenure is sufficiently secure, then it comes within the class of cases in respect of which such a proceeding lies. The office of the Clerk of the Vestry which was under considera tion in that case, it appears, was created by Statute, which cast upon him the duty of preparing the Jury list, and the holder of the office was not removable except by resolution of the Vestry subject to the veto of the Local Government Board which could however, itself dismiss him. Similarly in the case of the King v. Beer, it was held that a quo warranto would lie to question the election of a Borough Councilor who suffered from a disqualification not merely for election but also for holding the office of such Councilor. In the latter case it was not disputed that the office was of a nature in respect of which a remedy by way of a quo warranto would lie. But it is clear that the tests laid down in Darley v. The Queen have been universally accepted in England, and it is equally clear that the office of a member of a District Board also satisfies these tests. We hold accordingly that it is an office of the class in respect of which a proceeding by way of quo warranto may lie in an appropriate case. This, however, does not solve the problem, for on behalf of the respondents several very substantial objections have been taken to the issue of this writ even on the basis that the office is one in respect of which such a proceeding may lie. The most important of the said objections is the one taken on behalf of the Province of East Bengal in paragraph 27 of its counter‑affidavit, namely, that the elections held in April 1955, not having been challenged within the period prescribed by section 18‑B of the Bengal Local Self‑Govern ment Act or in the manner prescribed therein became automatically final and cannot now be questioned even by a writ of quo warranto by reason of the provisions of section 18‑I of the said Act which completely exclude the jurisdiction of all Courts with regard to such elections. In any event, it is urged, that since a writ of quo warranto like any other high prerogative writ is purely discretionary it should not issue where adequate alternative remedy by way of an election petition was available to the petitioners, and was deliberately not availed of by them. The learned Counsel for the petitioners endeavoured to meet this objection, firstly, by contending that what section 18‑I of the Bengal Local Self‑Government Act barred was the right to question the election of an individual member, and not the right to question the constitution of the entire body, as he was seeking to do in the present case, and hence, it had no application in the facts of the present case; (1) 12 Clark & Finnely's Reports, House of Lords 52 secondly, that the remedy by way of an election petition was not a sufficiently adequate alternative remedy in the cir cumstances of this case; and thirdly, that, in any event, the said section 18‑I could not take away or restrict the powers given to the High Court by section 223‑A of the Government of India Act, 1935. The learned Counsel's first contention is without any foundation whatsoever for a reference to the prayers in his petition, and the Rule nisi obtained by his clients will make it abundantly clear that what they do ask for an informa tion in the nature of quo warranto to be exhibited against each of the said respondents to have the right by which each of them claims to act as the member of the District Board concerned tested in these proceedings and that right is none other than the right they claim to have acquired by virtue of their election as such members. So what is in fact in substance being questioned in these proceedings is the election of each individual member, and that is precisely what section 18‑I of the Bengal Local Self‑Government Act prohibits. In this view of the matter his second contention also must be rejected for in our view in the circumstances of this case the remedy by way of an election petition would have been an equally inexpensive, equally expeditious, and equally t efficacious remedy. We cannot also help observing that in January 1955, when the District Magistrate issued the Notification No. 24‑Elec., the remedy by way of an appro priate writ was available to the petitioners, at any rate, up to the 21st March 1955, when section 223‑A was declared to be invalid by the Federal Court, and if they were really serious about their contentions regarding the omission to delimit the constituencies afresh and to incorporate the areas of Sandwip alleged to have been included in the District of Chittagong they could well have moved this Court for an appropriate writ to compel the Provincial Government to make good the said omission. Now with regard to the last contention of the learned Counsel we have to point out that he has failed to appreciate the full import of the point made by the learned Senior Government Pleader appearing on behalf of the Provincial Government. It is not so much a question of conflict between the provisions of section 18‑I of the Bengal Local Self Government Act, and section 223‑A of the Government of India Act, 1935, but rather a question as to whether the provisions of the latter section can be invoked retrospectively to effect a right which became finally vested in the respondents by virtue of the provisions of the said section 18‑I long before the said section 223‑A came to be validated by the Validation of Laws Act, 1955, which received the assent of the Go, no General only on the 2nd October 1955, after the said section had been declared to be invalid by the Federal Court by its decision on the 21st March 1955, in the case of the Federation of Pakistan v. Maulvi Tumizuddin Khan (P L D 1955 F C 240). The result of this declaration was that the said section 223‑A never existed, and as such, since section 3 of the Validation of Laws Act, 1955, only provided that the Government of India (Amendment) Act, 1954; which introduced the said section 223‑A; shall come into force from the date of the commencement of the Validation of Laws Act, 1955, it must be taken that the said section 223‑A came into being only on the 2nd October 1955, whilst the elections were completed by the 6th April 1955, and the period prescribed by section 18‑B of the Bengal Local Self‑Government Act for challenging the validity of the elections also expired before the 2nd October 1955. There can be no doubt that under the law as it existed between the 21st March 1955, and the 2nd October 1955, these elections could only be questioned by way of an election petition in the manner prescribed under the said Bengal Local Self‑Government Act, and since no such election petition was filed within the time prescribed by the said Act the right to act as elected members of the District Board became vested in these respondents and the same could not be affected by a subsequent enactment even though it was of the nature of a constitutional enactment unless the enactment itself was either by express words or by necessary intendment given retrospec tive effect. In the present case it is clear from the language of section 3 of the Validation of Laws Act, 1955, that the Government of India (Amendment) Act, 1954, was not given any retrospective effect, and as such, it could not, in our opinion, affect a vested right and the remedy by way of a, Writ of quo warranto does not lie in the circumstances of the l present case to question the validity of the election of the respondents Nos. 1 and 12 to 36 as members of the District Board of Chittagong. This view that we have taken as regards the scope of section 223‑A of the Government of India Act, 1935, seems to find support also from a series of decisions of the Indian High Courts with regard to the scope of Article 226 of the Indian Constitution. In addition to the cases to which we have already referred earlier in this judgment whilst consider ing the nature and scope of Article 170 of our own Constitution we might here refer also to the cases of Lachmandas Kewalram and another v. State of Bombay (A I R 1952 S C 235), and Muhammad Beary and another v. T. Hossain Kutty and another (A I R 1951 Mad. 280). In the former case the view taken by the Supreme Court of Indian in Keshavan Madhava Menon v. State of Bombay, was reaffirmed, and it was held that even the provisions of the Indian Constitution relating to fundamental rights have no retrospective operation, and do not affect a criminal prosecution commenced before the Constitution came into force. The latter ease, however, is more opposite and directly on the point before us. A Division Bench of the Madras High Court held in this case that when an order passed under the Madras Buildings (Lease and Rent Control) Act had become final under the provisions of the said Act before the commencement of the Constitution and was not open to challenge by writ of certiorari at the time it was passed then the subsequent enactment of Article 226 of the Indian Constitution could not take away that vested right which had accrued under the final order passed before that date. We might mention here that the learned Counsel for the petitioners sought to support his arguments regarding re pugnancy between the provisions of section 18‑I of the Bengal Local Self‑Government Act, and section 223‑A of the Govern ment of India Act, 1935, by relying upon certain observations relating to the principles to be followed in construing organic instruments like the Constitution Act in the cases of Shyamakant Lal v. Rambhajan Singh and others (A I R 1939 F C 74), G. D. Karkare v. T. L. Shevde and others (A I R 1952 Nag. 330), and The State v. Zaverbhai Amaidas and others (A I R 1953 Bom. 371). The decision of the Federal Court and the Bombay High Court dealt with questions of repugnancy between Central Acts and Provincial Acts under section 107 of the Government of India Act, 1935, and have no bearing on the question of retrospective operation of a constitutional provision. In the view that we have taken, there is no question of repugnancy here. The Nagpur decision was concerned with the question as to whether a Writ of quo warranto would lie under Article 226 of the Indian Constitution in respect of the office of the Advocate‑General. There, it was contended, that it was available only where a question of any fundamental right was involved, and it was m that connection that the Nagpur High Court held that the words "for any other purpose" in Article 226 need not be construed ejusdem generis but should be given a liberal interpretation. Section 223‑A of the Govern ment of India Act, 1935, does not contain these words so this decision also has no bearing on the point under consideration. On the other band it contains observations which tend to support the, principle of construction adopted by us, namely, that the provisions of the Constitution are subject to the ordinary principles applicable to the construction of Statutes. Apart from the question dealt with by us there is one other aspect of the matter to which we must advert. It seems that according to the authorities in England the principle is now well settled that "where it is provided by Statute that election to a Municipal office is to be questioned by an election petition, an information in the nature of a quo warranto will not lie" (vide Halsbury's Laws of England, 2nd Edition, Vol. 9, page 809). It was on this principle that in the case of Queen v. Morton (L R (1892) Q B 39), a writ of quo warranto was refused for questioning the election of an Alderman on the ground that the Mayor who presided at the election, first voted for himself and caused an equality of votes, then gave his casting vote and declared himself elected. It was held that since the Municipal Corporations Act, 1882, provided that a Municipal election may be questioned by an election petition, on the grounds of disqualification and want of majority of lawful votes, and expressly barred the questioning of such elections on any of these grounds save by an election petition, the writ did not lie. This principle has been followed in India also in con sidering whether a writ of quo warranto should issue under Article 226 of the Indian Constitution for challenging elections to Municipal offices. In the case of Bhai rulal Chunilal v. State of Bombay and others (A I R 1954 Bom. 116), where the petitioner who was a rate‑payer and voter of a Borough Municipality sought to challenge the constitution of the Municipality itself on the ground that the general election by which the Councilors of the Municipality were elected was null and void, and, there fore, the Municipality had no power or authority to discharge the duties under the Municipal Boroughs Act. Chagla, C. J. and Dixit, J. refused to issue the writ against the Borough Municipality even though it was contended that the writ was not asked for against individual Councilors, and observed that "it is well settled that where you have Statutory pro visions dealing with the conduct of an election, the Writ of quo warranto is displaced", and "an election then can only bell challenged in the manner laid down by the Statute", as what was in effect sought to be done by the application was to challenge the election of all the Councilors. This is precisely what the petitioners before us are also seeking to do by their application, and we see no reason why the same principles should not apply in the present case also. The learned Counsel attempted to distinguish these cases by saying that even if this principle applies it is not without exceptions, and should not be held to apply in cases where the grounds of challenge are not within the scope of the Statute, and relied on the case of the King v. Beer, where this distinction was made, and a writ of quo warranto was issued on the ground that the disqualification in that case upon which the election was challenged, namely, bankruptcy, was not merely a disqualification for election, but also a disqualifica tion for holding the office. According to this decision it would seem that the rule was held to be limited only to cases where an election petition would under the Statute providing for the same lie, but that the writ would still lie in cases where the disqualification arises after the election or is a continuing disqualification such as to be a disqualification also for holding office. Even accepting this restricted application of the rule, we are of the opinion, that the petitioners before us cannot profit by it. The ground upon which the petitioners sought to assail the elections of the members of the District Board was the ground of omission to delimit the constituencies after inclusion of the areas of Sandwip, alleged to have been trans ferred, in accordance with the provisions of Rule 2 of Part I of the Rules for Direct Election of District Boards. In other words, on the ground of non‑compliance with the rules framed under the Bengal Local Self‑Government Act which under the provisions of section 18‑D is one of the grounds upon whicn an election can be challenged by way of an election petition. This was thus a ground within the scope of the Statute, and as such, even according to the restricted opera tion of the rule above referred to the petitioners are not entitled to a writ of quo warranto against the elected respondents. With regard to the non‑inclusion of the areas of Sandwip said to have been transferred to Chittagong we need only say here that according to the view we have taken the Notifica tion No. 5038‑G.A., dated the 24th December 1954, which the petitioners claim effected a complete transfer for all purposes, did not do so, and as such, no question of the inclusion of the said areas arose at the date either of the Notification No. 24‑Elec., dated the 20th January 1955, or of the elections in April 1955. The reasons upon which we have formed this view will be found hereafter in our discussions relating to the validity of the nomination of the two members purported to have been made under section 10‑B of the Bengal Local Self‑Government Act for representation of the said areas of Sandwip. In connection with this part of the petitioners case relating to the elected respondents we must now notice the other objections raised on their behalf, namely, on the grounds of delay in seeking the remedy by way of a writ, non disclosure of all material facts, and the dishonest motive of the petitioners. There can be no doubt that the writ of quo warranto like all other prerogative writs is purely in the discretion of the Court, and as in the case of all other discretionary reliefs the Court must be satisfied in each case i that the persons seeking this relief have come before it with an honest intention, made the fullest possible disclosure of all material facts within their knowledge, and have not been guilty of any undue laches. The satisfaction of the Court, however, must be based on sufficient materials, and not merely upon the bare assertions of the parties. Judging in this light we are unable to say in the present case that anything has been shown to us which would induce us to hold that the petitioners have come here with any improper motive or that they have failed to place before this Court any material fact which was within their knowledge. With regard to the delay, however, we cannot help observing that although the petitioners themselves unsuccessfully contested the elections held on the 4th, 5th and 6th April 1955, they did not make any attempt to challenge the said elections until 10 months after, when they moved the present application. The Validation of Laws Act, 1955, was passed as long ago as the 2nd October 1955, and the procedure] by way of writ became available then but the petitioners even at that stage did not choose to seek the remedies given thereby, but awakened to their rights only after the election of the Chairman had been held; although having failed to be elected as members they were in any way directly concerned with the election of the Chairman. This discloses serious laches on the part of the petitioners, and we agree with the respondents that we should not excuse such undue laches, and exercise our discretion in favour of parsons who have deliberately slept over their rights. On behalf of the petitioners it was argued that mere delay was no ground for refusing the writ, and our attention was drawn to the cases of the King v. Speyer and the King v. Cassel ((1916), L 9 I K. B 595), where appointments of two persons as Privy Councilors made in 1902 and 1909, respectively, were challenged in 1915. In that case, however, the ground of laches was not taken, and all that was urged by the learned Solicitor‑General was that under the Crown Office Rules a period of limitation of six years was prescribed for such applications. Lord Reading, C. J., did not even notice this point. Avery, J. noticed it but did not consider it necessary to give a decision thereon, and Lush, J. thought that it did not create any difficulty. In these circumstances it can hardly be said that this case is an authority for the proposition that no matter how great or how serious the laches the writ must issue. It is significant that in that very case Lord Reading, C. J. himself pointed out that "there has been a tendency to extend the remedy, subject to the discretion of the Court to grant or refuse information s to private prosecutors according to the facts and circumstances of the case." This in no way runs counter to the view we have taken of the discretionary nature of this writ, and there can be no dispute that where a Court is called upon to grant a discretionary relief it may justly refuse to exercise its discretion in favour of a person who has not sought the relief at the earliest possible opportunity. Having come to the conclusion that for more reasons than one the petitioners are not entitled to a writ of quo warranto for challenging the elections of the respondents Nos.1 and 12 to 36 as members of the District Board of Chittagong, we proceed next to consider whether the petitioners are entitled to this relief as against the nominated members. In so far as the eight members nominated under section 7 of the Bengal Local Self‑Government Act are concerned, we might state at once that apart from the bare assertions that the respondent No.1 influenced the Provincial Government to manipulate the composition of the District Board, and that the Provincial Government made the said appointments in abuse of its powers for the collateral purpose of assisting the said respondent, there is no suggestion even in the petition that these eight persons had any hand in procuring their nominations or that they acted in any way improperly in the matter of their respective nominations. In this state of the facts we cannot but hold that no vestige even of a case has been made out as against these eight persons, for we cannot act on these vague allegations unsupported by any particular of any kind whatsoever. The petitioners are, therefore, not entitled to any writ of quo warranto as against these eight persons either. Now, as regards the other two persons said to have been nominated under section 10-B of the above‑mentioned Act, the petitioners assail the validity of their nominations not only on the general grounds referred to above, but also on at least four specific grounds, namely, (1) that since certain areas of Sandwip had become a part of Chittagong on the 25th December 1954, by Notification No. 5038‑G.A., before any step had been taken for the reconstitution of the Chittagong District Board there was no necessity for making these nominations, and elections should have been held for the said areas. As such the nominations were illegal and invalid; (2) that since by the Notification No. 171‑L.S.G., dated the 20th February 1940, the constitution of the said District Board had already been determined to consist of 26 elected and 8 nominated members the said number could not be increased; (3) that the Ordinance I of 1955 which purported to introduce section 10‑B into the Bengal Local Self‑Government Act was ultra vires the powers of the Governor as it was made in utter bad faith and in abuse of his powers for a collateral purpose; and (4) that, in any event, even under the said Ordinance the illegality of the said nominations was not cured. With regard to the first ground, the petitioners con tention, as already indicated earlier in this judgment, was that the Notification No. 5038‑G.A., dated the 24th December 1954, effected a complete transfer for all purposes, as from the 25th December 1954, of the areas mentioned in the Notification. The Notification, however, states that it has been made in exercise only of the powers conferred on the Provincial Government by clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898. The said clause (s) reads as follows: "Police Station means any post or place declared, generally or specially, by the Provincial Government to be a Police Station, and includes any local area specified by the Provincial Government in this behalf." It will be manifest from this that the powers that have been given to the Provincial Government by this clause are limited to declaring certain posts or places to be Police Stations, and to define their local extents, and do not extend to reconstituting the boundaries of districts or to define their 1ocal limits and, therefore, this Notification could not possibly have the effect of transferring those areas for all purposes, whatever might have been the result for Police purposes. It is curious that although on behalf of the respondents it was disputed that the above Notification effected a complete transfer yet it was contended that the said objective was achieved by the combined operation of this Notification, and the Notifications Nos. 2557‑J., and 2558‑J., both dated the 4th July 1955. The Notification No. 2557‑J., which has been made in exercise of the powers conferred by subsection (1) of section 13 of the East Bengal Civil Courts Act, 1887, includes within the local limits of the jurisdictions of the Munsif's Courts at Hatiya, Sandwip and Sudharam in the District of Noakhali, the areas of certain Police Stations as revised by Notifications Nos. 4363‑PL, 4364‑PL, and 4365‑PL. It will be noticed that this Notification neither refers to the Notification No. 5038‑G.A., dated the 24th December 1954, nor does it purport to define the territorial limits of any Munsif's Court in the District of Chittagong, and as such, it is difficult to appreciate how this particular Notification has the effect of transferring any area to the District of Chittagong. The Notification No. 2558‑J., however, transfers the Court of Munsif at Sandwip from the District Judgeship and Sessions Division of Noakhali to that of Chittagong, and purports to have been made in exercise of the powers given both by section 13 (1) of the East Bengal Civil Courts Act, 1887, and section 7 (2) of the Code of Criminal Procedure. It is said that this read with Notification No. 5038‑G.A., effected the complete transfer for all intents and purposes. The transfer of Police administration and the administration of justice having been effected there was nothing else left to be done for completing the transfer. Subsection (2) of section 7 of the Code of Criminal Procedure empowers the Provincial Government to alter the limits or the number of Sessions Divisions and Districts, but this "District" is only for the purposes of the said Code as is apparent from the provisions of subsections (1) and (3) of the said section. Under subsection (1) every Province is also a Sessions District and under subsection (3) even a Presidency town is such a Sessions District. This does not in our opinion mean that a Sessions District must also be a district for the purposes of Local Self‑Government. Neither does sub section (1) of section 13 of the East Bengal Civil Courts Act, 1887, take us any further, for that too only empowers the Provincial Government to fix the local limits of the jurisdiction of Civil Courts. That these do not cover all the purposes for which a district may be constituted appears to be supported also by the fact that the local limits of Collectorships form the subject‑matter of a separate enactment, namely, the Bengal Land Revenue (Assistant Collectors) Regulation, 1821. A `District' does not appear to have been defined either in the Bengal General Clauses Act or any other Statute, as far as we are aware. Indeed it is not inconceivable that there may be separate districts for separate purposes not necessarily confined within the same local limits. Thus a Sessions District may well comprise of two or more Police Districts or Collectorships, but it seems that originally for general administrative and revenue purposes a Province was divided into Zillas, and there is a special Statute which empowers the Court to create such `Zillas' by Notification in the Gazette. This is the Bengal Districts Act (Central Act XXI of 1836) which was subsequently amended in 1864 by the Bengal Districts Act IV of 1864 to empower the Provincial Government also to alter the limits of existing Zillas. These Acts so far as we have been able to ascertain are still extent, and it seems to us that these are the appropriate Acts under which the alterations of the existing territorial limits of a Zillas or district must still be made, and unless such an alteration is made it cannot be said that piecemeal alterations for limited purposes will effect a complete transfer of the areas for all purposes. It may be that even after an alteration under the Bengal Districts Act has been made alterations under the other Acts will still be necessary for the purposes of those Acts, but nevertheless it seems to us that unless all appropriate Notifications have been made under alt L appropriate Acts we cannot say that the transfer of a parti cular area from one district to another district has been completely effected. Since in the present case no Notification has as yet been made under the Bengal Districts Act we cannot hold that any area of Sandwip has as yet been transferred from Noakhali District to Chittagong District, and in this view of the matter we must also hold that the petitioners are not justified in contending that the said areas of Sandwip should have been included within the District of Chittagong for the purposes of the election held in April 1955. This, however, does not mean that the nominations of the two members to represent the said areas under section 10B was valid even assuming for the present that the Ordinance I of 1955 was a valid piece of legislation. This brings us to the fourth ground urged on behalf of the petitioners, and it will be convenient to deal with it before we deal with the remaining grounds. Section 10‑B is in these terms "Notwithstanding anything contained elsewhere in this Act or in any rules made thereunder, when any area comprised in any territorial constituency for election of member or members of a District Board of a district or a portion of such area is transferred to any other district, the member or members elected to represent such area on the District Board shall cease to hold office and the Provincial Government may appoint such number of member or members, as it thinks proper, for representation of the area or portion thereof so transferred on the District Board of the district to which such area or portion has been transfer red and for representation of the portion of the area in the constituency not so transferred on the District Board concerned till the reconstitution of the Board after fresh delimitation of the territorial constituencies of the district concerned. It will be observed from this that the condition precedent to the applicability of the said section is that there must already have been a valid and complete transfer of a territorial constituency or a portion thereof from one district to another district, and until such a transfer has been effected the occasion for the exercise of the power of appointment given by that section does not arise. In the present case therefore, since we have held that no complete transfer had been effected it must follow that the appointments purported to be made in exercise of the said powers were ultra vires the provisions of the said section 10-B and the respondents Nos. 2 and 3 had no right or authority to act as members of the said District Board and were, as such, wrongfully usurping the, said offices. We next take up for consideration the question of the validity of the Ordinance I of 1955 itself. It is alleged that this Ordinance is ultra vires the powers of the Governor because it has been made mala fide, and in abuse of his powers for a collateral purpose, but apart from these allegations nothing has been said as to how the Governor acted mala fide or abused his powers or as to how the purpose for which the Governor made this Ordinance became a collateral purpose or if the respondent No.1 or anyone ever approached the Governor for that purpose. The rule is now well settled that there is a presumption in favour of the regularity of official acts, and the onus lies heavily on the person seeking to rebut this presumption to show in what precise manner the act was irregular. This onus is by no means easily discharged for it is invariably impossible for the person challenging it to produce admissible evidence sufficient to establish even a prima facie case, and certainly that onus is not discharged by mere assertions to the contrary. The petitioners have clearly not discharged that onus in the present case, and we must hold that the Ordinance which is ex facie regular was properly and validly made for a lawful purpose and is intra vires the powers of the Governor. Having held that the Ordinance was valid and intra vires, we must hold that the second ground urged is also not tenable for the said section 10-B has been expressly made applicable "notwithstanding anything contained elsewhere" either in the Bengal Local Self‑Government Act, or any rules made there under. As such it will apply notwithstanding the provisions of section 7 of the said Act which require the Provincial Government to fix the number of the members who shall constitute the District Board, and under which the Notification No. 171‑L.S.G., dated the 20th February 1940, purported to be made. The provisions of the Ordinance must, therefore, prevail over the Notification, and the fixation of the number of members made under section 7 of the Act cannot restrict the powers given by the Ordinance. Before we taken up for consideration the question of the validity of the election of the Chairman we must notice here another objection taken by Mr. Nandi, on behalf of these two nominated persons. He contended that since the appoint ments in the present case were, either under section 7 or section 10‑B of the Bengal Local Self‑Government Act, absolutely in the discretion of the Government no private person had any personal right in the matter. Therefore, a private person was not competent to exhibit an information in the nature of a quo warranto. In support of his conten tion he cited the case of Miss Avi J. Cama v. Banwarilal Agarwal and others (A I R 1953 Nag. 81). This case does not, in our view, support his contention, for, all that was laid down in that case was that a private relator must not be a person who has in any way acquiesced in or concurred in. the very act against which he seeks to complain. On the other hand, the decision in the cases of the King v. Speyer and the King v. Cassel, furnishes a complete answer to the learned Advocate's contention. There too the appointment to the G office of Privy Councilor was in the absolute discretion of the King in which the private relator had no personal right, but it was nevertheless held that he had sufficient locus standi to maintain the application. We proceed now to consider how far, if at all, are the acts of the District Board concerned including the election of the Chairman affected by reason of our holding that the nominations made under section 10-B were invalid. To this application the District Board; which is under section 20 of the Act a body corporate having the right to sue and be sued in its corporate name; has not been made a party, and no writ is asked for against it as was done in the case of Bhairulal Chunilai v. The State of Bombay. As such in the absence of the Board, we are not called upon to make any pronouncement as to the validity of the constitution of the Board itself, nor would it be proper for us to do so. But since the validity of the election of the Chairman (respon dent No. 1) has been questioned on account of the participation of such invalidly nominated members in such election we have to determine what effect, if any, such invalidation had on the said election. The writ of quo warranto as we have already observed is a discretionary writ, and before we decide to issue the writ we must be satisfied upon a consideration of all relevant circumstances that a fit case has been made out for the exercise of our discretion. In the present case after giving due weight to every circumstance we find the scales heavily loaded against the petitioners being entitled to the said relief. The petitioners were themselves candidates at the general elections, they were fully aware that the areas of Sandwip had not been included amongst the constituencies called upon to elect, and that no fresh delimitation of the consti tuencies had been made, but nevertheless they took no step either to have these things done or to challenge the elections. Again they had full knowledge of the nominations announced on the 5th January 1956, but took no steps, and allowed the nominated persons to participate in the election of the Chairman, and it is only now after the election has been held, and the respondent No. 1 has been elected by an overwhelming majority that they have come forward to challenge that election. It is significant they do not say even now that the result of the election has been materially affected by the participation of these particular members. It is furthermore only upon a technical ground that the nomination of these two members has been found by us to be defective. This can and will no doubt be remedied by fresh nominations after completing the transfer of the areas concerned and could certainly have been remedied, if steps had been taken in good time by the petitions before the election of Chairman was scheduled to be held. In such circumstances we venture to think that any Court would be loath to interfere with the expression of the will of the electorate, and interfere with their choice by way of a writ of quo warranto. Apart from this there are in our opinion other good reasons too for not disturbing the election of the Chairman. It appears that under section 18H of the said Act even after an election of a member has been declared invalid, acts done by him before such declaration of invalidity do not thereby become invalid nor are the proceedings of the Board, in which he may have participated before that, affected by such declaration. If this is what has been provided for by the Statute itself to be the consequence of declaring the election of an individual member invalid we see no reason why the same principle should not be adopted in a case where a nomination is declared subsequently to be invalid. There does not appear to us to be any justification for making a distinction between these two cases. Again as pointed out by Mr. Naziruddin Ahmed, the learned Advocate appearing for the respondent No.1 the participation of respondents Nos. 2 and 3 was at worst an irregularity which had not materially affected the result of R the election of the Chairman, and, therefore, the entire election should not be held to have been vitiated, and the respondents should not on the grounds of equity be harassed by having to seek election over again. Mr. Asir, the learned Senior Government Pleader further urges that even though it has not been satisfactorily established that this application has been made mala fide there are strong grounds for suspicion that the petitioners are not applying on their own account, but in collusion with the candidate defeated at the Chairman's election, and even in such cases the Writ has been refused in England. This contention of his appears to find support from some observations in the decision in the case of The King v. Trevenon (20 Revised Reports 461), cited by him. On a careful reading of the report, however, it appears that there the relator was suspected to be an agent of a person who had himself no right to apply for a writ of quo warranto and as such, the Court inclined to the view that what the principal could not do himself, he could not do through the agency of the relator. That is not the case here for the said defeated candidate is a party (respondent No. 30) to these very proceedings, and could himself have applied for this writ. We see no substance, therefore, in this particular objection. But apart from this the other reasons given by us earlier are, in our opinion, sufficiently weighty to disentitle the petitioners to this discretionary relief against the said respondent No.1. We, therefore, refuse the writ as against this respondent also. This disposes of the petitioner's case against the respon dents Nos. 1 to 36, and it remains for us now to consider only the case against respondents Nos. 37 and

38. As already indicated, we are treating the relief claimed against these respondents to be one for a writ of mandamus commanding them to forbear from giving effect to the said Notification No. 55‑L.S.‑G., dated the 4th January 1956, and/or to recall and cancel the same. It is contended on behalf of the petitioners that this relief is asked for more or less as a relief consequential to the granting of a writ of quo warranto against anyone of the other respondents declaring either his election or nomination as a member of the District Board invalid. According to them this should follow almost automatically if the writ of quo warranto is issued. We are unable to accept this contention for this is a totally independent and different kind of remedy for the issuing of which totally different considerations have to be taken into account. It is not in our opinion necessary that because we declare the election or nomination of a person mentioned in this said Notification invalid that we must also command that the said Notification must not be given effect to or cancelled. We are entitled to presume that once we have declared either an election or a nomination invalid all concerned will give effect to our declaration and regulate their own actions accordingly. In this view of the matter we propose to deal with this question on its own merits. The principles governing a writ of mandamus have been fairly elaborately indicated by this Court in its decision in the case of Mousell & Co. (Chittagong) Ltd. v. Registrar of Joint Stock Companies, East Bengal (P L R 5 Dacca 389). It is not necessary, therefore, for us to reiterate them here except to point out that the principle that a mandamus will not issue unless the party seeking it has not only stated upon affidavit that he has demanded of the party against whom the mandamus is sought that particular kind of justice which is , sought to be enforced by the writ, and that such demand was ` met by a refusal, but has also satisfied the Court of this upon evidence is a principle which has been universally accepted and insisted upon as an essential and invariable condition for the issue of the writ. In the present case the petitioners have not only not made any attempt to show us that they ever called upon these respondents either to forbear from giving effect to the said Notification or to recall or cancel the same but they have not even made any averment to that effect in their petition, and hence this writ must on this ground alone be refused. Since no other question was canvassed before us with regard to this part of this petitioners' case, which in tact was only faintly argued, we are not called upon to say anything more concerning it. The result, therefore, is that this Rule is discharged as against the respondents No. 1 and 4 to 38 with one set of costs assessed at 30 Gold Mohurs, but is made absolute against the respondents Nos. 2 and 3 without any costs. We do also direct that the said respondents Nos. 2 and 3 be restrained from further acting as the nominated members of the said District Board of Chittagong in pursuance of the said Notifica tion No. 55‑L.S.‑G., dated the 4th January 1956, from taking any further part in the proceedings of the said Board in pursu ance of the aforesaid Notification. Having said so much we might not have said anything more, but for the fact that today just as we were about to deliver judgment our attention was drawn by the learned Senior Government Pleader to a Notification purported to have been issued by the Government of East Bengal under the Bengal Districts Act, 1864, dated 2nd June 1956, giving retrospective effect, as from 25th December 1954, to the transference of certain Mouzas from the District of Noakhali to the District of Chittagong. It is, of course, not contended by the learned Government Pleader that this Notification in any way affects the rights of the parties to the present proceedings, but since the Government has been so ill‑advised as to take this step of giving this Notification retrospective effect during the pendency of these proceedings, regardless of the serious consequences which it might have, we think if only proper that we should without saying anything more as to the conduct of the Government; record our serious disapproval thereof by directing that out of the costs awarded against the petitioners the respondents Nos. 37 and 38 to this application shall not be entitled to receive any share. AMIN AHMED, C. J.‑

I agree. A. H. Order accordingly.