P L D 1955 Lahore 530 (PLP)

SHABIR AHMAD, J.‑

This appeal and Regular First Appeal No. 5 of 1955 will be disposed of by this order because they are cross‑appeals against the same decree. The facts giving rise to these two appeals are these. Abdul Waheed Khan and Haji Mehrban Ahmad were two of the candidates for the City of Lahore Corporation Constituency No. 4 in the‑ general election to the Punjab Legislative Assembly held in 1951. Besides these two, there were twenty‑eight other candidates, but they did not seriously contest the election. The polling took place on the 13th, 14th and 19th of March, 1951 in which Haji Mehrban Ahmad got 7503 votes and Abu] Waheed Khan 7392. The returning officer, Mr. S. S. Jafri, C. S. P., who was then the District Magistrate of Lahore, declared that out of the votes polled for Haji Mehrban Ahmad 539 and of those polled for Abdul Waheed Khan 304 were invalid, with the result that Abdul Waheed Khan, who was found to have obtained 7088 valid votes as against 6964 obtained by Haji Mehrbar Ahmad, was declared to be elected. Being of the view that injustice had been done to him. Haji Mehrban Ahmad pre?sented an election petition to the Governor of the Punjab as required by the law applicable to elections and disputes relating to them. This petition was entrusted as No. 29 to the First Election Petitions Commission, the members of which were Sayed Fayyaz Hassan Shah President and Raja Said Akbar and Mr. Nazir Ahmad Members, Before the First Election Petitions Commission thus con?stituted had proceeded very far with the petition of Haji Mehrban Ahmad it was discovered that the two Members of the Commission were not qualified to be appointed as such, and the matter coming up before this Court, it was held by a Full Bench in Khan Hamid Ullah Khan v. Mst. Nazir Begum (P L D 1953 Lah. 98) that 'the appointment of Raja Said Akbar and Mr. Nazir as Members or the First Election Petitions Commission was invalid. After that decision, the First Election Petitions Commission was reconstituted, Sayed Fayyaz Hassan Shah remaining the President and Mr. Ghulam Haider Lodhi and Mr. Yusuf Shah being appointed as its two Members. he Commission as reconstituted framed issues and proceeded with the trial of the petition. After recording some evidence, this Commission passed an order on the 28th of March, 1953 that Haji Mehrban Ahmad had made out a prima facie case .for scrutiny and recounting, and on recounting found that the valid votes obtained by Abdul Waheed Khan were 7103, and those by Haji Mehrban Ahmad 691). The scrutiny was not complete when Abdul Waheed Khan applied to the Governor of the Punjab for transfer of his election petition from the First Election Petitions Commission. The transfer application of Abdul Waheed Khan being accepted, his election petition was transferred to the Second Election Petitions Commission, Lahore, of which r. Abdul Majid Asghar was the President and Mr. Jamil Asghar and Mr. N. A. Siddiqi Members. By an order passed on the 13th of August, 1953 the Second Election Petitions Commission reported to the Governor that Abdul Waheed Khan be unseated and Haji Mehrban Ahmad be declared elected to the seat which these two and others had contested. On receipt of the report the Governor of the Punjab issued Notification No. 633‑Elections/53 published in the Punjab Gazette dated the 18th of September, 1953 with the result that Abdul Waheed Khan being unseated, Haji Mehrban Ahmad became a Member of the Punjab Legislative Assembly. On the 11th of December, 1953 Abdul Waheed Khan instituted a suit for a declaration that the Second Election Petitions Commission's report dated the 12th of August, 1953 to His Excellency the Governor of the Punjab in Election Petition No. 29 relating to the City of Lahore Corporation's Constituency No. 4 made under paragraph 8 (3), Part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936 which was adopted by His Excellency the Governor vide order published as Notification No. 633‑Elections/53 in the Punjab Gazette dated the 18th September 1953, was in the eye of law ho report and as such could not effectively form the basis of `any order by His Excellency the Governor. He also prayed for a consequential relief that Haji Meharban Ahmad who was claiming to have been elected as a Member of the Legislative Assembly Punjab, from the said Constituency, be restrained from acting as such. By his order dated the 27th of November, 1954, Mr. Muhammad Dastgir, Civil Judge Fourth Class, Lahore, granted the plaintiff the declaration asked for but refused the injunction. Against the decree of Mr. Muhammad Dastgir both the parties went up in appeal to the Court of the Senior Civil Judge, Lahore, but before he could hear the appeals a petition was made to this Court that the appeals be transferred. to this Court, at which My Lord the Chief justice passed an order transferring the appeals to this Court The appeals having been transferred to this Court, that of Haji Mehrban Ahmad against Abdul Waheed Khan was registered as Regular First Appeal No. 1 of 1955 and that of Abdul Waheed Khan as Regular First Appeal No. 5 of 1955. The first question raised by Mr. Mushtaq Husain, Advocate, on behalf of Haji Mehrban Ahmad was that the suit instituted by Abdul Waheed Khan was incompetent as the Civil Courts had no jurisdiction to hear it. It was contended by the learned counsel that the determination of election disputes having been left by the relevant provisions of the Order in Council known as the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936 to Election Petitions Commissions, the Civil Courts could not be approached for redress and the remedy, if any, could be sought by a petition to the Governor of the Province concerned. The relevant parts of the Order in Council relied on are paragraphs Nos. 2 and 4 of Part 3 which read as follows: "

2. No election shall be called in question except by an election petition presented in accordance with the provisions of this Part of this Order." "4. (1) Unless the Governor, dismissed a petition for non‑compliance with the prescribed requirements, he shall appoint as Commissioners for the trial of the petition three persons who are or have been, or are eligible to be appointed, judges of a High Court, and shall appoint one of them to be the President: Provided that nothing in this sub‑paragraph shall be deemed to prevent the appointment of the President of a Commission before the other Commissioners are appointed. (2) Subject to the provisions of this paragraph, all applications and proceedings in connection with the petition shall be dealt with by, and carried on by or before, the Commissioners. (3) Where in respect of an election in a constituency more petitions than one are presented, the Governor shall refer all those petitions to the same Commissioners, who may at their discretion inquire into the petitions either separately or in one or more groups, as they think fit. (4) If the services of any Commissioner are not available for the purposes of the inquiry or if during the course of the inquiry any Commissioner is unable to continue to attend thereat, the Governor, shall appoint another Com?missioner and the inquiry shall recommence before the Commission as so reconstituted: Provided that the Commissioners may direct that any evidence already recorded shall remain upon record, and in that case it shall not be necessary to re‑examine those witnesses who have already been examined and discharged. (5) References to the Commissioners in this Part of this Order shall, as respects any matter to be done before the commencement of the inquiry, be deemed to be references to the President". To this contention of the learned counsel for Haji Mehrban Ahmad, Mr. Nasim Hassan, who appeared for Abdul Waheed Khan, replied that the object of the suit was not to obtain any relief with regard to election disputes between his client and Haji Mehrban Ahmad but to have it declared that the order of the Election Petitions Commission being null and inoperative could not have been acted upon. The question of jurisdiction of the Civil Courts was raised in pleadings of the parties and the first issue framed read as follows "Whether this Court has got, jurisdiction to try this suit ? The finding of the learned trial Judge on this issue was that as the plaintiff alleged that the Election Petitions Commission had acted in an unauthorised manner and exceeded its jurisdiction the jurisdiction of Civil Courts to hear the suit was not barred. The position with regard to jurisdiction of Civil Courts in relation to matters which under the law are to be dealt with by a special tribunal may here be briefly stated. Where a tribunal of special jurisdiction acts within its jurisdiction, its orders, whether right or wrong, on' merits are binding, subject to an appeal, if any, provided by the law applicable to the special tribunal and the Civil Courts have no jurisdiction to declare the orders to be wrong. If, however, a question is raised that the special tribunal has exercised jurisdiction which it did not possess, the Civil Courts, which are Courts of general jurisdiction, can look into the matter, and if they come to the conclusion that the special tribunal had. acted 'in a matter in which it had no jurisdiction, they can grant a declaration to that effect, unless it is provided by a valid law that the jurisdiction of the Civil .Courts to do this with regard to a particular special tribunal does not exist. The above principles are well settled and were not seriously controverted by the counsel for Haji Mehrban who argued that the determination .of election disputes having been entrusted, by paragraph No. 2 and sub‑paragraph (2) of paragraph No. 4 of the Order in Council, to Election Petitions Commissions, the Civil Courts could not 'sit in judgment over the findings of such a Commission because though there was no specific provision ousting the jurisdiction of Civil Courts, the ouster was implied by the words of the Order in Council. The question that arises is whether or not the Civil Courts have jurisdiction, in the circumstances of the present case, to declare that the order of the special tribunal was inoperative and without binding force, not because the tribunal acted, in a matter which was not within its jurisdiction but because it did not follow the provisions of law applicable to its proceedings. Having given my anxious consideration to the point that arises, I have arrived at the conclusion that unless barred specifically or by necessary intendment jurisdiction exists in the Civil Courts to declare that the orders of a special tribunal were inoperative because it did not follow material provisions of the law conferring special jurisdiction. In the view I take, I am supported by the decision of their Lordships of the Privy Council in Secretary of State v. Mask & Co. (A I R 1940 P C 105). In that case their Lordships remarked as follows :‑ "The exclusion of jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." Their Lordships were dealing with a case under the Sea Customs Act, 1878, sections 188 and 191 of which provided for an appeal and revision to the supreme head of the executive Government, but in spite of that it was held that the jurisdiction of the Civil Courts was not barred if the allegations were that the tribunal had not conducted its proceedings in the manner enjoined by the law creating it. During the course of arguments the learned counsel for the defendant urged that as the allegations made by the plaintiff amounted only to this that certain rules made by the Governor of the Punjab as distinct from the instructions contained in the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, had not been followed, no cause of action accrued to the plaintiff to bring a suit. The procedure to be followed by the Election Petitions Commissions in the trial of the petitions entrusted to them is contained in the Punjab Legislative Assembly Electoral Rules, 1950, which were promulgated by the Governor of the Punjab on the 23rd of December, 1950 in exercise of the powers conferred on him by paragraph 20 of the 5th Schedule to the Government of India Act, 1935, and of all other powers enabling him in that behalf. In so far, therefore, as the contention of the learned counsel for the defendant goe, that the breach complained of was breach of the rules, it is not incorrect. He relied on a decision of their Lordships of the Privy Council in R. T. Rangachari v. Secretary of State for India in Council (AIR 1937 P C 27) wherein it was held that the dismissal of a servant of the Crown which offended the rules as distinguished from provisions of the statute governing such matters did not give that servant a cause of action to have the order of dismissal declared void and inoperative by a Civil Court. The principle laid down by the Privy Council was meant to apply to cases of dismissal of public servants and cannot and was not intended to have general application. I would, therefore, hold that the mere fact that the plaintiff alleged only a breach of the rules ands not of any provisions of the statute would not disentitle him to get relief from a Civil Court provided he succeeds in establishing that he was entitled to such relief. Having held that if the plaintiff succeeds in proving the allegations in the plaint, the Civil Court will have jurisdiction to look into the matter and if circumstances demand to grant him appropriate relief, I proceed to consider if the allegations of the plaintiff are established. It is, however, obvious that violation of a rule of procedure by the Election Petitions Commission will not be enough if it be established that the violation of the rule of procedure was on a matter disregard of which could not have affected the decision of the Special Tribunal. In the plaint ‑the main complaints of the plaintiff were that the Third Election Petitions Com?mission did not follow the procedure prescribed by law in the following respects :‑ (1) It did not summon the candidates to the election who had been‑ made parties to the petition by Haji Mehrban Ahmad defendant. (2) It did not frame issues but acted on those framed by its predecessor. (3) It adopted the decision of the Election Petitions Commission No. 1 on issue No. 5. (4) It refused permission to the plaintiff to produce evidence in rebuttal on issue No. 2 which was to the effect that the Returning Officer did not give the petitioner a reasonable opportunity to inspect the ballot papers though under the rules he should have been allowed to do so and to object to their validity. (5) It did not hold any final scrutiny in the presence of the parties. . (6) It did not give the plaintiff an opportunity of rebuttal in the recriminatory petition put in by him. In order to fully appreciate the contentions of the parties with regard to the matters mentioned above, a few other facts may be mentioned. In the petition which Haji Mehrban Ahmad put in, he claimed not only that the plaintiff had been invalidly declared elected but also that if the votes were counted properly he himself would have been declared the elected candidate. As the defendant had before the Election Petitions Commission claimed the seat for himself, he impleaded the other candidates to the election as he was bound to do by Rule 10 of Part E Chapter II of the Punjab Legislative Assembly Electoral Rules 1950, framed by the Governor of the Punjab on the 24th of June, 1950 by virtue of the powers vested in him under the law. Only a few of these other candidates appeared and even they took no interest in the petition because the dispute was entirely between the plaintiff and the defendant, the former ' of whom had been declared by the Returning Officer .to be elected and the latter claimed that on a proper counting of the votes he was entitled to be declared as elected. Rule 14 authorises a returned candidate or any other party to give evidence to prove that the election of the candidate who claims the seat for himself would have been void if he had been the returned candidate and a petition had been presented complaining of his election. The learned trial Judge has found that the Second Election Petitions Commission did not summon the other respondents, did not frame issues but acted on those framed by its predecessor, adopted the decision of the Election Petitions Commission No. 1 on issue No. 5 and held with regard to the other objections of the plaintiff that they had not been substantiated. These findings of the learned trial judge have not been questioned by either of the parties to this suit and I would, therefore, proceed to consider if the objections of the plaintiff which were substantiated would give jurisdiction to Civil Courts to declare that the decision of the Election Petitions Commission No. 2 on the petition of the defendant was vitiated on the ground that procedure prescribed by law had not been followed. I will first of all take up the objection that the Second Election Petitions Commission did not themselves frame issues but acted on those framed by their predecessors. It is true that it was the duty of the Commission dealing with the petition to frame the issue that arose on the pleadings of the parties but the mere fact that they did not do so is not by itself such a material error as to entitle the plaintiff to a decree if it is established that on the pleadings no issues other than those framed by the reconstituted First Election Petitions Commission arose. The learned counsel for the plaintiff was unable to show what issues other than those framed should have been framed on the pleadings of the parties and it follows, therefore, that the omission of the Commission to frame the issues was not such a departure from procedure as would entitle the plaintiff to the decree he claims. If the Second Election Petitions Commission had framed their own issues in the present case, they would have been the same as those framed by their predecessors and the mere fact that the Second Election Petitions Com?mission did nor observe a formality would not entitle the plaintiff to a decree in his favour. I will now deal with the objections of the plaintiff that because the Second Election Petitions Commission adopted the decision of the First Election Petitions Commission on issue No. 5, he was entitled to the decree prayed for by him. The fifth issue before the Commission reads as follows :‑ "Is the petitioner entitled to secrutiny and recount of votes ?" Dealing with this issue the First Election Petitions Commission consisting of Mr. Fayyaz Hasan Shah President and Mr. G. H. Lodhi and Mr. Yusuf Shah Members said that Haji Mehrban Ahmad had made out a prima facie case for scrutiny and recount. During the pendency of the petition before the Second Election Petitions Commission an application was made by the plaintiff praying, inter alia, that the order of the First Election Petitions Commission with regard to scrutiny etc., be ignored and, if necessary, reviewed. On this the Second Election Petitions Commission passed an order on the 29th of June, 1953 a copy of which is on the record of this case as Exh. D.

7. In their order the Second Election Petitions Commission dealt with the question in the following words :‑ "The powers of this Commission to order a scrutiny are wide enough and only if we feel satisfied that the interests of justice require we must feel bound to order a recount and scrutiny. It is useless for us to reopen the question already decided by the First Tribunal. There are no good grounds to interfere with that order. Counting has already been made by the First Tribunal. We now, in continuation of the order of the First Tribunal, proceed to scrutinise the ballot papers". What the Second Election Petitions Commission meant was that it was entirely discretionary with them to order or not to order scrutiny and even if this order were incorrect ?though the learned counsel for the appellant could now show that it was so‑it would be no ground for a Civil Court to declare that the impugned order was vitiated. The Second Election Petitions Commission could order a scrutiny and a recount of votes at its discretion and I fail to see how their final order could be held to be vitiated on the mere ground that instead of saying that because they had discretion in the matter of scrutiny and recount, they made a reference to the order of their predecessor which said exactly the same thing. I would hold, therefore, that even on this gronnd the plaintiff was not entitled to the decree he prayed for. I now pass on to the objection that as no fresh notices were issued by the Second Election Petitions Commission to the other contestants who had been made parties to the petition by Haji Mehrban Ahmad defendant, the order of the Second Election Petitions Commission was vitiated and must be held to be void and inoperative against the plaintiff. Dealing with the prayer of the plaintiff to issue notices to all the respondents in order to give them an opportunity to place their case before them, the Second Election Petitions Commission in their order dated 29th of June, 1953 a copy of which is Exh. D. 7 on the record, said as follows :‑ "We do not consider it necessary to issue any fresh notices to the absentee respondents because the proceedings have already been virtually ex‑parte against them". The reliance of the plaintiff was on paragraph 4‑A Part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, which was issued by His Majesty in Council under section, 299 of the Government of India Act, 1935. This particular paragraph did not exist in the original Order but was inserted by the Punjab Partition (Election Commissions) Order; 1947, which was passed by the Governor of the Punjab by virtue of subsection (2) of section 9 of the Indian Indepen?dence Act (10, 11 Geo. 6, Chapter XXX). The paragraph is in the following terms :‑ ?4‑A (1) If at any time during the enquiry, the Governor is satisfied that it is inexpedient or impracticable for the enquiry into any petition to continue before the same Commissioners, the Governor may withdraw such petition from the jurisdiction of the said Commissioners and there?upon the appointment of the said Commissioners shall be deemed to have been cancelled. (2) As soon as may be after the making of an order under paragraph (1), the Governor shall appoint three Commis?sioners for the further trial of the petition, and shall appoint one of them to be the President, as provided by paragraph 4 of this Part, and enquiry shall proceed before such Commissioners as if the petition had been referred to them for trial in the first instance: Provided that notwithstanding anything contained in the rules made by the Punjab Government under para graph 6 of Part III of the Order in Council, it shall not, be necessary to publish the petition in Gazette, if it has already been so published: Provided further that the Commissioners so appointed may direct that the evidence of any witness who has already been examined shall remain upon record, and in that case it shall not be necessary to re‑examine such witness. (3) An order under sub‑paragraph (1) or sub‑paragraph (2) may be made by the Governor in respect of a single petition or any number of petitions". The contention of the learned counsel for the plaintiff was that as sub‑paragraph (2) reproduced above gave the Second Election Petitions Commission to whom the case had been transferred only the power to dispense with publication of the petition in the Gazette and to treat the evidence of the witnesses already examined as evidence in the case, it was not open to that Commission to dispense with the attendance of the candidates who being necessary parties had been impleaded by Haji Mehrban Ahmad. It is true that the Election Petitions Commission which sent the report to His Excellency the Governor did not, on the petition being entrusted to it for trial, issue a notice to the other persons impleaded by Haji Mehrban Ahmad because of Paragraph No. 10 of Chapter II of Part E of the Punjab Legislative Assembly Electoral Rules, 1950, to which notice they were entitled under the law applicable, but the question to consider is if that omission was of such a nature as to entitle the plaintiff to the declaration granted by the learned trial Judge. In this connection the relevant para?graphs of Chapter II of Part E of the rules are 10 and 14 which read as follows :‑ 10. "If a petitioner, in addition to calling in question the election of a returned candidate, claims a declaration that he himself has been duly elected, he shall join as respondents to his petition all other candidates who were nominated at the election". 14. "Where, in the course of an inquiry into an election petition, any candidate, other than the returned candidate, claims the seat for himself, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented complaining of his election ; Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of the publication of the election petition under rule 11, given notice of his intention to the Commissioners and made the deposit referred to in rule 5 and execute any bond that may have been required of him under rule 11". When the election petition was presented by Haji Mehrban Ahmad, it was published in the gazette as required by the rules under the orders of Sayyed Fayyaz Hasan Shah who? was President of the Commission to which the petition was first entrusted. The fact that the members of the First Election Petitions Commission subsequently appointed were found to be incompetent to be appointed members, does not make any difference, because, according to Para?graph No. 11 of Chapter II of Part E of the Punjab Legislative Assembly Electoral Rules, 1950, the President of the Commis?sion can order the publication of the petition in the gazette. That such a publication was made is not denied, nor is it denied that the candidates other than Abdul Waheed Khan did not give notice of their intention to produce evidence to prove that the election of Haji Mehrban Ahmad would have been void if he had been the returned candidate. The omission of the other candidates to act according to Paragraph No. 14 of Chapter II of Part E of the Punjab Legislative Assembly Electoral Rules, 1950, disentitled them to lead evidence and though it was open to Abdul Waheed Khan to produce them as his own witnesses he did not choose to do so. The Election Petitions Commission which made the impugned report had jurisdiction in the matter dealt by them and the discretionary relief of declaration should L be granted only if their omission to follow a rule of procedure had resulted in a failure of justice. In view of the circumstances of the case, I am of the view that no injustice to the plaintiff had resulted. I would, therefore, hold that the fact that the other candidates were not summoned by the Commission presided over by Mr. Abdul Majid Asghar, though an irregularity, was, in the circumstances of the case, an irregularity of such an insignificant nature as not to entitle the plaintiff to a decree declaring that the report of the Commission was void and inoperative. In view of what I have said above, I have arrived at the conclusion that the grounds on which the learned trial Judge passed a decree in favour of the plaintiff were not sufficient grounds for passing thereof. Consequently, I would, while accepting Regular First Appeal No. 1 of 1955, dismiss the suit as well as Regular First Appeal No. 5 of 1955, but would leave the parties to bear their own costs throughout. S. A. RAHMAN, C. J.‑--I agree. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.