P L D 1966 (W (PLP)

INAMULLAH, C. J.‑This is a petition under Article 98 of the Constitution whereby the petitioner, who is a Chairman of the Town Committee Chuharkana, has challenged the forthcoming election of Chairman by the Electors under the Electoral College Act of 1 64, which is fixed for the 18th of January 1966. The petition is based mostly on the reported decision of a Special Bench of the Dacca High Court, which appeared in Pakistan Times Issue, dated the 13th of January 1966. As a Constitutional point is involved for consideration in this petition, we are inclined to admit the petition and issue notice to the respondents.

2. There is also an application for stay under section 151 of the C.P.C. for maintaining status quo and restraining respondents Nos. 3 to 10 from functioning as Members of the Town Committee Chuharkana and further praying, that respondents be restrained from holding an election of the Chairman of the Town Committee, Chuharkana. In other words, injunction is required to be issued against all the respondents including the Government of West Pakistan and Controlling Authority, Sheikhupura, who are respondents Nos. 1 and 2 before us. We have heard the learned Advocate for the petitioner in support of the application for stay. We are not inclined to grant any interim stay for various reasons which we propose to mention presently.

3. In the first place, we have reason to believe that making of interim order would tantamount to interfering with, the carrying out of the functions and public duties, of the public authorities and would be, otherwise, harmful to the public interest. The elections of the Chairman of the Union Committees are held after some preparations which have been completed. In this case the election is to take place only on the 4th day from hence, and if an interference is made at this final stage, of the forthcoming elections, that will jeopardise the whole election machinery and result in great complications. Moreover, it is to be understood that it is not the election in this particular Constituency, but all over West Pakistan elections of Chairmen are taking place on the 18th instant. A stay order, in these circumstances, is likely to create complications, and the balance of convenience lies in not issuing it. On one hand, is the personal grievance of the present petitioner, while on the other side, is the question of public good and of public administration. The elections are taking place to B put the machinery of Basic Democracies, Union Councils, Union Committees and Town Committees into working. A machinery of public administration cannot be brought to a standstill simply for the sake of one individual. It was held in In re: T. Balaji Rao, Naidu Garu (A I R 1933 Mad. 103) by Reilly J., that "though a candidate for election to a Local Board like anyone else has a right to pursue his legal remedies, whatever they may be, save in exceptional circumstances, it is an abuse for candidate who for some reason is shut out, to make his pursuit of his remedies in the civil Courts a weapon for dislocating the electoral machinery and stopping an election, and that an order for injunction for that purpose should not ordinarily be granted." Similarly, in Raja Maheshwar Dayal Seth v. Yuvraj Dutta Singh (A I R 1946 Oudh 42), it was held that an injunction could not be granted as the balance of inconvenience resulting from postponing of the election would be greater than inconvenience resulting from the election being held on the fixed date. It was further held therein that the contention that if temporary injunction was not issued, the suit would become infructuous, was not sufficient in itself to warrant the issue of a temporary injunction. Respectfully following the principles laid down in the aforesaid cases, we are of the opinion, that in the instant case as well, the balance of convenience lies in not issuing the temporary injunction and that the petitioner will not suffer any irreparable loss if the injunction is not granted.

4. In the second place, the petition is a belated one so far as challenging the ultra vires of section 57 of the Electoral College Act, 1964, is concerned. This Act was promulgated on the 18th of April 1964, and elections there under took place immediately thereafter. The petitioner should not have come so late as on the 14th of January 1966, to challenge the provisions of the said Act, when the elections of Chairmen are going to be held on the 18th of this month. It was known all over the Country that the electors, under the Electoral College Act, 1964, will now be constituted the Basic Democrats, and if the petitioner had any grievance against this whole system (as he has now challenged it), he should have not waited till the last days, when much water under the Electoral College Act, 1964, has flown and Basic Democrats have been elected and now only the formality of issuing a notification has taken place where after the elections of Chairmen have been directed to be held.

5. In the third place, the election, even if held, will be subject to the result of an election petition. If the petitioner is se sure of his stand, that section 57 of the Electoral College Act is ultra Tires of the Constitution, he can take this point before the Election Tribunal on the basis of Dacca Authority. There is thus no special reason to suspend the whole election programmed.

6. In the fourth place, it is now settled, as enunciated in the Full Bench decision of this Court in Dost Muhammad Malik v. The Returning Officer and others (P L D 1965 Lah. 560), that in the matter of elections of Legislatures and other Electoral Bodies an exception is made in it that no dispute arising in the course of an election will be entertained until the election is completed. We respectfully adopt this conclusion of Muhammad Yaqub Ali, J., who wrote the leading judgment of the Full Bench. Election rights are not common law rights. They are the creation of a statute and should be exercised only in the manner in which the law which created them says that they should be exercised and vindicated.

7. Lastly, no one has a vested right to remain a Chairman of a Union Committee for an indefinite period. The petitioner on the fact of it, had accepted the Notification for holding the election of new Chairman for the said Committee. It is only after the judgment of the Dacca High Court which appeared yesterday that he has been encouraged to file this petition. It is further to be appreciated that even the Dacca High Court in the judgment under reference has itself suspended the operation of its order for five weeks. This shows that their lordships did not consider it advisable to stop abruptly the forthcoming elections and they also were considerate enough to postpone the operation of their judgment. On this point, the Dacca decision rather suggests that an immediate implementation was not called for in view of the peculiar circumstances of the situation. Respectfully, following the same spirit and principle, we also are not inclined to issue any temporary injunction.

8. For these reasons, we dismiss the application for stay. Mr. Buttar prays that a copy of order may be given to him dasti on payment of usual fee. Let a copy be given to him as prayed for. K. B. A. Application dismissed.