P L D 1957 (W (PLP)

KAYANI, J.‑

The petitioner, Sh. Mahbub Ilahi, a member of the West Pakistan Legislative Assembly, was defeated in a general election relating to the Municipality of Lyallpur where he was a candidate from Ward No. 4 against two other candidates, Nasrullah Khan and Muhammad Hanif, the latter of these two being successful. Muhammad Hanif achieved his success, it is alleged in the petition, by bring ing in bogus voters at the two polling stations mostly from among the employees of the Koh‑i‑Noor Textile Mills the Colony Mills and the National Rayon and Silk Mills. This was brought by the petitioner to the notice of the local authorities with the result that about 65 persons were arrested on charges of false personating. Upon their arrest, gate passes issued in, their favour by the three mills afore said were recovered from them. At one polling station two ballot‑books, one containing 100 papers and the other about 45 papers, were. stolen. The presiding officer got a case registered with the police and he also found that 15 of the ballot‑papers from one of the stolen books were found in serial order folded in one packet in the ballot box of Muhammad Hanif. Not only did the petitioner bring this matter to the notice of the Government there was also a wide‑spread demand in the press for an inquiry into the matter. We find from the file that even the election officer made a general report of corruption, particu larly about this constituency. The Government thereupon directed an inquiry under Rule 67 of the Municipal Election Rules, 1952, and appointed first the Deputy Commissioner and later Malik Karam Dad Khan, Additional Deputy Commissioner, Lyallpur, to con duct the inquiry. After the evidence of the petitioner, which consisted of the statements of 35 witnesses, had been recorded, the Government issued an order stopping further proceedings. The petitioner complains that this was- done because the inquiring officer had served notices on several important persons like Mian Aziz Ahmad of the Colony Mills, Lyallpur, Seth Mahbub Ilahi of the National Rayon and‑ Silk Mills, Mr. Manzur Ilahi. Mr. Muhammad Saeed, Engineer, Haji Sardar Muhammad, Security Officer, Mr. Rana Sadiq and Mr. Yusuf Sehgal, Chairman, all of the Koh‑i‑Noor Textile Mills, to show cause why they should not be named for having been concerned with the: commission of gross mal‑practices in the election, and that these persons had brought their influence to bear upon the Government. The facts and the mal‑practices are not denied on behalf of the Government. The reason given for discontinuing the inquiry was that the Government " on reconsideration of the case felt that it would not be proper to discriminate in one ward and hold a suo motu inquiry in that ward when similar allegations had been made in respect of other wards also in the same election ". Learned counsel appear ing for Government told us that the inquiry had been discontinued in deference to the opinion of the High Court expressed in several cases, that since an election petition is open to the aggrieved person, the Government should not normally direct an inquiry under Rule

67. It is true that this view has been expressed by at least five judges of this Court, and we notice from the file that the judgment of Ortcheson J. in Abdul Latif v. Mr. M. R. Inayat (P L R 1956 (W.P.) Lah. 1266=P L D 1956 (W.P.) Lah. 537) to which the Chief justice added an affirmative note, was cited in the Secretariat in favour of abandoning the inquiry. In that case, an election petition was already pending, and it was held that a defeated candidate could not be allowed to choose between an election petition and an inquiry under rule 67, his only remedy being the former. An inquiry under Rule 67 was an unusual step, which might be resorted to where, for instance, there have been mal‑practices on a large scale. In Ghulam Muhammad Butt v. West Pakistan Province (P L R 1956 (W.P.) Lah.1239=P L D 1956 (W.P.) Lah. 572) my brother Sharif and I had already expressed similar views in relation to a District Board election. In that case, although an application to Government for an inquiry had been made by the defeated candidate before he filed an election petition, the order directing an inquiry was passed a week after and two parallel inquiries were allowed to continue. It is true that one of the reasons that I gave against the validity of the inquiry at the instance of Government was that when a defeated candidate moves the Government to act, the Government does not act " of its own motion". What I meant was that apart from the application of the defeated candidate, there was no other material which could influence the Government to hold an inquiry. As to how the Government will receive information so as to enable it to act of its own motion, I observed :‑ " It is not necessary to say, however, that the information on which Government will act should emanate from certain limited sources, so long as we make it plain to Government that Rule 67 contains something akin to inherent power which should not be exercised at the instance of a person who had other means of relief open to him and this should be particularly so when he has resorted to such means ". Further I observed that " the subject‑matter of the inquiry in the two cases being identical, the ordering of a second inquiry while the first is pending is liable to create a misunderstanding that the Government had no faith in the District Judge, or that the Government desire that the inquiry should be conducted in a particular manner ". In the present case, even without the application of the petitioner there was such widespread discontent with the manner in which the election had been conducted, and the employees of the mills had so notoriously abused the law of election of a civilised country that the Government could not but feel compelled to order an inquiry as it did. In such a case it should have made no difference whether the petitioner had made an application or not. If some time later an election petition had been filed, the) Government might have thought it proper to appoint the same person both as the election commission and the inquiring officer, so as to avoid a conflict of inquiries. I need hardly point out that once the Government direct an inquiry under Rule 67, the officer appointed to hold it is, by virtue of Rule‑ 67‑A, deemed to be a " com mission " within the meaning of Rule 57, and once a matter C is entrusted to a commission, the rules, are so framed that the Government have no concern with the matter until a report is sent by the commission to the Government and orders passed thereon under sections 254 and 255 of the Municipal Act. I would, therefore, accept this petition with costs and A direct that the inquiring officer proceed with the inquiry as though he were hearing an election petition. MUHAMMAD SHARIF, J.‑

I agree with my brother Kayani J. that this writ petition should be accepted with costs and would like to add a few observations of my own. This writ petition by Sh. Mahbub Ilahi, a member of the West Pakistan Legislative Assembly, who was defeated in a general election relating to the Municipal Committee, Lyallpur, where he was one of the three candidates from Ward No. 4, is directed against the order of the Govern ment of West Pakistan, dated the 4th of May 1956, whereby the Government has stopped an inquiry ordered by them under Rule 67 of the Municipal Election Rules, 1952 (here inafter referred to as the Rules). He prays that the Government should be directed to withdraw that order and allow the enquiry officer, Malik Karam Dad Khan, Addi tional Deputy Commissioner Lyallpur, to complete the enquiry in which a considerable mass of evidence had already been recorded by him. The principal allegation of the petitioner is that the impugned order was not passed by the Government in good faith but only in order to help certain local mill magnates and their employees from being exposed to public odium. In reply, the learned counsel for the Government contended that the allegation was without any foundation and that the Government had discontinued the enquiry only in deference to the opinion of the High Court expressed in several cases, that since an election petition is open to a defeated candidate, the Government should not normally direct an enquiry under Rule 67 of the Rules. As this defence raises a question of good faith of the Government in the action that they took in the matter, it is necessary to examine the two authorities to which a reference has been made by the learned counsel appearing or the Government. In fact, one of those two authorities has even been referred to by the Government itself in their noting before they decided to recall their order for holding an enquiry under the above‑mentioned rule. In the first case, Abdul Latif v. M. R. Inayat and others (P L R 1956 (W. P.) 1266=P L D 1956 (W. P.) Lah. 537) the facts were as follows. Abdul Latif, the petitioner, and Abdul Shakoor, the respondent in the case, were rival candidates in Ward No. 8 for election to the Municipal Committee, Shujabad, in which election the former had been duly elected and the election gazetted on the 11th of July 1956. A few days later, two election petitions were filed under Rule 52 of the Rules‑one by Abdul Shakoor and the other by Abdul Latif. The petitions were, however, still pending before the commission who had been appointed to enquire into them when Abdul Shakoor moved the Provincial Government for an enquiry into the conduct of election under Rule 67, and the Government in pursuance of that request appointed Mr. M. R. Inayat, Assistant to the Commissioner, Development, Government of West Pakistan, Multan, to hold the requisite enquiry. The only question involved in the case was whether certain ballot-papers had either been wrongly accepted as valid or equally wrongly rejected as invalid. Now, from the facts as enumerated above, it is quite obvious that enquiry under Rule 67 was wholly uncalled for and had not been ordered in good faith‑the question involved in the election petitions of Abdul Shakoor and Abdul Latif and in the enquiry under Rule 67 being common to both of them. It is, therefore, obvious that the order complained against by Abdul Latif in that writ petition had been passed by the Government merely to oblige the res pondent and to disable the commission to hold an enquiry into the election petitions by confronting him with the final decision of the Government on the report of Mr. M. R. Inayat who would necessarily have submitted the same to Government much earlier than the commission in the election petitions could do because the commission appointed in the election petitions had other work on hand and could not possibly have attended to the petitions so expeditiously as Mr, M. R. Inayat would have, he having been appointed exclusively to conduct a solitary enquiry. The legality of the order appointing Mr. M. R. Inayat as an enquiring officer was challenged on the ground "that in view of the provisions of Rule 40 (3) the decision of the election officer was final subject only to reversal on an election petition which, in the present case, was still pending, and secondly, that an enquiry officer could be appointed only if no election petition had been filed, the appointment of such an officer being Conse quently illegal". These contentions prevailed with the learned judges who heard the case and after pointing out the absurdities that were likely to flow from the continuation of two parallel enquiries‑one under Rule 52 and the other under Rule 67‑they accepted the petition of Abdul Latif. The circumstances under which Rule 67 was to be invoked by the Government were stated so clearly and succinctly by the learned Chief Justice that I think the whole passage may be reproduced with advantage :‑ "I agree generally with the order proposed by my learned brother and would like to add that it would be clearly undesirable for Government to lay itself open to the charge that it is fighting a particular candidates' battle by resorting to its powers of instituting an inquisition under Rule

67. The relevant rules read as a whole made it clear that the Government is untrammelled by restrictions of limitation in instituting an enquiry under Rule 67 and that the scheme of the Rules is that such a step should be taken only in exceptional case, in the absence of an election petition, in the public interest, if credible information reaches the Government, justifying a probe into the circumstances of an election. The power is of the nature of a residuary power not to be lightly invoked. One instance of the legitimate exercise of this power may be where there is reason to think that the election has been vitiated by the exercise of mal‑practices on a large scale though the interested parties may have entered into a silent conspiracy not to expose one another by election petitions". Now it will be noticed that although the rules were interpreted correctly, the facts which gave rise to that decision cannot be kept out of consideration while applying that authority to the facts of another case, because, however parallel the set of facts in two cases, they are never identical, and consequently the decision in one case cannot be allowed to reflect on the facts of the other blindly but only within legitimate limits. In my opinion, the ratio decidendi in the above ‑mentioned case is not only that the Government should not order an enquire under Rule 67 when an election petition is pending but also that it should act in good faith and in the interest of the public at large and, having regard to the legal provisions which aim at fair elections we know in which direction lies that interest. 1 venture to state that even if an election petition is pending, the Government may consider it necessary under very special circumstances to order an enquiry under Rule 67 provided that such action is not tainted with favouritism or arbitrariness which unfortunately of late has become not too infrequent in our administration. In order to elucidate this observation lest it may become the subject of another misinterpretation by the Government, 1 wish to cite an apt example where this could be done more appropriately. Take the case where a general election held in a particular municipal committee or District Board is so replete with corrupt practices that electrons held in almost all the wards or circles stand vitiated by those practices, and consequently the Government thinks it desirable in the public interest to probe into them by holding a general enquiry into the election under Rule 67 and there are also pending at that time only one or two election petitions by some of the defeated candidates, the other aggrieved persons not having cared to file any petitions or not having filed teem due to paucity of necessary funds, required for the prosecution of such petitions. It would under those circumstances be perfectly legal for the Government to order enquiry under Rule 67 and even to include the subject‑matter of the pending petitions into the general field of the said enquiry. In Ghulam Muhammad Butt v. West Pakistan Province (P L R 1956 (W. P.) 1239=P L D 1956 (W. P.) Lah. 572), the petition was accepted on the ground that the Govern ment had ordered an enquiry under Rule 67 when an election petition by the defeated candidate was still pending for decision with the District Judge, Gujranwala, and it had further been established that the enquiry so ordered was prima facie neither in good faith nor in public interest, not withstanding the usual assertion of the Government to the contrary. The power of Government to order enquiry under Rule 67 was specifically recognised in that decision subject to certain conditions enumerated therein. In that decision I had stated thus :‑ "Though it is not necessary to define the exact scope of the words mentioned‑above, there can be no manner of doubt that a ',defeated candidate cannot be permitted to avail himself of the machinery envisaged in this rule thereby completely relieving himself of the obligation of filing an election petition. Without intending to limit the circumstances in which action may be taken under this rule, we may presume that Government would normally not act without authentic information, and no information can be more authentic than that given by the district officer who is the best person to bring cases of flagrant irregularities and corrupt practies to the notice of the Government in cases where those are likely to go unnoticed due to the absence of an election petition. Action should be taken only in the broader interests of justice and fair elections and all semblance of favouritism or bias in favour of any particular person for political reasons should be avoided. Where there is already an election petition pending before an officer selected for an enquiry by the Government itself, another enquiry on the same facts and at the instance of the same party should be avoided till the election petition has been finally disposed of. We have no hesitation in record ing disapproval of the manner in which the Government permitted itself to be utilized by Imtiaz Ali for his personal ends". The circumstances under which the enquiries can be ordered under Rule 67 of the Municipal Election Rules or Rule 69 of the District Board Election Rules by the Government cannot be tabulated with mathematical accuracy but those were sufficiently exhaustively stated in the two decisions of this Court mentioned above and it is quite plain what we intended to lay down in those authorities unless through some con strained interpretation of those authorities, it is sought to overlook the principles laid therein. Now it is hardly necessary to point out that no election petition was pending in the case under review when the Government ordered an enquiry under Rule 67 and that the election petition by an aggrieved party had already become barred by limitation when the Government thought it proper to stop it. It is also significant that at one stage the Government had considered it necessary to hold an enquiry into the conduct of the election in view of a widespread demand in the Provincial press for such an action as also in view of the reports of their own election officer, which report had enumerated the various mal‑practices and instance of corruption which had accompanied the election. Under these circumstances, the question which arises for determination is how are the public grievances‑those of the defeated candidate apart‑to be redressed. The answer is simple and it is this that the enquiry ordered by the Government under Rule 67 of the Rules must be allowed to proceed, because not only is the order of the Government stopping the same improper ; it is also illegal. According to the Rules as framed, the Government had no concern with the matter until a report was submitted to them by the commission. A. H. Petition allowed.