P L D 1968 Lahore 344 (PLP)

ANWARUL HAQ, J.‑

This petition under Article 98 of the Constitution seeks to challenge the correctness and legality of an order made by Mr. A. H. Khan Niazi, Additional Commis sioner (Revenue), Multan Division, acting as Election Tribunal under rule 19 of the West Pakistan Municipal Committees (Election of Members to Represent Special Interest) Rules, 1966 (hereinafter referred to as the Rules). The jurisdiction of the Election Tribunal had been invoked by respondent No. 2 Begum Mahmooda Bashir who, along with the petitioner and respondents Nos. 3 to 5, had contested the election held on the 26th of Febru ary 1966 to fill two seats reserved for women under the aforesaid Rules. The electorate consisted of members of the Lahore Municipal Corporation, each of whom was entitled to cast two votes, and the result of the polling was as follows :‑-- Petitioner, Tahira Haq, formerly known as Mrs. Tahira Gulzar ... 46 votes. Respondent No. 3 Begum Sakina Farrukh 37 votes. Respondent No. 2 Begum Mahmooda Bashir 20 votes. Mrs. Fehmida Begum, respondent No. 4 15 votes. Mrs. Jose Phine Iqbal, respondent No. 5 Nil. As a result the petitioner and respondent No. 3 were declared elected.

2. It may be stated at this stage that during the course of the election respondent No. 2 Begum Mahmooda Bashir had filed Writ Petition No. 293 of 1966 to challenge the candi dature of the present petitioner on the ground that the latter was the wife of a serving Army Major who was then stated to be an active duty in the Rajasthan Sector. It was submitted that the petitioner was disqualified from contesting the election in view of the provisions contained in clause (g) of subsection (1) of section 53 of the Electoral College Act, 1964 as she was the wife of a person in the service of Pakistan not being mentioned in clause (3) of Art. 103 of the Constitution. That petition was dismissed by a Division Bench of this Court on the 22nd of Feb ruary 1966 on the ground that the question whether Mrs. Tahira Gulzar was indeed disqualified in terms of clause (g) of sub section (1) of section 53 of the Electoral College Act had become a seriously disputed question of fact which should more appropriately be investigated by the Election Tribunal in the first instance, in case Begum Mahmooda Bashir was not successful in the election which was still to be held. As already stated the election was held on the 26th of February 1966 and Begum Mahmooda Bashir was defeated, having secured the third position among the five candidates.

3. Begum Mahmooda Bashir's election petition was presented to the Provincial Government as required by rule 19 of the Rules. The Provincial Government entrusted the same to the Commissioner, Lahore Division, for disposal, but the latter returned it to the Government on the ground that he had been impleaded in the petition as a respondent, and accordingly the Provincial Government issued a fresh notification on the 10th of September 1966 delegating its powers to Commissioner, Multan Division. However, the Commissioner, Multan Division, did not himself deal with the election petition but instead transfer red it to the Additional Commissioner, namely, Mr. A. H. Khan Niazi, by an order passed on the 1st of October 1966. During the proceedings before him a preliminary objection was taken by the present petitioner as well as by respondent No. 3 to the effect that the Additional Commissioner, Multan Division, had no jurisdiction to hear the election petition as the same had not been entrusted to him by the Provincial Government and the Commissioner, Multan Division, had no power to transfer it to him. The learned Additional Commissioner, however, overruled this objection on the ground that under the General Clauses Act, 1897 (hereinafter referred to as the Act) the term "Commis sioner" included the Additional Commissioner of the Division. On the merits of the case the learned Election Tribunal observed that the position taken up by Mrs. Tahira Gulzar that she had been divorced by her husband in the year 1956 could not be accepted in view of the stand taken by her as a respondent in Writ Petition No. 293 of 1966, wherein she had asserted that her husband had retired from the army and, therefore, she was not hit by the prohibition contained in section 53 (1)(g) of the Electoral College Act. Relying on a letter received from the Military Secretary, General Headquarters, Rawalpindi, he held that Major Gulzar Ahmad Khan had been recalled to service during September 1965 and was still serving in the army on the date Mrs. Tahira Gulzar offered herself for election. As a result of these two findings he reached the conclusion that she was disqualified from contesting the election, and that in the circumstances of the case the petitioner before him, i.e., respondent No. 2, Begum Mahmooda Bashir, should be declared elected in place of Mrs. Tahira Gulzar.

4. The order passed by the Election Tribunal has been challenged before us on the following grounds :‑ (1) That respondent No. 1 Mr. A. H. Khan Niazi, Additional Commissioner (Revenue), Multan Division, had no jurisdiction to hear and determine the election petition instituted by respondent No. 2, (2) that assuming that the learned Additional Commissioner had the jurisdiction to deal with the matter, he has acted illegally in the exercise of that jurisdiction by unlawfully refusing to consider in evidence a letter (Exh. D. 1) dated the 21st of August 1966 written by Major Gulzar Ahmad Khan to the present petitioner, intimating that she had been divorced by him in April 1956, and (3) that, in any case, the order passed by the Tribunal is bad in law as it has the effect of wasting or throwing away the votes of 46 electors who were not aware of any disquali fication attaching to the candidature of the petitioner and, therefore, the proper order to make was to set aside the election as a whole.

5. On behalf of respondent No. 2 Mr. Nazir Sheikh has raised certain preliminary objections which may be noticed at this stage, namely :‑-- (a) That the petitioner being disqualified ab initio from contesting the election in dispute, she is not an aggrieved person within the meaning of Art. 98 of the Constitution and the petition is, therefore, not maintainable, and (b) that in view of the position taken up by the petitioner in the written statement filed by her as a respondent in Writ Petition No. 293 of 1966, she is now debarred from adopting the stand that she had been divorced by her husband in the year 1956.

6. We do not see any merit in these objections for the reason that the question whether the petitioner was indeed disqualified from contesting the election was precisely the question before the Election Tribunal, and it is this finding which is under attack in the present proceedings. It is also clear that the petitioner could not be legally held debarred from t adopting a different position if indeed new facts had come to High regarding her marital status. It would appear, therefore, that this is not a matter which can stand in the way of the entertain ment of the present petition.

7. Turning now to the question of jurisdiction raised by Dr. Nasim Hassan Shah, on behalf of the petitioner, the submission is that under rule 19 of the Rules the election petition is to be presented to the Government in the case of a First Class Municipality, and the Government can delegate any of its powers to the Commissioner under section 125 of the Municipal Administration Ordinance, 1960 (hereinafter referred to as the Ordinance), but the Commissioner in turn is not empowered to further delegate this power or function to any other officer subordinate to him, and that there is no provision in the Ordinance or the Rules enabling a Commissioner to transfer an election petition to an Additional Commissioner. On the basis of this reasoning it is submitted that the only authority who was competent in the present case to hear and determine the election petition instituted by respondent No. 2 was the Com missioner, Multan Division, and not the Additional Commissioner of that Division.

8. Sub‑rule (1) of rule 19 of the Rules does indeed provide that an election petition has to be presented to the Government in the case of a First Class Municipality within thirty days of the declaration of the result, and under subsection (1) of section 125 of the Ordinance the Government is empowered to delegate, by notification in the official Gazette, any of its powers under the Ordinance or the Rules to a Commissioner or any other officer subordinate to it. Subsection (2) of the same section provides that "a Commissioner may, with the previous sanction of the Government, delegate any of his powers under this Ordinance or the Rules not being powers delegated to him under clause (1) to any officer subordinate to him". It is, therefore, clear that the power delegated to the Commissioner by the Provincial Government could not be further delegated to an Additional Commissioner. It is also practically conceded on behalf of the respondents that the Divisional Commissioner had no power to transfer the election petition to the Additional Com missioner, but it is contended that under the definition contained in clause (13) of section 3 of the Act as amended by Ordinance 29 of 1961 the term "Commissioner" includes an Additional Com missioner and, therefore, the notification issued by the Provincial Government on the 10th of September 1966 delegating its powers in this behalf to Commissioner, Multan Division, had the effect of empowering the Additional Commissioner also to deal with this matter.

9. The term "Commissioner" has been defined in clause (8) of section 3 of the Ordinance as follows :‑ " `Commissioner' means the chief officer in charge of the revenue administration of the Division concerned and, as respects the Federal Capital, the Administrator of Karachi, and includes any officer specially appointed by the Government to perform all or any of the functions of a Commissioner under this Ordinance." An inquiry was made by us from the Provincial Department of Basic Democracies whether any powers had been delegated by the Government to the Additional Commissioner (Revenue) function ing in various Divisions of the Province, and we were informed by a Section Officer of the Department that only one notification had been issued so far on the 20th of July 1962, appointing Addi tional Commissioners of certain Divisions, including Multan Division, to dispose of service appeals preferred by Municipal employees. It was stated that so far there had been no other delegation of powers to Additional Commissioner under the Ordi nance, nor had they been appointed as Commissioners to perform any other functions under the same Ordinance or the Rules framed thereunder.

10. It was submitted by the learned counsel appearing for the various respondents that the fact that the Additional Commis sioner of Multan had been appointed by the Government to perform a certain function under the Ordinance had the effect of bringing him within the definition of the term "Commissioner" as contained in clause (8) of section 3 of the Ordinance. The argu ment is correct in so far it goes, but it clearly does not go far enough. According to the definition already reproduced above, the term "Commissioner" would, of course, include the chief officer who is in charge of the revenue administration of the Division concerned, and any other officer specially appointed by the Govern ment to perform all or any other functions of the Commissioner under the Ordinance. It is, therefore, clear that such other officer can be deemed to be a Commissioner only in so far as the speci fied functions are concerned, and not with regard to any other functions which would ordinarily belong to the Divisional Com missioner himself. It therefore, follows that if an Additional Commissioner has been empowered to deal with service appeal of Municipal employees, then he is to be deemed to be a Commis sioner under the Ordinance with regard to the disposal of service appeals only, and that would not make him a Commissioner under the Ordinance with regard to the disposal of any other business, say for example, the bearing of election petitions. To put it differently, the definition as contained in clause (8) clearly contemplates only one officer who will be a Commissioner for all purposes under the Ordinance, namely, the chief officer in charge of the revenue administration of the Division concerned; and any other officer will be deemed to be a Commissioner only in respect of all or any of the functions of a Commissioner which are specifically entrusted to him by the Provincial Government. The mere fact, therefore, that an Additional Commissioner is empowered to deal with service appeals of Municipal employees would not make him a Commissioner for other matters arising under the Ordinance.

11. We may now take up the argument that the definition contained in clause (13) of section 3 of the Act has to be read into the Ordinance with the result that the word "Commissioner" would be deemed to include the Additional Commissioner of the Division concerned. It was submitted on behalf of the respondents that from the opening words of section 3 of the Act it is clear that unless there is anything repugnant in the subject or context, the definitions given in the Act are to be read as part of every Central enactment irrespective of the fact that the terms defined in the Act may also be defined separately in the special enactments. More specifically, it was contended that the definition of the term "Commissioner" given in section 3 (8) of the Ordinance is merely supplementary to the definition of the same term as contained in section 3 (13) of the Act, and viewed in this light, there was no repugnancy between the two definitions, both of which could co‑exist side by side. This point was specially elaborated by Mr. Zullah, appearing for Begum Sakina Farrukh, and it was sub mitted that the true effect of reading the two definitions together would be that under the Ordinance the term "Commissioner" would mean the Divisional Commissioner, the Additional Commis sioner of the Division, and any other officer specially empowered by the Government to perform all or any of the functions of a Commissioner under the Ordinance.

12. On behalf of the petitioner it was contended by Dr. Nasim Hassan Shah that although it was true that the definitions and principles contained in the Act had to be read into every Central enactment, yet this was subject to the overriding qualification contained in the opening words of section 3 of the Act to the effect that there was nothing repugnant in the subject or the context, and that if a term was specifically defined in a special enactment then that special definition had to be given effect to and not the general definition contained in the Act. If indeed the two definitions were identical, no question of repugnancy would arise, and the definition appearing in the special enactment would merely be a redundancy, but if the two definitions were different then to the extent of the difference it was clear that there was present an element of repugnancy.

13. The question whether a definition contained in the special enactment would apply in preference to the one contained in the Act came up for consideration in Messrs Farid Sons Limited, etc. v. Messrs Siemens and Halske A. G. Hoff etc. (P L D 1961 Kar, 612) and it was held that the definition of the term "good faith" appearing in section 2 of the Limitation Act being stricter than that contained in section 3 (20) of the Act, would exclude the application of the latter in so far as questions of limitation were concerned. There is no elaborate discussion of the point, but the principle has been clearly enunciated. In Subramania Iyer v. Official Receiver, Quilon and another (AIR 1958 S C 1) it was observed that "the General Clauses Act is enacted in order to shorten language used in parliamentary legislation and to avoid repetition of the same words in the course of the same piece of legislation. Such an Act is not meant to give a hide‑bound meaning to terms and phrases generally occurring in legislation. That is the reason why the definition section contains words like `Unless there is anything repugnant in the subject or context' ". It was added that "the definition of `good faith' in the Indian General Clauses Act would have been applicable to the Indian Limitation Act also, but the Legislature in its wisdom has given a special definition of good faith different from the one in the Indian General Clauses Act advisedly. The Indian Penal Code which came into existence earlier than the Indian General Clauses Act contains its own definitions to serve its own special purposes." After making these observations, the learned Judges then proceeded to examine whether in the case before them the definition contained in the Travancore‑Cochin General Clauses Act, 1950, was to apply in preference to the one contained in the Indian General Clauses Act and on the facts before them they came to the conclusion that the definition given in the Central General Clauses Act should apply. However, for our present purpose the observations made and the illustrations given are relevant as laying down the principle that if a term has been defined in the special enactment, then that definition has to be taken for the purposes of that enactment to preference to the one contained in the Act.

14. Reference was also made to Chief Inspector of Mines and another, etc. v. Karam Chand Thapar, etc. (A I R 1961 S C 838) in which it was stated that "the purpose of the General Clauses Act is to place in one single statute different provisions as regards interpretations of words and legal principles, which would otherwise have to be specified separately in many different acts and regulations. Whatever the General Clauses Act says, whether as regards the meanings of words or as regards legal principles, has to be read into every statute to which it applies". In that case, however, no question arose of considering whether the definition contained in the special enactment would apply to the exclusion of the one contained in the General Clauses Act.

15. The principle that the general law would not prevail over a specific enactment is now well settled and one may refer in this behalf to A I R 1921 Lah. 280; A I R 1941 Lah. 364 A I R 1936 All. 222 ; A I R 1932 P C 252 ; A I R 1950 Mad. 711; A I R 1934 Sind 89; A I R 1934 Bom. 16 and A I R 1936 Nag.

180. The principles which emerge from these authorities are that where special provision is made in a special statute that special provision excludes the operation of a general provision p in the general law. The definition of the term "good faith" given in the Act has not, for instance, been expressly applied to the term when used in the Contract Act, 1872 or the Transfer of Property Act, 1882 or the Limitation Act. Now, in the present case the term "Commissioner" having been specific ally defined in clause (8) of section 3 of the Ordinance, it is clear to us that the meaning of this term has to be determined with reference to this definition and not with reference to the general definition contained in clause (13) of section 3 of the General Clauses Act specially when, as already pointed out, there is a difference between the two definitions, and to the extent of the difference it must be held that there is something repugnant in the subject or context which would exclude the definition given in the Act.

16. Now, in the notification issued by the Provincial Government on the 10th of September 1966 the power to dispose of the election petition instituted by the respondent was delegated to the Commissioner, Multan Division. According to clause (8) of section 3 of the Ordinance, it would, therefore, mean that the power was being delegated to "the chief officer in charge of the revenue administration of the Division concerned" and to none else. This definition makes no reference to the Additional Commissioner of a Division, and the only other officer contemplated besides the Divisional Commissioner himself is an officer specially appointed by the Government to perform all or any of the functions of a Commissioner under the Ordinance. As the Additional Commissioner, Multan Division, has not been specially appointed to dispose of election petitions in respect of special constituencies, that officer cannot, therefore, be regarded as a Commissioner for this purpose within the definition as contained in the 'Ordinance. Such being the case, the Additional Commissioner (Revenue) of Multan Division had no jurisdiction to dispose of the election petition instituted by the respondent Begum Mahmooda Bashir against the present petitioner. It has already been stated that the power conferred on the Divisional Commissioner by the notification of the 10th of September 1966 could not be further delegated by him in view of the prohibition contained in subsection (2) of section 125 of the Ordinance, nor had he any power to transfer the election petition to the Additional Commissioner. We must, therefore, hold that the order passed by Mr. A. H. Khan Niazi, in this case on the 3rd of April 1967 is without jurisdiction and of no legal effect. As a consequence, the election petition in question must still be deemed to be pending with t‑he Commissioner, Multan Division.

17. On this view of the matter, it does not appear to us to be necessary to deal with the other two contentions raised by Dr. Naseem Hassan Shah regarding the illegal exclusion of a certain piece of evidence, and the illegal nature of the final order made by the Election Tribunal. Suffice it to say that it will be open to the petitioner to urge these points before the Election Tribunal and we do not wish to say anything at this stage which might have the effect of prejudicing one party or the other. During the course of arguments we were inclined to the view that it might be useful if some guide lines were indicated, with regard to the nature of the order which it is permissible to the Election Tribunal to make in the circumstances of the present case; but on re‑consideration it appears to us that the matter should be left open so as to be decided independently by the Election Tribunal in the first instance. We have no doubt that the parties would bring to the notice of the Election Tribunal the relevant law governing the subject.

18. Before parting with this case, we might take note of the submission made on behalf of the respondents that as the petitioner has approbated and reprobated in the same breath no relief should be given to her in the exercise of our extra ordinary jurisdiction, and in support of this submission reliance was placed on Ch. Rahmat Ali and others v. Custodian of Evacuee Property, Lahore and others (P L D 1966 Kar. 31). It is true that in the case just cited their Lordships did observe that the petitioners had not come with clean hands and were not entitled to any relief, and in coming to this conclusion they took note of the fact that they had been approbating and reprobating in the same breath, but the observations are relevant to the peculiar circumstances of that case. In the instant case the petitioner claims to have come into possession of new facts revealed in the letter written to her by her husband on the 21st of August 1966, and these precisely are the facts which will have to be gone into by the Election Tribunal when it hears the case on merits and, therefore, on account of this new stand taken up by the petitioner we cannot hold that she is disentitled to any relief under Article 98 of the Constitution. To put it differently at this stage it is not possible to hold that the petitioner has not come with clean hands or that she is approbating or reprobating in the same breath. These matters require factual investigation which will undoubtedly be under taken by the learned Commissioner, Multan Division, in due course.

19. For the foregoing reasons, we would accept the present petition, holding that the order passed by the learned Additional Commissioner, Multan as Election Tribunal is without lawful authority and of no legal effect. The learned Commissioner, Multan Division, would now himself proceed with the disposal of the election petition pending before him. In view of the legal questions involved, the parties are left to bear their own costs. K.M.A. Petition accepted.