P L D 1957 Dacca 424 (PLP)

RAHMAN, J.‑

This Rule is directed against the Province of East Pakistan and the Deputy Secretary, Local Self‑Govern ment Department, East Pakistan, calling upon them to show cause why a of writ of mandamus or an order of a like nature should not issue upon them directing them to pass a legal order after canceling the order issued by Memo No. 4638 (13) J. dated the 16th November 1956, of the District Magistrate of Tippera. It is also directed against respondent No. 6. who claims to be the elected President of the Shilmuri Union Board, to show cause why an information in the nature of a quo warranto should not be exhibited against him for disclosing under what authority he is holding the said office of President of the said Union Board and, if necessary, for an order direct ing him to make over charge of the said office to the petitioner herein. The petitioner is a resident of village Joyag, P. S. Barura (?) in the district of Tippera within the said Shilmuri Union. He is a member of the East Pakistan Provincial Legislative Assembly, belongs to the Muslim League Parliamentary Party and is also a member of the District Board of Tippera. He claims that on the 25th of October 1944, he was for the first time elected a member of the said Shilmurt Union Board, that after such election he was also elected its President at a duly constituted meeting held on the 7th of September 1945, and that he functioned as such with credit and competence to the satisfaction of all concerned till the next general elections. The said general elections were held on the 28th of March 1950, and the petitioner was again elected both as a member of the said Union Board as also its President on the 19th of May 1950. Under section 11 of the Bengal Village Self‑Government Act, 1919, the term of `office' of a member of a Union Board is four years from the date on which the Board has been declared to be duly constituted together with any period which may elapse between the expiration of the said four years and the date of the first meeting at which a proper quorum is present of the newly‑constituted Union Board after a general election, and, in the case of a President, his tenure of office under the proviso to the said section is to continue until a new President is elected or appointed. The petitioner states that the period of four years provided by the said section would have expired in March 1955, and, as such, the Circle Officer of Laksham, Tippera, as the delegate of the District Magistrate under the said Village Self‑Govern ment Act, 1919, in accordance with the rules framed thereunder, issued a notification on the 24th of January 1955 to the effect that the next general election of the said Shilmuri Union Board would take place in March 195j, and that the intending candidates were to submit nomination papers on or before the 24th of February 1955. Now, by an amendment made to the said Bengal Village Self‑Government Act in the year 1950, namely, by East Bengal Act XXI of 1950, a new section 10‑B was added to the said Act and that section 10‑B provided a follows:‑ "Before submitting his nomination paper, each candidate for election as a member of a Union Board shall deposit with the Circle Officer the sum of rupees fifty in cash, and no nomination paper shall be taken into consideration by the Circle Officer unless such deposit has been made. In accordance with this statutory provision, a nomination paper to be valid had to be accompanied with this cash deposit. But the Circle Officer acting in pursuance of the orders of the District Magistrate made by Memo. No. 780 (14) G, on the 27th of January 1955, directed that security deposits must be made in the shape of Pakistan Savings Certificates and nomination papers not accompanied with such Certificates of the value of rupees fifty would not be accepted. The circular or notification of the Circle Officer, Laksham, was issued on the 1st of February 1955. The petitioner states that by the 2nd week of February 1955, he along with others objected thereto and made a representation to the District Magistrate requesting him to change this procedure and to follow the procedure provided under the statute, both because the same was illegal and contrary to law, as also because it created difficulties in the way of intending candidates due to the non‑availability of Pakistan Saving Certificates within such a short time. The protests of the petitioner and others were disregarded with the result, according to the petitioner, that in ward No. C of the said Union, only two nomination papers were filed for three seats and many other persons who intended to seek election in he said election did not do so. The general elections, however, were purported to be held between the 16th and the 18th of March and at a purported meeting of the members of the new Board, so illegally elected, respondent No. 6 was on the 22nd of August 1955, elected its President. The petitioner claims that both the aforesaid elections were void and were of no effect whatsoever due to non compliance with the mandatory statutory provision affecting the validity of the nomination paper itself of each and every candidate. The petitioner further claims that the illegalities so com mitted were duly brought also to the notice of the Commissioner of the Division and the Provincial Government, and the Provincial Government by its notification No. 5118 L. S. G., dated the 8th of October 1956, issued under the signa ture of the Deputy Secretary of the Local Self‑Government, informed the Commissioner that the so‑called general elections of Union Boards where the security deposits were accepted in the shape of Pakistan Savings Certificates instead of cash were no elections in the eye of law, and, therefore, void and so directed that fresh elections should be held in respect of such Union Boards. This order of the Provincial Government was adopted by the Commissioner of the Division, who in his own turn, by his Memo. No. 4176, dated the 26th of October 1956, duly communicated the said instructions to the District Magistrate of Tippera. The latter again adopting the instruc tions by his Memo. No. 4471 (13) J, passed on the 2nd of November 1956, communicated the above to the Sub‑divisional officers and Circle officers and called upon them to take necessary action. This was followed by another directive issued by the District Magistrate by his Memo. No. 4537 (13) J dated the 6th November 1956, whereby he directed the Circle Officer Laksam to see that the Boards which were functioning before the last elections in which Pakistan Savings Certificates instead of cash deposits were accepted to get back their authority within four days without fail from the date of the receipt of the order, A copy of this last‑mentioned directive was also duly communicated to the petitioner on the 9th of November 1956, by Memo. No. 1817 (35)/35 of the said date. In pursuance of these directives, the petitioner herein duly approached respondent No. 6 to make over charge of the said Board; but just when respondent No. 6 was going to make over such charge, the District Magistrate by his telegraphic order countermanded his previous order and directed the Circle Officer, Laksam, to "allow new Board's function". The confirmation of this telegraphic order was made by the District Magistrate's Memo. No. 4638 (13) J, dated the 16th of November 1956. This directive was also communicated to the petitioner and all other Presidents of the Union Boards concerned by the Circle Officer's Memo. No. 1881 (7), dated the 19th of November 1956. The petitioner claims that this last order of the District Magistrate is illegal, void, ultra vires and against the provisions of law and it has deprived him of a legal right which he has of acting in terms of section 11 of the Bengal Village Self Government Act as the President of the said Board until a new President had been validly elected. He further claims that the last general elections held in March 1955, for the said Shilmuri Union Board and the election of respondent No. 6 as its President in August 1955, were null and void and, therefore, could vest them with no right whatever to continue as such President or as members of the said Board. The petitioner on coming to know of this last order of the District Magistrate duly called upon the District Magistrate, the Commissioner of the Chittagong Division and the Deputy Secretary of the Local Self‑Government, East Pakistan, by his letter, dated the 5th of December 1956, to cancel the aforesaid order of the District Magistrate and direct the authorities concerned to re‑instate him in the office of the President. Justice demanded by the said letter, however, has not been granted to the petitioner and hence the present Rule, which was issued on the 7th January 1957. This Rule is opposed by respondent No. 2, Deputy Secretary,‑Public Health and Local Self‑Government of the Government of East Pakistan, who has also filed a counter-affidavit. The facts mentioned above are not in serious dispute except that the aforesaid Deputy Secretary asserts that no objection was ever raised by anyone at any time prior to the elections to the acceptance of the security in the shape of Pakistan Savings Certificates. He contends that the various orders of Government had been misread and misconstrued by the petitioner, for, according to the Deputy Secretary, the Provincial Government itself nowhere held that the elections concerned were bad in law. It is suggested by the Deputy Secretary that neither the Government of East Pakistan nor the District Magistrate of Tippera ever specifically held that the last Union Board election of Shilmuri Union is illegal or void; but, curiously enough, in the same paragraph, namely paragraph 12 of the said counter‑affidavit, a few lines lower dawn, the said Deputy Secretary himself states as follows: "The Provincial Government in their order No. 5188 ". S. G., dated 8th October 1956, directed that fresh elections should be held in respect of all the Union Boards where security deposits from candidates were taken in the shape of Pakistan Savings Certificates instead of cash and that the previous Boards will come into power and continue to hold office till fresh elections are held". It is, therefore, difficult to appreciate this contention in view of the clear directive referred to by the Deputy Secretary in his affidavit and confirmed by the Government's order itself, which has been made Annexure 'A' to the petition. This indicates that the Government did direct that fresh elections should be held in all such Union Boards and it is patent that no fresh elections could be held unless the previous elections had been held to be void and illegal. The Deputy Secretary further states that the subsequent cancellation of the order issued by the District Magistrate directing that the old Boards should be restored to office was made because in another suit filed by someone else to contest the Union Board election of some other Union Board, although the trial Court had held that the election was void and illegal, an appeal had been filed against that decision, being Title Appeal No. 214 of 1956, in the Court of the District Judge, Tippera, and in that appeal the said District Judge had stayed the operation of the order of the trial Court. Hence, in order to maintain the status quo, the Provincial Government by its order No. 6020‑L. S. G., dated the 14th of November 1956, directed the District Magistrate of Tippera to stay action o1n his previous order. Apart from this, the usual technical objections have also been taken to the maintainability of this petition, namely, that in view of the provisions of section 17‑B of the Bengal Village Self‑Government Act, this petition is not maintainable, that there have been laches and undue delay on the part of the petitioner which should disentitle him to seek this discre tionary relief from this Court, particularly, as the remedy provided by section 17‑B of the Bengal Village Self‑Govern ment Act would have been an equally effective and efficacious alternative remedy in the circumstances of this case. It is also contended by the said Deputy Secretary that, as no proper demand of justice had been made in the present case and as proper parties had not been impleaded, the present petition must fail. Respondent No. 6 has also filed a counter‑affidavit which is substantially to the same effect as the affidavit of the Deputy Secretary except that the said respondent disputes that his election as President of Shilmuri Union Board was in any way illegal, irregular or defective. It is also suggested by this res pondent that since the election of the respondent has not been challenged in accordance with the procedure provided by sec tion 17‑B, it is not competent for the petitioner now to challenge the legality thereof. Respondent No. 6 also maintains that the subsequent order of the District Magistrate allowing the new Board to function is a perfectly valid and legal order, as it sets aside a previous illegal order which had been passed on mis representation of facts and misconception of law by the Provincial Government. To this affidavit is also annexed a copy of the judgment of the first Court of the Subordinate Judge, Comilla, in Title Appeal No. 214 of 1956, delivered on the 31st of January 1957. The petitioner has also filed an affidavit in reply denying the allegations in the counter affidavits that no protest was made by anyone prior to the election against the substitution of the form of security. Furthermore, the petitioner also disputes the correctness of the statement that the subsequent order of the 16th November 1956 was made with a view to maintain the status quo as a result of the admission of the appeal, being Title Appeal No. 214 of 1956. According to him, the suit out of which the said appeal arose, was disposed of by the Munsif, 4th Court, Comilla, on the 21st of August 1956, and the appeal against the said decree was filed even before the order issued by the Provincial Government on the 8th of October 1956, declaring the election null and void. Hence, there can be. no basis for the contention that the subsequent order was made in view of the pendency of the appeal. Upon these allegations, Mr. A. Hakim, appearing on behalf of the petitioner, contends that on the own showing of respondent No. 2 in this ‑ case, the general elections held in March 1955, were clearly illegal and void and that all the relevant authorities concerned had decided that a fresh election should be held in all such Union Boards where security deposits had been accepted in any other shape but gash, for, it is significant that even to this date, in none of the affidavits in opposition it is disclosed that either the Govern ment or the Commissioner or the District Magistrate has issued any order countermanding the previous directive for holding fresh elections. In the circumstances, according to the learned Advocate for the petitioner, if fresh elections are to be held, this can be only on the basis that the previous elections have been declared invalid and, if that be so, then during the intervening period, it is clear that, under the proviso to section 11, the petitioner and the petitioner alone Las the right to act as the President of the said Union Board. Therefore, the order of the District Magistrate directing that the new Boards should be allowed to function during the interim period was not only contrary to law but also contrary to the various orders of the Government itself, for, clearly, unless the order of the Government declaring the election void was set aside, the new Boards could not function. Before we take up for consideration the various arguments advanced before us on behalf of the respondents in this case, we ought to mention here that in substance the relief sought by the petitioner against respondents Nos. 1 and 2 is for a mandamus to restore him to office. It is no doubt true that in certain circumstances such a mandamus can issue. But the circumstances in which a mandamus of this nature can issue have been indicated in Halsbury's Laws of England Second Edition, Volume IX, page 746, as follows:‑ "A writ of mandamus will lie to compel the restoration of a person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed, provided such office or franchise is of a public nature ; as for example to the office of mayor, alderman, recorder, town clerk, burgess or other municipal position, to academicals degrees, or to the fellowship of a college where there is no visitor, or to the offices of parish clerk and sexton . . . . . . A mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of quo warranto or election petition to oust the party in possession. A mandamus will go only on the supposition that there is nobody holding the office in question. A mandamus will, however, be issued commanding election to an office when, although there has been an election to the office in question, yet such election is void, or merely colour-able. The Court will then consider that there has been in fact no election, and that the office is not, therefore, full. Apparently, too, the same view will be taken when the person in possession of the office is merely holding over". It is clear from this that before a mandamus to restore to office will issue, the conditions that must be satisfied are: (1) that the office must be shown to be an office of a public nature an4 (2) that the office must be vacant or, at any rate, not filled by any person claiming a bona fide title thereto. In the present case it is also clear that the first condition is fulfilled, for the; office is undoubtedly an office created by statute and certainly an office of a public nature. The learned Advocate appearing for the petitioner has also referred in this connection to some decisions of the Supreme Court in India. We do not think it necessary to refer to these cases, for no new principle has been adumbrated therein. The principle followed is as enunciated in Halsbury's Laws of England, which we have just quoted. On behalf of the petitioner, of course, the next contention is that in the present case respondent No. 6 although he is i4 fact filling the office, has no semblance even of a right or claim to that office and, hence, this must be treated as a case of au office being held under a colour-able title, and, therefore, iu fact, not being held at all. Mr. Salam appearing on behalf of respondent No. 6 has, however, very forcibly contended that whatever might be tliG position in law with regard to the acceptance of the nomination papers with a security in a shape different from that provided by the statute, the fact remains that his clients namely, respondent No. 6, did face the electorate, was duly elected by a majority and is holding office by virtue of that election. Therefore, he is holding office under a claim of right and cannot, in any event, be said to be holding it under a purely colour-able title. Therefore, unless he can be dis lodged by an appropriate proceeding the petitioner cannot claim to be restored to that office. It is, in our opinion, not possible to say in the facts of the present case that the office is being held merely under a colourable title, for, it is true that respondent No. 6 did ha fact seek election and was apparently elected both as a member of the Union Board as well as the President of the said Union Board by a majority of votes cast by the electorates concerned. Hence, we find it difficult to say that the ova is vacant and that the circumstances in the present case are such that a mandamus may issue for restoration to office regardless of the fact as to whether the office is in fact occupied or not. The said respondent has every right to remain in office until his election thereto has been found to be void or illegal. In this view of the matter, it becomes necessary to con sider the next relief sought in the present petition, namely, to enquire into the validity of the alleged title under which respondent No. 6 claims to hold office, for which the Rule for the information in the nature of a quo warranto has been issued The very fact that the petitioner has asked for such a Rule for an information in the nature of a quo warranto in the present case does also support our own view that the title under which respondent No. 6 is holding the office is not purely a colour-able title. The case of the petitioner against respondent No. 6 is that as in the case of the Shilmuri Union Board all candidates seeking election filed nomination papers accompanied by security in a form different to that provided by section 10‑B there was, in fact not a single valid nomination paper filed in that general election and, therefore, not only a particular election was bad by that reason but the entire election was null and void and, therefore, there was no proper Board at all constituted which could possibly elect a President in those circumstances. In any event, it is contended on behalf of the petitioner that whatever might have been the doubts with regard to the validity of the said election, the same, so far as the petitioner' is concerned, have been set at rest by the order of the Govern ment issued on the 8th of October 1956, declaring the election to be void. If any argument is advanced that the Government was not the proper authority under the statute to set the election aside, this must also, according to the petitioner, fail, because, in the present case, in pursuance of the order of Government both the authorities named in the Bengal Village Self‑Government Act, namely, the Commissioner and the district Magistrate had opted the said order and issued directives in accordance with it, setting aside the elections and directing the holding of the fresh elections of the Boards as also for the restoration of the old Boards. There can, therefore, be no doubt that the authorities empowered under the statute to deal with this matter had also decided .the matter one way and, as such, could not subsequently, without giving anyone any notice or any opportunity of showing cause, recall that order in such an arbitrary manner. The learned Advocate for the petitioner strongly emphasizes the fact that although the previous order declaring the election void and directing a fresh election was made by the Provincial Government, adopted and endorsed by the Commissioner and again by the District Magistrate, the last order countermand ing the previous order was issued by the District Magistrate alone. Without any doubt or dispute, the Commissioner of the Division was under the same Act the revising authority over the order of the District Magistrate and, therefore, the District Magistrate could by no means claim to have the power to modify or cancel an order which had been issued at the instructions of and under the orders of the Commissioner. Hence, looked at from any point of view, the order of the District Magistrate made on 16th of November 1956, could not be supported. As against this, the learned Advocate appearing for respondent No.6, has contended that he is in no way bound by what the Government did or did not do. If by law a right has accrued to him, that right can be taken away only in accordance with the provisions of the law. He claimed that the Village Self‑Government Act was a special Act which created special rights and liabilities and provided a special remedy for the enforcement of those rights and liabilities and, in those circumstances, that remedy and that remedy alone had to be followed to take away such a right. If that remedy had not been followed, his right had in no way been affected and had, in fact, by lapse of time matured into a vested right which could not now be taken away by anybody. This argument certainly is plausible and attractive: but, as we have already indicated, in so far as the said respondent did not challenge the action of the District Magistrate whereby he issued the directive of the 16th of November 1956, directing the Circle Officers to restore old Boards within four days but even acquiesced in it and in pursuance thereof was about to make over charge of his office, it is not open to him now to turn round and say that that order was itself illegal and void. The order was issued by the District Magistrate who even under section 17‑B is the competent authority to deal with this matter and the only illegality that could be pointed out in that order was that there was no petition filed before the District Magistrate of the District in accordance with the provision of subsection (1) of the secion 17‑B as amended By East Bengal Act XXI of 1951. This point, however, has not been taken on behalf of respondent No. 2, the Deputy Secretary of the Local Self Government. The Deputy Secretary of the Local Self Government does not say that the Government was not competent to issue the directive that it did issue in the present case. Again, the allegations in the affidavit in reply of the petitioner that he and others did make a representation to the District Magistrate have not been controverted by any of the respondents in this case although the affidavit in reply was served on them on the 11th of March 1957 and this matter did not come up for hearing before us until the 1st of April 1957. There is no reason, therefore, why we should not accept the statement in the affidavit in reply that representations were, in fact, made to the District Magistrate and, therefore, the appropriate authorities were also moved in an appropriate manner for deciding the dispute with regard to this election. We cannot in these circumstances, except the contention that any valid or legal right had vested in respondent No. 6 to act as the President in this case. We are not unmindful of the fact that the office concerned in this case is an elective office and that the Courts are natural ly reluctant to interfere in such cases where an electorate has,' in fact, expressed its opinion except on very clear and cogent grounds, for, an election is in any system of democracy a luxury which one cannot be expected to indulge in too frequently. It is nevertheless of equal importance that where it is brought to the notice of the Court that an elective office is being held by a person who is not entitled to that office, this Court should prevent him from so continuing in office. It is also true that in considering such cases we will not allow a slight irregularity or some slight technicality to influence us. In the present case, however, as we have already pointed out, the provision which has been disregarded is a mandatory) provision of the statute itself, namely, of section 10‑B of the said Act. It is significant that although prior to 1950 there was) no corresponding provision in the Village Self‑Government Act itself, similar provisions were made only in the rules; but in 1950, the legislature, in its wisdom, decided that the matter should be incorporated in the statute itself, and, therefore, indubitably expressed its mind that this condition will also be one of the essential conditions of the validity of the election and, hence, placed it immediately after the section which prescribed the disqualifications for the holding of office, namely, the original section 10‑A of the said Act. We cannot also overlook the fact that this provision in the statute is not purely of a directory nature, for the statute leaves nothing to doubt. It very provides for the consequences of such non compliance and specially mentions that no nomination paper c which is not accompanied with the cash deposit shall be considered by the Circle Officer. In these circumstances, it cannot by any means be held that any election held in total disregard of this mandatory provision of the statute was a valid election. We are also aware that in some election cases it has been held that the improper acceptance of a nomination paper stands on a slightly different looking than the improper rejection of a nomination paper. Whilst an improper rejection of a nomination paper necessarily implies that the result of the election has been materially affected, the improper acceptance of a nomination paper does not necessarily have the same result. A person must, to succeed in having the election set aside on that ground also, show that the result of the election has been materially affected. In the present case, however, the allegations in the affidavit in reply, which have not been controverted by anyone, show that some persons intending to seek election were enable to do so because they could not procure Pakistan Savings Certificates. In fact only two persons filed nomination papers for three seats in a particular consti tuency. This is sufficient, in our opinion, also to show that the result of the election has been materially affected in this case in so far as some persons, who might have contested this election were prevented from doing so. In these circum stances, we cannot but hold that in the general election with which we are concerned in the present case since not a single valid nomination paper was filed, the entire election must be taken to have been d invalid. With regard to the other contention raised on behalf of both the respondents that in so far as section 17‑B provides a special remedy that remedy should have been followed and not the remedy by way of writ some two years later. The short answer to this is that the petitioner claims his present right not from the original election but from the date of the order of the Government declaring the election null and void and at that point of time the provisions of 17‑B could, by no stretch of imagination, have been held to be applicable. No one could, after the Government had declared the election to be void, have yet moved the District Magistrate in accordance with the provisions of section 17‑B. Tire communication of the order of the 6th of November 1956, to the petitioner specifically do show that under the orders of Government and of the other appropriate authorities concerned the petitioner had in fact been directed to be restored to office. This is the relief that the petitioner now claims. In fact, his prayer is that the order passed by the District Magistrate on the 6th of November 1956, in pursuance of the previous order of the Government passed on the 8th of October 1956, be given effect to by the District Magistrate concerned. The only hurdle in his way is the order of the 16th of November 1956, and if that order is said to be illegal and ultra vires, we see no sufficient reason why we cannot direct the District Magistrate to comply with the orders issued on the 6th of November 1956, which he is bound in law to do. In this view of the matter, this objection also fails. With regard to the other technical objections raised on behalf of the respondents, we do not feel called upon to go into them in detail, for, it must be held that on the facts shown they are without any substance. In the present case the pur ported order of cancellation was communicated to the petitioner only on the 19th of November 1956. The petitioner demand justice by his letter of the 5th December 1956, and obtained the present Rule on the 7th January 1957. There can, therefore, be no reason to hold that there has been any undue delay in moving this Court. As for the alleged insufficiency or impropriety of the demand of justice, we need only point out that the letter in which the aforesaid demand of justice was contained elaborately set out all the facts necessary for this purpose and was addressed to the District Magistrate of Tippera and copies thereof were also forwarded to the Deputy Secretary and to the Commissioner of Chittagong Division. Therefore, the demand of justice had also been made to all persons who could possibly do justice in this case. In taking the view that the election in this case is in toto void, we cannot also help observing that this is not a case where the election having been properly commenced there was some irregularity or deviation from the provisions of the rules in the conduct of that election. This, according to us, is a case where the election itself cannot be held to have validly commenced at all, for, due to the non‑compliance with the provisions of section 10‑B there was no election held in accordance with law. That such a distinction can be made seems also to be supported by a decision of the King's Bench Division relied upon by the learned Advocate for the petitioner. This is in the case of in re Barnes Corporation Ex Parte Hulter (L R (1933) I K B 663). The statute under consideration in that case, being the Municipal Corporations Act, required that at the election to be held the Chairman, shall as soon as all the voting papers have been delivered to him, "openly produce and read them, or cause them to be read, and then deliver them to the Town Clerk to be kept for twelve months". Furthermore, it also provided that the voting papers should contain "the surnames and other names and places of abode and descriptions of the persons". At this election what happened was that by some arrangement arrived at between the aldermen and councilors the chairman read aloud from the voting papers only the surnames of the persons voted for and did not read out the other particulars required to be given by the statute. In that case also another section of that said Act provided for election petitions and the objection was taken that the election should have been more appropriately challenged by an election petition and not by way of a writ of mandamus. Lord Hewart, C. J., who delivered the main judgment in that case, pointed out that question before him was not whether certain persons were duly elected by a majority of lawful votes, but whether the whole scheme of the election was not contrary to charter and to the statute and, therefore, the provision for election petitions provided in that statute was not applicable in such a case. In the case before us also we find that the question is not whether a person has been validly elected or not but the case of the petitioner is to the effect that the whole election has been contrary to the mandatory provision of the Act. We are, therefore, in agreement with the learned Advocate for the petitioner that the provisions of section 17‑B of tie Act do not, in such circumstance, constitute a bar to the maintain ability of this petition. This view seems also to be supported by a decision of the Bombay High Court in the case of l Lazman Bhide and others v. The State of Bombay (A I R 1954 Bom. 41). That also was a case of the election of a President and the point there under consideration was whether a President could be elected for any shorter period than one year when the Provincial Government extended the life of the Municipality concerned for a period less than a year. Chief Justice Chagla delivering the judgment of the Court held that this could not be done, as the language of the statute providing for annual elections, in exact precise words, declared the intention of the Legislature and those words had to be given effect to. In that case also it was argued by the Advocate‑General appearing on behalf of the respondent that in so far as the person whose election was sought to be challenged had acted as de facto President, the Court should not interfere in the matter. Chief Justice Chagla's reply to that was:‑ "It is the duty of the Court, as soon as its attention is drawn to the fact that a person who is not qualified is holding a public office, to declare that he is not entitled to that office and to prevent him from acting as such." and his Lordship issued a writ of quo warranto in that case. fn the present case also, respondent No. 6 cannot and does not contend, even before us, that his election was a valid election in the eye of the law but all that was contended on his behalf was that his election whether bad or not bad had not been set aside in accordance with the provisions of the law. We have already held that in the present case, since the petitioner founded his right on the basis of the order of the Government the provisions of section 17‑B were not attracted and, therefore, this is a fit case in which, in our opinion, this Court should interfere and make the Rule for quo warrmtto against respondent No. 6 absolute. The said respondent No. 6 will also be restrained from further acting as the President of the said Shilmuri Union Board. Having come to this decision, we have now to consider whether we should also issue a mandamus against the Provincial Government to restore the petitioner to office. Having regard to the facts of this case, it seems clear to us that once we have made the Rule for a quo warranto absolute, the order for restoration to office must also inevitably follow, because, until the fresh elections are held, we cannot create a vacuum in so far as the Union Board is concerned. We, there fore, also must make the Rule for mandamus absolute against respondent No.1. It is not necessary for us to issue a Rule on respondent No. 2 who is an officer of respondent No. 1 and will be bound to carry out the order of respondent No.1. We, therefore, only direct that the petitioner be forthwith restored to office. Having regard, however, to the special facts and circum stances of the case, we make no order as to costs. The learned counsel appearing on behalf of the respondents prays for certificate under sub‑Article (1) of Article 157 of the Constitution. We cannot say that any question of law as to the interpretation of the Constitution is involved this case and, as such, we refuse the certificate prayed for. MURSHE.D, J.‑

I agree. A. H. Rules made absolute.