P L D 1955 Lahore 344 (PLP)

ABDUL AZIZ KHAN, J.--‑This judgment will dispose of Regular Second Appeals Nos. 131, 132 and.133 of 1954. The facts involved in these appeals are :‑ The following persons filed their nomination papers as candidates from the Wards noted against their names for elections to the Hafizabad Municipal Committee which were to be held in 1953 :‑ Ward No. 12‑‑Muhammad Sharif (plaintiff‑respondent No. 1) and Muhammad Ismail (defendant‑appellant) (R. S. A. No. 131 of 1954). Ward No. 15.‑Muhammad Sharif (defendant‑appellant) and Hafiz Ibrahim (plaintiff respondent No. 1) (R. S. A. No. 132 of 1954). Ward No. 20.‑Ali Muhammad (plaintiff respondent No. 1) and Muhammad Aziz (defendant‑appellant) (R. S. A. No. 133 of 1954). On scrutiny their nomination papers were accepted by the officer appointed for this purpose under rule 21 of the Municipal Election Rules, 1952, hereinafter referred to as the rules. On revision, the Deputy Commissioner of the district rejected the nomination papers of Muhammad Ismail, Muhammad Sharif and Muhammad Aziz under rule 21 (4) of the rules. As a result of this decision, Muhammad Sharif (plaintiff‑respondent), Hafiz Ibrahim (plaintiff‑respondent) and Ali Muhammad (plaintiff‑respondent) were deemed to have been duly elected under rule 24 of the rules, which reads :‑ "Subject to the provisions of rule 23, if the number of candidates validly nominated in any constituency is equal to or less than the number of members to be elected for such constituency, then such candidates shall be deemed to have been elected and if the number of such candidates is less than the number of members to be elected, the Election Officer, Local Bodies, shall fix another date for the election of the remaining members, and if the number of candidates validly nominated for such further election is less than the number of members to be elected, the Election Officer, Local Bodies, shall report the matter to the Punjab Government with a view to action being taken under clause (b) of section 14 of the Act." Later on the Election Officer amended the election programme and invalidated ‑all the proceedings that had taken place including the proceedings as regards Wards No. 12, 15 and

20. Thereupon, the plaintiff‑respondents filed suits for a declaration that no fresh elections could take place in respect of the aforesaid Wards as they had been duly elected as members of the Hafizabad Municipal Committee from these Wards. They also prayed for an injunction restraining the Punjab Province (defendant- respondent) from holding fresh elections in the Wards from which they had been returned. The defendants contested the suits on the grounds that :‑ (a) the Civil Courts had. no jurisdiction to grant the relief prayed for ; (b) the Election Officer could order fresh elections by amending the election programme; and (c) the suit did not lie for want of proper notice under section 80 of the Code of Civil ‑Procedure. In view of the pleadings of the parties the trial Court framed the following issues :‑ (1) Whether the order in suit postponing elections to the Hafizabad Municipal Committee and declaring invalid the proceedings relating to the plaintiffs' election is ultra vires, without jurisdiction, oppressive and against law and justice ? (O. P.) (2) Whether the above order was directed by the Provincial Government ? If not, with what effect ? (O. D.) (3) Whether the notice served under section 80 of the Code of Civil Procedure is invalid ? (O. D.) The learned trial judge found all the issues in favour of the plaintiffs and decreed their. suits. The defendant‑appellants went up in appeal. The learned Senior Civil judge dismissed their appeals and they have now come up in second appeal. The short point on which the decision of these appeals rests is whether sob‑rule (4) of rule 3 of the rules empowers the Provincial Government or the Election Officer, Local Bodies, with the sanction of the Provincial Government to "amend, vary or modify" an election programme so as to invali date the election of a candidate who has been duly elected on account of the operation of rule

24. Like the rest of the rules, sub‑rule (4) of rule 3, under which the Provincial Government has purported to act in this case, has been framed in exercise of the powers conferred by section 240 of the Punjab Municipal Act, 1911, hereinafter referred to as the Act. Sub‑rule (4) of rule 3 reads :- "The Provincial Government or the Election Officer, Local Bodies, may with the sanction of the Provincial Government by an order amend, vary or modify the election programme at any time. Provided that, unless the Provincial Government otherwise directs, no such order shall be deemed to invalidate any proceedings taken before ‑the date of the order." The word "programme" in the text of the rule is signi ficant and can only mean the time‑table laid down for carrying out the elections. Rule 24 comes into play if the number of candidates validly nominated is equal to or less than the number of members to be elected in a constituency. Candidates so validly nominated are deemed to have been duly elected and if the number of such candidates is less than the number of members to be elected, the Election Officer can only "fix another date for the election of its remaining members". The election of candidates who have been elected within the meaning of rule 24 or who have been elected after a poll within the meaning of rule 41 cannot be disturbed. If rule 3 (4) of the rules were still available to the Election Officer or the Provincial Government after the declaration of the result of an election under rule 41 or after a candidate is "elected in accordance with rule 24", the entire election of a Municipal Committee could, for any reason convenient to the Provincial Government, be upset by the simple device of "amending, varying or modifying" an election programme, thus setting at naught the will of the electorate in the case of candidates elected under rule 41 and negativing the operation of a statutory rule in the case of candidates elected under rule

24. The view which I have taken finds full support from the relevant parts of the Act and the Rules. A reference to section 13 (4) of the Municipal Act would show that a member who has been duly elected ceases to be a member only "when as a result of an enquiry held under Cha.pter XIV an order declaring his election void has been notified". Chapter XIV of the Act and Rules 50 to 67 deal with the setting aside of the elections on the ground of corrupt practices, etc. Rule 51 provides :‑‑ "No election shall be called in question except by an election petition presented in accordance with these rules." Rule 52 deserves consideration. It reads :‑ "(1) An election petition against the return of a candi date at a municipal election or against the return of a president or vice‑president, or against an unsuccessful candidate with a view to his disqualification under rule 65 on the ground of a corrupt practice or material irregularity in the procedure shall be in writing, signed by a person who was a candidate at the election or by not less than five electors, and the petition shall be presented to the Deputy Commissioner or an Assistant Commissioner or Extra Assistant Commissioner appointed by the Deputy Commis sioner in this behalf within 14 days after the day on which the result of the election was declared, provided that the limit of fourteen days prescribed by this rule may be extended by the Deputy Commissioner if there are in his opinion sufficient grounds for such extension. (2) The petitioner shall enclose with the petition copies of the petition and of its enclosures equal to the number of respondents." The explanation appended to this rule provides: "For the purpose of this rule in a constituency in which a candidate is deemed to be elected under the provisions of rule 24 the day on which the list of valid nominations is posted under the provisions of sub‑rule (1) of rule 22 shall be deemed to be the day on which the result of the election was declared." Under rule 52 an election petition against the return of a candidate has to be filed within 14 days after the day on which the result of the election was declared. The explanation to the aforesaid rule fixes the date from which the limitation for the petition against the election of a candidate who is elected under rule 24 begins to run. "Material irregularity" has been defined in rule 50 (e) as follows :‑ "Material irregularity in the procedure of an election includes any such improper acceptance or refusal of any nomination or improper reception or refusal of a vote or reception of any vote which is void or non‑compliance with the provisions of the Act or of the rules made thereunder, or mistake in the use of any form annexed thereto as materially affects the result of an election." Rule 62 provides that an election is void if there has been "material irregularity" in conducting it. A perusal of the above rules shows that "material irregularity" includes an improper acceptance or refusal of any nomination paper at an election and such an irregu larity in an election can be challenged by way of an election petition only, as provided by .rule

51. Rule 68 is significant ; it provides :‑ "When as a result of any enquiry under these rules the election of a candidate is declared void, the Commission or the Punjab Government, as the case may be, shall direct that a new election shall be held ; Provided that if the Commission has found that there has been a mistake in the counting of votes or in the declaration of invalid votes, and that but for the mistake some other candidate would have been declared successful, the Commission or the Punjab Government, as the case may be, may, instead of directing that a new election shall be held, declare that the candidate 'found to have obtained the largest number of votes shall be deemed to have been elected." According to this rule, once a candidate is elected from a constituency under rule 24 or rule 41 no new election can be held for that constituency until the previous election is declared void by the Commission Rule 67 empowers the Government to order an enquiry about the conduct of any election. It reads :‑ "The Punjab Government may of, its own motion direct an enquiry to be held into the conduct of any election if there is reason to suspect that a corrupt practice or material irregularity has been committed and the case shall be dealt with so far as may be in the manner prescribed in these rules." The language of the above rule negatives the argument that the Provincial Government can invalidate an election by "amending, varying or modifying" the election programme. If the Government had this power, rule 67 would have been quire unnecessary. I am of the opinion that the plaintiff‑respondents, who must be deemed to have been duly elected by the operation of rule 24, could not be dislodged by merely varying the election programme originally fixed for the holding of elections in the Hafizabad Municipal Committee under A rule 3 (4) of the Rules. They could be unseated only by means of an election petition as provided by the Municipal Act and the Rules. The wide interpretation which the learned counsel for the appellant sought to put on rule 3 (4) would thus make it inconsistent with, and ultra vires of, the provisions of the Act and the Rules which provide a special procedure for unseating the members already elected. An attempt was made to show that the Civil Courts had no jurisdiction to grant the relief to the plaintiff-respondents. It is a well‑settled principle .of law that if a statute creates a right and also provides a special machinery for enforcing that right, the jurisdiction of the Civil Courts is excluded in matters relating to the right created by the statute. In the present case, the jurisdiction of the Civil Courts is not barred because :‑ (a) the right of the plaintiff‑respondents to act as members of the Hafizabad Municipality accrued as soon as they were elected within the meaning of rule 24 ; (b) the Municipal Act or the Rules do not provide them with a special machinery for enforcing that right ; and (c) there was an apparent infringement of the aforesaid right inasmuch as the Provincial Government ignored the relevant sections of the statute and the rules on the subject and acted ultra vires. Under the Bengal Municipal Act a District Magistrate has no jurisdiction to i declare an election void on the ground of corrupt practices, but nevertheless the District Magistrate passed an order to that effect. It was held that the Civil Court could entertain a suit for declaring an election valid. Muhammad Maijaddin Khan v. Janakiballav Dutta (A I R 1933 Cal. 492). For the reasons given above, I see no force in these appeals. I, therefore, dismiss them with costs. A. H. Appeals dismissed.