P L D 1955 Lahore 263 (PLP)

S. A. RAHMAN, C. J.‑‑Haji Mehrban Ahmad, a timber merchant of Jhelum, has approached this Court for the issue of a writ of mandamus and prohibition. He prays that the Commissioner Rawalpindi (the first respondent) be directed. to withhold approval to the election of the third respondent, Mian Abdul Aziz, as President of the Municipal Committee, Jhelum, and that the first and second respondents, namely, the Commissioner Rawalpindi and the Secretary, Local Self‑] Punjab be restrained from taking steps to publish the names of the third respondent as President and of the fourth respondent, Sheikh Abdul Karim, as Vice -President of the said committee. The petition is grounded on the following facts. The Municipal Committee, Jhelum, is a B‑class committee which was constituted by a gazette notification dated the 9th October 1954. Under section 20 (1) of the Punjab Municipal Act (hereinafter referred to as the Act), a president had to be elected for this committee subject to approval by the Commis sioner Rawalpindi. The election of the president and vice-president of the committee fell to be regulated by the Muni cipal Election Rules, 1952, framed by the Provincial Government by virtue of powers conferred on it under section 240 of the Act. Under rule 5 of these Rulas, it was for the Deputy Commissioner of the district or any gazetted officer appointed by him in this behalf, to fix, at 48 hours' notice, a date for the first meeting of the, newly constituted committee so that the members elected may take the oath of allegiance and the president and vice‑president or vice- presidents of the committee may be elected. The Deputy Commissioner, Jhelum, nominated the Additional District Magistrate, Jhelum, to perform the functions contemplated in this rule. Accordingly, the Additional District Magistrate fixed the 22nd of October 1954 as the date of the first meeting of the committee arid this fact was duly notified to all concerned. It is alleged in the petition that the _Provincial Government quite illegally interfered twice with the discretion vesting in the Additional District Magistrate and ordered him first to postpone the meeting to a date to be fixed after a fortnight from the 22nd of October and then to accelerate it to the 26th of October 1954. The petitioner came away to Lahore as a result of the first postponment to join the political deliberations that were going on, preliminary to a meeting of the Punjab Muslim League Assembly Party, at which constitutional matters of great importance were to be discussed on the 23rd of October 1954. It was averred that the postponment of the meeting and later on, its accelera tion, were ordered by the Provincial Government for political reasons and that the Additional District Magistrate was not permitted to apply his own mind to the matter. Consequently, it was contended, the meeting held on the 26th of October c should be regarded as no meeting in the eye of law. The action of the Government had prejudiced the petitioner's chances of success in the election as president of the committee. Some other grounds were also taken in the petition which were, however, abandoned at the time of arguments as it was realised that they could have formed the basis of an election petition under the rules. The matter of the Vice‑President ship may be disposed of in one sentence. The petitioner. has no locus stand in respect of it, as he has no personal interest in the Vice‑President ship of the Committee. He was not a candidate for that office. In answer to the rule nisi that was issued to the respon dents, it has been brought to our notice that the first postponment of the meeting fixed by the Additional District Magistrate took place either at the instance of the petitioner himself or at least with his consent, under directions of the Hon'ble Chief Minister, Punjab. We have been shown a note, dated the 19th of October 1954, of the Hon'ble Chief Minister on the relevant file, by the Advocate‑General, Punjab, which bears this out. Mr. Yaqub Ali Khan on behalf of the petitioner could not controvert the correctness of this note. In consequence of this note, orders were issued on the 20th of October 1954, by telegram, to the Deputy Commis sioner, Jhelum, directing postponment of the meeting by about a fortnight. On the 21st of October 1954, another telegram was sent by the Secretary of the Local Self‑Govern ment Department, Punjab, intimating to the Deputy Commis sioner that the Government now wanted the meeting to be held on the 26th of October instead of the 22nd. The file that was brought by the learned Advocate‑General did not show in what circumstances this second order was passed by the Hon'ble Minister in charge An affidavit however, of the Hon,ble Minister concerned has been placed before us, which is sets out clearly that the order in question was passed bona fide. as the reason for the postponment had disappeared and Government were anxious to expedite the election. It way not motivated by any political or personal considerations. Mr. Yaqub Ali Khan, in the face of this affidavit, has very fairly conceded that the question of mala fides does not now arise. He has, however, contended before us that the Provincial Government were not in law entitled to fix .the date of the meeting and. consequently, the meeting held on the 26th of October 1954 was not a meeting contemlpated by the statute or the rules framed there-under and the election that was held on that date was in consequence null and void Rule 51 of the Municipal Election Rules, 1952, provides that no election shall be called in question except by an election' petition presented in accordance with these rules. One of the grounds on which an election petition can be based is mentioned by rule 52 as a material irregularity in the procedure. A material irregularity is defined in clause (e) of rule 50 as including, inter alia non‑compliance with the provisions of the Act or rules made there under. Prima facie, therefore, the petitioner could have had resort to the remedy provided by the rules by way of an election petition in this case. Mr. Yaqub Ali Khan attempted to argue that the election could not be said to be complete till the Commissioner had given his approval as required by section 20 of the Act and the names of the successful candidates had been gazetted. This does not appear to be correct. Rule 52 provides for an election petition to be presented to the Deputy Commissioner or an Assistant Commissioner or Extra Assistant Commissioner appointed by the Deputy Commissioner in this behalf, within fourteen days after the day on which the result of the election was declared. The prescription of this period of limitation clearly implies, that the presentation of the petition need not await the approval of the Commissioner to the election. The argument of the learned counsel, therefore, appears to be devoid of force. The rule is fundamental that when a right is created by a statute which also prescribes the manner in which that A right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute. This was the principle laid down in Welver -hampton New Water Works Co. v. Hawkesford ((1859) 6 C B (N. S.) 336, 356), The principle was referred to with approval by Muhammad Munir C. J. of this Court (as he then was while deliver ing the leading judgment in the Full Bench case reported as Sultan Ali v. Nur Husain (P L D 1949 Lalh. 301,). The same view was endorsed by the Supreme Court of India in N. P. Ponnuswami v. The Returning Officer, Nomakkal Constituency. Namakkal (1952 S C J 100.), In that case a writ of certiorari had been asked for by a person under Article 226 of the Indian Constitution complaining that the Returning Officer had improperly rejected his nomination papers for election to the State Assembly. The learned judges dismissed the petition on the gound that they had no jurisdic tion to interfere with the order of the Returning Officer by reason of the provisions of Article 329 (b) of the Indian Constitution. That Article provides, inter alia, that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. It was observed that the law of elections in India did not contemplate that there should be two attacks on matters connected with election proceedings, one while they were going on, by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution, and another, after they had been complet ed, by means of an election petition. The learned Judges relied inter alia on the special provisions of Art. 329 of the Indian Constitution which may be regarded as a special feature of that case but the rule invoked appears to be great in character. Prima facie the present case seems to be covered by the rule as the Punjab Municipal Act and the Rules framed there under, provide a complete code regulating the elections to various officers in Municipal committees and a specific remedy is provided for in respect of grievances relating to the elections, including the grave irregularity such as is complained of in the present case. Mr. Yaqub Ali Khan, however, contends that the present case is distinguishable from the cases in which the above mentioned rule was applied. The contention is that where the irregularity is of such a grave kind that no lawful election could be said to have been held at all, the extraordinary remedy of a writ would be open to an aggrieved party. He cited in this aconnection two English cases reported as In re Barnes Corporation v. Ex parte Hutter ((1933) 1 K H 668, 681), and The Queen v. Cotham ((1898) 1 Q B 802.) In the former case, which related to the election of aldermen and the chairman of a Borough council, the chairman of the meeting held for the purpose, did not openly read out the voting papers with the names, Christian names, places of abode and descriptions of the voters concerned, as required by section 60 subsection (4) of the Municipal Corporations Act, 1882. It was held that instead of the open election provided for by the Act, there had been a ballot or secret election which was not in accordance with the law and that as there had been no lawful election and the offices of the aldermen were unfilled, the proper remedy was not a quo warranto, or an election petition under section 87 of the Act, but a mandamus under section 225 to hold an election of aldermen, and that the writ should be peremptory, notwith standing any incovenience that might be caused by the displacement of persons who were then acting as aldermen. It may be noted however that an irregularity in the election procedure is apparently not one of the grounds on which an election petition could be founded under the relevant English Statute. ' The facts of the latter case are that by 9 Geo. 4, clause 61, S. 4, licensing justices at special transfer sessions are vested with power to license persons, "intending to keep inns theretofore kept by other persons being about to remove from such inns," to sell exciseable liquors by retail. Purporting to act under that section, the justices granted a licence by way of transfer from a person who was not and had not been in occupation of the premises in respect of which he held it, and no exciseable liquors had been sold upon those premises for many years. It was found that as the justices had dis regarded the provisions of the statute giving them jurisdiction, and must have acted upon some considerations altogether out side that statute, they had not heard and determined the matter according to law, and that a mandamus ought to go command ing them so to hear and determine it. The principle that emerges, therefore, is that if the authority concerned has not acted within the four corners or the Act which confers exclusive jurisdiction on that authority J to decide the matter, then the civil Court can step in to` give redress to the wronged party. It has, therefore, to by seen whether this qualification to the general rule is available to the petitioner in the present case. The learned Advocate‑General, Mr. A. R. Changez, has drawn our attention to the provisions of section 237 of the Punjab Municipal Act. It would be useful to reproduce that section in extenso:‑ "Notwithstanding anything in this Act, the Provincial Government shall have the power of. reversing or modify ing, any order of any officer of the Provincial Government passed or purporting to have been passed under this Act, if it considers it to be not in accordance with the said Act or the rules or to be for any reason inexpedient, and generally for carrying out the purposes of this Act the Provincial Government shall exercise its officers and the Commissioner shall exercise over the Deputy Commissioner all powers of superintendence, direction and control." This enactment gives very wide powers to the Provincial Government or the Commissioner, as the case may be, in respect of orders passed under the Act or the rules framed under the Act. The learned Advocate‑General argues that by virtue of the powers given by this section the Provincial Government had authority to revise the order of the Ad ditional District Magistrate, Jhelum, postponing the election by a fortnight and to. accelerate the date of election if it so thought fit. We consider that this contention has consid erable force. As we have observed above, the order passed by the Hon ble Minister in charge, accelerating the date of the meeting, was made bona fide and not in the interest of any party. Mr. Yaqub Ali Khan's suggestion that section 237 of the Punjab Municipal Act refers merely to orders passed under the Act and not to those passed under the rules does not appear to be sound. Surely an order passed under the rules would also be an order passed "under the Act". The learned counsel further contended that the second order passed by the Minister in charge accelerating the date of meeting amounted only to a revision of Government's earlier order postponing the meeting and was not really a review of a order passed by a subordinate officer. If the matter is regarded in this light, even then the second order would not be open to exception. If an authority has power to pass an order, it can also alter or modify it at a subsequent stage. This is a well recognized principle embodied in the General Clauses Act. Learned counsel expressed the apprehension that if such a wide interpretation is placed on the provisions of section 237 of the Act, ‑it might enable Government even to interfere with the decision of an Election Commission. It may be pointed out, however, that the rules expressly, provide for the finality of a decision arrived at by an Election Commission and it is not conceivable that Government would pass an order in conflict with any of the rule's or the provisions of the statute. We are unable to hold, therefore, that the second order passed by the Government is, in any way, tainted with illegality or even material irregularity. It is significant to note that a similar order passed on the first occasion was consented to or acquiesced in by the petitioner himself. The petitioner has sought to take out a writ of prohibition against the Commissioner Rawalpindi. A writ of prohibition, as is well known, can issue only in respect of a judicial ox quasi‑judicial act at least, whether the act is of a judicial tribunal or of some other body. The approval which the Commissioner has to accord to an election. under the Act does not, however, appear to partake of the nature of a judicial or a. quasi‑judicial act. He is not required under the law to hear any of the parties before giving or withholding his approval. The parties have no right to lead any 'evidence before him bearing on this point. The act of approval may be described as an administrative act but clearly it is not a judicial or a quasi‑judicial act. Clearly the non‑approval of an elected candidate may be based on considerations wholly outside the specific provisions of the Act or the rules. The person concerned may be held to be undesirable politically or socially or on some other cognate grounds within the discretion of the Commissioner. This seems to be clear from the scheme of the Act itself. The various tests laid down for determin ing whether the Act in question has a judicial or quasi judicial character do not cover the present case. ' It has been said that an act to be judicial must be of a body having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. It is further said that it must be an act done by a competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights of others. In another authority the test laid down is that the body must decide rights after hearing evidence and considering the opposition raised. Reference in this connection may be made to Elbridge Watson v. R. K. Dass (A I R 1951 Cal. 430), Rex v. Legislative Committee of the Church Assembly ((1928) 1 K B D 411), The King v. North Worcestershire Assessment Committee ((1929) 2 K B D 397), Province of Bombay v. Khushaldas (AIR 1950 S C 222), Rex v. Electricity Commissioners ((1924 1 K B 171), Juggilal Kamlapat v. Collector, Bombay (A I R 1946 Bom. 280), Coper v. The Wandsworth Board of Works ((1863) 14 C B (N. S.) 180), None of the tests laid down in these authorities appears to be applicable to the case in hand as the Commis sioner's discretion appears to be unfettered under the Act. It follows, therefore, that a writ of prohibition would be inapt in the case of an act to be performed by the Commissioner in this context. The question was also raised whether section 223‑A of the Constitution Act is subject to the existing limitations found in the law in force prior to the enactment of this section. This question has now been settled so far as this Court is concerned by a Full Bench decision in Lal Khan v. Crown (P L D 1955 Lah. 215), (Criminal Miscellaneous No. 607 of 1954) decided on 20th December 1954, and the point, therefore, need not be laboured here. It has been held authoritatively that sec tion 223‑A of the Constitution Act is a paramount constitu tional provision which prevails over limitations existing in the previous law. From whichever aspect the case is con sidered, it seems to us, however, that the extraordinary remedy H of a writ of prohibition or mandamus which are writs not of right or of course, would not be appropriate in the circumstances of this case. The remedy seems to have been misconceived by the petitioner who had an obvious mode of redress under the election rules .by way of an election petition if he was so advised. A mandamus can only issue to supply defects of justice in all cases where there is a specific legal and no specific legal remedy for enforcing such right. It can also issue in cases where, although there is an alternative legal remedy, such mode of redress is less convenient, beneficial and effectual. No such case has been made out on the present facts. As has been discussed above, a writ of prohibition would not lie in these circumstances. I have, therefore, reached the conclusion that the petition should be dismissed with costs and I would order accordingly. It does not seem necessary in these circumstances and on the view I have taken to implead the A. D. M. Jhelum as a party, as was prayed for by .a petition. KAIKAUS, J.‑I agree. I would clarify that the applicability of the rule laid down by the Supreme Court of India in N. P. Ponnuswami v. The Returning Officer Namakkal Constituency to the powers of the Pakistan High Courts under section 223A of the Government of India Act is a matter for considera tion. With respect to the argument of Mr. Yaqub Ali that on our interpretation 'of section 237 the Provincial Govern ment may even set aside the order of the Election Commission. I would point out that under section 255 it is the Government that passes an order and once passed it becomes, by the words of that section, final. A. H. Petition dismissed.