P L D 1956 (W (PLP)

ORTCHESON, J.‑The petitioner in this case, Mr. Abdul Latif, who describes himself as a member of the Municipal Committee, Shujabad, District Multan, has applied for the issue of appropriate writs against (1) Mr. M. R. Inayat Assistant to the Commissioner, Development, Government of West Pakistan, Multan Division, in his capacity of enquiry officer appointed under rule 67 of the Punjab Municipal Election Rules, 1952, (hereinafter referred to as the Rules), (2) the Province of West Pakistan through the Secretary Local Government and Welfare, Government of West Pakistan, Lahore, and (3) Abdul Shakoor, son of Hussaina, of Shujabad. The facts as narrated in the petition briefly are that the petitioner and respondent No. 3 were rival candidates in ward No. 8 for election to the Municipal Committee, Shujabad. The election was held on the 4th of January 1956, and the petitioner was declared duly elected three days later, his election being gazetted on the 11th of February 1956. On the 16th or 17th of January 1956, Abdul 5hakoor, respondent No.3, filed an election petition under rule 52 of the Rules. On the 23rd of January 1956, the petitioner filed a counter petition, and both are still pending. (1t is not denied that a commission has been appointed to enquire into both the above petitions). It is further stated in the petition that a week later (the petitioner presumably means a week after the filing of the counter petition) respondent No. 3 moved the Provincial Government for an enquiry under rule 67 of the Rules, respondent No. 1 being accordingly appointed by the Governor to conduct it. The present petitioner was summoned to appear before respondent No. 1 on the 13th of February 1956. He obeyed, but protested that the decision of the election officer as to the validity of a ballot paper is final and can be reversed only as a result of an election petition under rule 40 (3). From this statement, contained in paragraph No. 5 of the petition it appears that the gravamen of the allegations on the basis of which an enquiry under rule 67 was ordered by Government was that certain ballot papers had either been wrongly accepted as valid or equally wrongly rejected as invalid. The petitioner further alleges that respondent No. 1 refused to accept the petitioner's interpretation of rule 40 (3) and proceeded to open the ballot boxes and examine the votes. The petitioner has put forward two objections to the proceedings under rule 67, namely, that in view of the provi sions 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, is still pending, and, secondly, that an enquiry officer can be appointed only if no election petition has been filed, the appointment of such an officer in the present case being consequently illegal and he prays for the issue of the following writs:‑ (1) A writ of mandamus and prohibition to respondent No. 1 to refrain from counting the ballot papers and deciding as to their validity or invalidity and from submitting a report to respondent No. 2 on the basis of the said decision. (2) A writ of certiorari removing the proceedings carried on by respondent No. 1 to this Court with a view to their being quashed. (3) Writ of mandamus to respondent No. 2 directing the said respondent not to implement or give effect to any decision of respondent No. 1 and to refrain from interfering with the discharge of the duties of the petitioner as Municipal Commissioner. An interim order was issued by this Court on the 24th of February 1956, directing that no decision should be taken by Government during the pendency of the writ proceedings. Having heard Mr. Muhammad Ismail Bhatti for the peti tioner, Mr. S. A. Mahmud, Assistant Advocate‑General for respondents Nos. 1 and 2, and Mr. S. M. Zafar for respondent No. 3, we are of the opinion that the petitioner's contention must be accepted to the extent of holding that the Provincial Government acted against the principles of natural justice and also in contravention of the only reasonable interpretation of 4 the Rules, in appointing an enquiry officer and attempting to short‑circuit the proceedings of the Election Commission. It was stated at the. Bar by Mr. Muhammad Ismail Bhatti, and not contradicted by Mr. Mahmood, that the questions involved in the enquiry ordered under rule 67 were included among those at issue in the election petitions. A perusal of the Rules makes it abundantly clear that if a defeated candidate wishes to challenge the validity of any election on the ground of some corrupt practice or other material irregularity, the remedy contemplated is that of an election petition, and that it was never intended that he should have the choice between filing such a petition and moving Government to proceed under rule 67, still less that he should be allowed to avail himself of both procedures simultaneously. The filing of a petition is subject to certain formalities prescribed in rules 52 and 54 of the Rules. For example, it must be in writing, signed either by a person who was a candidate at the election or by not less than five electors, and it should be presented to the authority appointed, within fourteen days after the day on which the result of the election was declared (subject to the proviso to the Rules that the period of limitation so laid down may be extended for good‑ reasons by the Deputy Commis sioner) and must be accompanied by a deposit of either Rs.500 or Rs. 250 according to the status of the Municipality. It is obvious that if, owing to the negligence or indifference of a defeated candidate, an election petition would be subject to dismissal under rule 56, the provisions of sub‑rule (1) of rule 52 or rule 54 not having been complied with, it would be an act of gross injustice to enable the said candidate to nullify the right which has accrued to his opponent by moving Government to institute an enquiry under rule

67. We do not of course lay it down as an inflexible rule that a defeated candidate may in no circumstances move Government for an enquiry, but the cases in which such a proceeding would be justified must be exceedingly rare, and the present is empha tically not one of them. If to allow a defeated candidate his choice between filing an election petition and moving Government to hold an enquiry would result in gross injustice to the other party, to allow him to avail of the two remedies simultaneously might lead to an absurdity, namely that two parallel enquiries would be proceeding at the‑ same time under two authorities of equal status (rule 67 (a) provides that the officer appointed to hold an enquiry under Rule 67 shall be deemed to be a Commission under Rule 57) who might arrive at contrary decisions. It could never have been contemplated that in such a case Government should have the option of deciding which finding should be accepted. For the above reasons we hold that an enquiry under rule 67 should only be resorted to if, for one reason or another, an election petition cannot achieve the desired object and that in the present case the order of Government appointing, Mt. M. R. Inayat as an enquiry officer was misconceived. We accordingly issue a writ of mandamus to Government (respon dent No. 2) restraining it from proceeding further with the enquiry. This direction is, however, subject to the proviso that if for any reason the election petition or petitions should be for valid reasons, dismissed or withdrawn without any decision having been arrived at on the merits, there will be no bar to proceeding further with the enquiry under rule 67, if Government considers it desirable to do so. In the circumstances we pass no order as to costs. RAHMAN, C. J.‑ 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 candidate's' battle by resorting to its powers of instituting an inquisition under Rule

67. The relevant rules read as a whole make it clear that the Government is untrammelled by restrictions of limita tion in instituting an inquiry under Rule 67 and that the scheme of the Rules is that such a step should be taken only in exceptional cases in the absence of an election petition, in the public interest, if credible information reaches the Govern ment, 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 when there is reason to think that the election has been vitiated by the exercise of malpractices on a large scale though the interested parties may have entered into a silent conspiracy not to expose one another by election petitions. A. H. Writ granted.