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Petitioner: S. M. WALI AHMED CHOWDHURY VS Respondent: MAHFUZAL HAQ CHOWDHURY
P L D 1957 Dacca 209
P L D 1957 Dacca 209
Before Amin Ahmed, C. J. and Rahman, J
S. M. WALI AHMED CHOWDHURY and another ----Petitioners
versus
MAHFUZAL HAQ CHOWDHURY, Chairman, District Board, Chittagong and others‑---Respondents
Writ Petition No. 5 of 1956, decided on 7th June 1956.
(a) Government of India Act, 1935, S. 223‑A‑Precise writ prayed for must be specified in application.
Held, that the power given by section 223‑A, Government of India Act, 1935, was limited to the issuing of what was known in England as "high prerogative writs", with regard to which the rule was that the precise order asked for ,and mode should be carefully defined.
However, in the present case, the Court did not discharge the rule nisi on the ground of omission to specify the writ prayed for, but, looking at the substance of relief, treated the application as one for a writ of mandamus.
Commissioner for Local Government Lands and Settlement Y. Abdulhusein Kaderbhai A I R 1931 P C 132 ref.
(b) Government of India Act, 1935, S. 223‑A‑Petition preferred under section 223‑A cannot be treated as one under Art. 170, Constitution of Pakistan after enforcement of latter.
Held, that the nature and scope of section 223‑A, Government of India Act, 1935 and Art. 170 of the Constitu tion of Pakistan are different. Moreover Art. 170 is not retrospective in effect. Hence, a petition under section 223‑A cannot be treated as one under Art. 170 after the enforcement of the Constitution.
Rajaram Dadu and others v. The State and another A I R 1951 Nag. 443 ref
(c) Writ‑Quo warranto‑---Where lies‑Illegal assumption of membership of District Board‑Writ lies‑Constitution of Pakistan, Art. 170.
Held, that an information in the nature of Quo warranto being intended for issue of a writ which lies against a person claiming and usurping an office or franchise, for determining his right to the office provided the office is a substantive corporate office, of a public nature, such a writ lies against members of a District Board returned as the result of an illegal election.
Queen v. Burrows (1892) L R I Q B 399; The King v. Beer ( I 903) L R 2 K B 693 and Darley v. The Queen 12 Clark & Finnley's Reports, House of Lords 52 ref.
(d) Writ‑---Questioning validity of election‑Remedy by election petition not availed of within time‑Laches‑Writ refused‑Government of India Act, 1935, S. 223‑A.
Where, in the circumstances of the case, the remedy by way of an election‑petition would have been equally inexpensive, expeditious and efficacious, relief by issue of a writ was refused by the High Court.
Since no election petition was filed within the time prescribed the right to act as elected members of the District Board had become vested in such members and the same could not be affected by the subsequent enactment of section 223‑A, Government of India Act even though it w as of the nature of a constitutional enactment unless the enact ment itself was either by express words or by necessary intendment given retrospective effect.
No such retrospective effect was given to section 223‑A when it was validated by section 3 of the Validation of Laws Act, 1955 after its invalidation by the judgment of the Federal Court in The Federation of Pakistan v. Maulvi Tamizuddin Khan P L D 1955 F C 24s0.
This being so, section 223‑A, could not affect a vested right and the remedy by way of a writ of quo warranto to question the validity of the election did not lie.
Where there are statutory provisions dealing with the conduct of an election, the writ of quo warranto is dis placed, and an election then can only be challenged in the manner laid down by the Statute.
Lachmandas Kewalram and another v. State of Bombay A I R 1952 S C 235; Muhammad Beary and another v. T. Hossain Kutty and another A I R 1951 Mad. 280; Shyamakant Lal v. Rambhajan Singh and others A I R 1939 F C 74; G. D. Karkare v. T. L. Shevde and others A I R 1952 Nag. 330; The State v. Zaverbhai Amaidas and others A I R 1953 Bom. 371; Queen v. Moaon L. R. (1892) Q B 39 and Bhairulal Chunilal v. State of Bombay and others A I R 1954 Bom. 116, ref.
The Writ of quo warranto like all other prerogative writs is purely in the discretion of the Court, and as in the case of all other discretionary reliefs the Court must be satisfied in each case that the persons seeking this relief have come before it with an honest intention, made the fullest possible disclosure of all material facts within their knowledge, and have not been guilty of any undue laches.
The High Court refused to issue the writ where the petitioners had been guilty of serious laches in that they had kept quiet over their rights for 10 months together, after the election.
Where a Court is called upon to grant a discretionary relief it may justly refuse to exercise its discretion in favour of a person who has not sought the relief at the earliest possible opportunity.
The King v. Speyer and The King v. Cassel (1916) L R I K B 595 distinguished.
(e) Bengal Districts Act (XXI of 1936)‑---Transference of area of one district to another‑Can be effected completely only by Notifications under all the relevant Acts‑Bengal Local Self Government Act (III of 1885), S. 10‑B.
An alteration of the limits of a District under the Begal District Act (XXI of 1936) does not ipso facto transfer the area affected, from one District to another for all purposes.
Even after an alteration under the Bengal Districts Act has been made alterations under the other Acts (for instance, for purposes of Civil and Criminal administration under East Bengal Civil Courts Act, 1887 or the Criminal Procedure Code, 1898) will still be necessary for the purposes of those Acts. Unless all appropriate Notifications have been made under all appropriate Acts it cannot be said that the transfer of a particular area from one district to another district has been completely effected.
Held, therefore, that if a part of Noakhali District was transferred to the Chittagong District under section 4 (1) (s), Criminal Procedure Code (V of 1898), and no Notification was issued under the Bengal District Act (XXI of 1936), the area in question was not transferred from one District to the other for purposes of Local Self‑Government.
In such a case, nomination by Government under of persons to represent the newly‑added area in the District Board of the Chittagong District, was held ultra vires.
(f) Bengal Local Self‑---Government (East Bengal Amend ment) Ordinance (I of 1955)‑Intra vires the powers of Governor.
(g) Writ‑Quo warranto‑---Private person may exhibit information even in respect of appointments absolutely in discretion of Government‑Constitution of Pakistan Art. 170.
Held, that a private person may exhibit information in the nature of quo warranto in respect of appointments which are in the absolute discretion of Government.
Miss Avi, J. Cama v. Banvarilal Agarwal and others A I R 1953 Nag. 81; King v. Speyer and The King v. Cassel (1916) LRIKB595ref.
(h) Writ petition‑---Attacking validity of constitution of a District Board‑District Board must be made a party to the petition.
(i) Bengal Local Self‑Government Act (III of 1885), S. 18‑H‑Participation of an invalidly nominated member in election for Chairman of District Board‑Election not rendered void thereby unless such participation has materially affected the result of election.
Under section 18‑H of the Bengal Local Self‑-Government Act even after an election of a member has been declared invalid, acts done by him before such declaration do not thereby become invalid, nor are the proceedings of the Board, in which be may have participated before affected by such declaration. The same principle should be adopted in a case where a nomination is declared subsequently to be invalid.
Hence, participation of invalidly nominated members, in election for the Chairman of a District Board, did not render the election void, unless such participation had materially affected the result of the election.
(j) Writ‑---Mandamus‑Condition for issue of‑Party apply ing for writ must have first demanded of the party, against whom writ is prayed, relief which is sought to be secured by the writ.
It is an essential and invariable condition for the issue of a writ of mandamus that it will not issue unless the party seeking it has not only stated upon affidavit that he has demanded of the party against whom the mandamus is sought that particular kind of justice which is sought to be enforced by the writ, and that such demand was met by a refusal, but has also satisfied the Court of this upon evidence.
Moussell & Co. (Chittagong) Ltd. v. Registrar of Joint stock Companies, East Bengal P L R 5 Dacca 389 rel.
A. Hossain, Ahmad Sobhan and K. Hossain for Peti tioners.
Naziruddin Ahmad and R. Islam for Respondent No. 1.
A. T. Sadi for Respondents Nos. 13, 14, 19, 20, 22, 24, 25, 27, 29, 33 and 35.
N. C. Nandi and Shafiqur Rahman for Respondents Nos. 2, 3 and 6 to 11.
M. Asir, Senior Government Pleader and Syed A. B. Mahmud Hussain, Assistant Government Pleader for Res pondent No. 38.
JUDGMENT
RAHMAN, J.‑---This Rule nisi was issued on the 17th February 1956, at the instance of two petitioners calling upon the respondents Nos. 1 to 36 to show cause as to why a writ of quo warranto or an information in the nature of quo warranto should not issue against them as also calling upon the opposite parties Nos. 37 and 38 to show cause as to why they should not forbear from acting upon or giving effect to the Notification No. 55‑L.S.G., dated the 4th January 1956, and why the same should not be recalled or cancelled.
The petitioners claim that they are residents of the District of Chittagong entitled to vote at District Board elections in the said District, and were duly elected members of the Chittagong District Board until the same was purported to be reconstituted on the 2nd February 1956. The respon dents Nos.1 to 36 are, according to the petitioners, wrongfully usurping the offices of the Chairman, Vice‑Chairman and members of the said District Board. Of these, it is alleged, respondents Nos. 4 to 11 are persons who purport to have been appointed by the Provincial Government to act as such members under section 7 of the Bengal Local Self‑Government Act (III of 1885), and respondents Nos. 2 and 3 are persons whom the Provincial Government claims to have appointed under a new section 10‑B introduced into the said Act by the Bengal Local Self‑Government (East Bengal Amendment) Ordinance (I of 1955). The rest of the aforesaid 36 persons claim to have been duly elected as members of the said Boa d at the last general election held on the 4th, 5th and 6th April 1955, and the respondents Nos. 1 and 24 also claim to have been duly elected as Chairman and Vice‑Chairman, respec tively, of the said Board on the 2nd February 1956.
The names of the said 36 persons, elected and nominated as aforesaid, were notified by the Provincial Government by the Notification No. 55‑L.S.G., dated the 4th January 1956, published in a Gazette Extraordinary on the 5th January 1956, and, as such, the petitioners also pray that the District Magistrate of Chittagong and the Provincial Government (respondents Nos. 37 and 38) should either be directed to forbear from giving effect to the said Notification or to recall and cancel the same.
Although by this application the petitioners seek to invoke the powers vested in this Court to issue Writs under section 223‑A of the Government of India Act, 1935, they have not chosen to specify the precise writ asked for against the respondents Nos. 37 and 38. The power given by the said section is limited to the issuing of writs only including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which are all of the kind known in England as high prerogative writs. Now with regard to such writs the rule is; as was pointed out by Lord Atkin, in the opinion of the Judicial Committee delivered by him, in the case of Commissioner for Local Government Lands and Settle ment v. Abdulhusein Kaderbhai (A I R 1931 P C 132); that "the precise order asked for and made should in such cases be carefully defined". It is important to remember that the high prerogative writs are by their very nature purely discretionary reliefs and of such a highly technical nature that even a formal defect may well prove fatal. In the present case, however, since the legal profession in this country has not as yet gained full familiarity with the technicalities attaching to such writs we do not propose to discharge the Rule against respondents Nos. 37 and 38 on the technical defect of form alone, but to look rather to the substance of the relief claimed, and to treat it as a Rule substantially for a Writ of mandamus as against the said respondents.
We might, however, mention here that although this application was filed and the Rule obtained prior to the coming into force of the Constitution of the Islamic Republic of Pakistan, the learned Counsel for the petitioners sought to contend before us that nevertheless this application should be treated as one under Article 170 of the Constitution, and since the said Article vested this Court with wider powers of issuing appropriate directions or orders, which were not confined merely to the issuing of high prerogative writs, the defect above alluded to was, in any event, of no consequence. This argument appears to us to be based upon a mis-appreciation of the true nature and scope of the said Article. The pro visions of the said Article do not relate purely to matters off procedure and cannot, therefore, be given retrospective effect particularly as there is nothing in the Constitution itself to indicate that the said provisions were intended to operate retrospectively. Indeed the indication, if any, in the Con stitution itself is to the contrary, for Article 219 thereof has expressly made the provisions of the General Clauses Act off 1897, applicable for the interpretation of the Constitution, and furthermore provided that for this purpose the Acts repealed by the Constitution should be deemed to be Central Acts within the meaning of the said General Clauses Act. The Government of India Act, 1935, is one of such Acts repealed by the Constitution. By reason of the provision of clause (e) of section 6 of the General Clauses Act, therefore, the repeal of the Government of India Act, 1935, does not affect pending proceedings commenced under the said repealed Act, and the rights of the parties to such proceedings are to be governed according to the law as it existed when the action or proceeding was begun. This also appears to be the view prevailing in India with regard to the interpretation of Article 226 of the Indian Constitution which is in almost identical terms.
In the case of Rajaram Dadu and others v. The State and another (A I R 1951 Nag. 443), where after an application had been filed on the 16th June 1949, for revision either under section 115 of the Code of Civil Procedure or under clause 11 of the Letters Patent of the Nagpur High Court or under section 107 of the Government of India Act, 1915; read with section 223 of the Government of India Act, 1935; an attempt was made on the 20th November 1950, to amend the petition by including therein reliefs by way of writ of certiorari or other appropriate direction, order or writ under Articles 226 and 227 of the Indian Constitution, a Full Bench of the said High Court held that the remedies provided by the said Articles could not be invoked as they were not retrospective in operation and refused the amendment. For this view their Lordships of the Nagpur High Court also found support from a majority decision of the Supreme Court of India in the case of Keshavan Madhava Menon v. The State of Bombay (A I R 1951 S C 128). In the latter case an attempt was made to question the legality of a prosecution under the Press (Emergency Powers) Act, 1931, pending on the date of the Constitution of India came into force on the ground that the relevant provisions of the said Act under which the offence was alleged to have been com mitted were inconsistent with the fundamental rights conferred by the Constitution and, therefore, void. The Supreme Court of India by a majority of four as against two dissenting, upheld the decision of a Special Bench of the Bombay High Court, consisting of three learned Judges, to the effect that the Constitution of India had no retrospective operation, and as such, a proceeding pending at the date of the commencement of the Constitution was not affected even if the provisions of the Statute alleged to have been violated were inconsistent with the fundamental rights conferred by the Constitution.
Having dealt with the arguments of the learned Counsel for the petitioners on this preliminary point, we propose now to deal with the main questions arising in this case. For a proper appreciation, however, of the said questions it is necessary to set out the relevant facts upon which the argu ments advanced before us have been founded.
It is alleged that the term of the old District Board of Chittagong expired and its reconstitution by fresh elections and nominations became due on the 19th October 1954, but before any steps could be taken in that behalf the Provincial Government by its Notification No. 5038‑G.A., dated the 24th December 1954, which was published in the Dacca Gazette on the 6th January 1955, directed that certain Mauzas specified in the schedule to the said Notification comprised in the Police Station of Sandwip which had hitherto formed part of the District of Noakhali shall be included in the Sadar Subdivision of Chittagong District with effect from the 25th December 195.4. Although this Notification purported to have been made in exercise only of the powers conferred by clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898, the petitioners maintain that it effected a complete transfer of the said Mauzas to the District of Chittagong for all purposes and this necessitated, according to them, a fresh delimitation of the constituencies for the purposes of election of members to the said District Board in accordance with the provisions of Rule 2 of the Rules for direct Election of Members of District Boards framed under section 138 read with section 36‑D (2) of the Bengal Local Self‑Government Act, 1885. This, according to the petitioners, was not done, but the District Magistrate of Chittagong by his Notifications Nos. 24‑Elec. and 25‑Elec., dated the 20th January 1955, and published in the local Gazette on the same day called upon certain constituencies mentioned in the schedules to the said Notification No. 24‑Elec., together with their respective territorial extents, to elect members for the general and reserved seats as also fixed the dates for the filing and scrutiny of nomination papers, withdrawal of candidature and polling in exercise of his powers under section 16‑A of the said Act, and Rules 2 and 44 of Part II of the said Rules. The schedules above referred to did not, however, include the Mauzas directed to be included in the Sadar Subdivision of Chittagong by the Notification No. 5038‑G.A. of the 24th December 1954. The petitioners challenge the validity of this Notification, and the elections held in pursuance thereof, and claim that the respondents Nos. 1 and 12 to 36 who claim to have been elected at this invalid and illegal general election have no right to act as members of the said District Board and should, therefore, be declared to have usurped the said public offices of members of the said District Board.
Thereafter, it is stated, the Provincial Government by its Notification No. 55‑L.S.‑G., dated the 4th January 1956, published in the Gazette of the following day notified not only the names of the respondents so illegally elected but also purported to announce the names of 10 other persons said to have been nominated by the said Government. Of these nominated persons eight purported to have been appointed under section 7 of the Bengal Local Self‑Government Act, and two under section 10‑B; introduced into the said Act by the Bengal Local Self‑Government (East Bengal Amendment) Ordinance (I of 1955), which was promulgated on the 21st December 1955; for representation of the areas of Sandwip which the said Notification stated were transferred to the Chittagong District. It is contended that the nomination of 10 members was illegal and ultra vires as the Provincial Govern ment had already fixed by its Notification No. 171‑L.S.‑G., dated the 20th February 1940; issued in exercise of its powers under section 7 and subsection (1) of section 36‑B of the Bengal Local Self‑Government Act; that the District Board pf Chittagong shall consist of 34 persons of whom 26 shall be elected. Furthermore that the appointment of 2 persons to represent Sandwip was, in any event, illegal, ultra vires, mala fide and in abuse of the powers of Government. The Ordinance I of 1955 itself is also challenged by the petitioners on the ground that it has been made in bad faith for a collateral purpose, and in abuse of the Ordinance making powers.
In these circumstances, it is further alleged, that the District Board of Chittagong was
not lawfully reconstituted and could not validly elect any Chairman as it purported to do on the 2nd February 1956, in spite of the illegalities in the constitution of the Board, and as such, the election of the respondent No. 1 as the Chairman was wholly illegal and void. The said respondent had no right or authority to act as such Chairman and should also be declared to be usurping the said office which was a corporate public office.
The petitioners also seek to challenge the election of the Chairman upon the allegations that the same was procured by undue influence exerted by one of the Ministers of the Pro vincial Government who influenced the result of the election by inducements, intimidations, threats of official pressure and harassment, and by wrongfully procuring the nominations of persons who would support the respondent No.1, who, it is alleged, is one of the henchmen of the said Minister.
It will be apparent from the statement of the petitioners' case given above that the main objective of this application is to challenge the election of the Chairman, but to achieve this objective the petitioners have had perforce also to challenge the constitution of the Board itself from the initial stage for having regard to the fact that the Chairman was elected by a clear majority of 7 votes, the petitioners would otherwise stand little chance of successfully assailing the said election. It will be convenient, therefore, to take up for consideration first the question as to whether the petitioners are entitled to a Writ of quo warranto as against the respon dents Nos. 1 and 12 to 36, the elected members. If the petitioners succeed in this, then it may not be necessary to go into the other questions for in that even the Board concerned must be declared to be improperly constituted and the sub sequent elections invalid.
On this question the learned Counsel for the petitioners has contended that an information in the nature of a quo warranto lies against a person claiming and usurping an office or franchise for determining his right to the office provided the office is a. substantive corporate office of a public nature and the person proceeded against is in actual possession and user of the office in question. According to him the office of a member of a District Board is similar to a Municipal office created by Statute which has consistently been held in England to be an office in respect of which quo warranto proceedings will lie. For this purpose the learned Counsel relies on the cases of the Queen v. Burrows ((1892) L R I Q B 399) and the King v. Beer ((1903) L R 2 K B 693).
In the former case it was held that an information in the nature of quo warranto would lie to inquire into the validity of the election of a Clerk to a Vestry according to the test laid down in Darley v. The Queen (1), namely, that the "source of the office, the tenure and the duties" determine the applicability of a proceeding of this kind. If the office is created by Charter or Statute, the duties are of a public nature and the tenure is sufficiently secure, then it comes within the class of cases in respect of which such a proceeding lies. The office of the Clerk of the Vestry which was under considera tion in that case, it appears, was created by Statute, which cast upon him the duty of preparing the Jury list, and the holder of the office was not removable except by resolution of the Vestry subject to the veto of the Local Government Board which could however, itself dismiss him. Similarly in the case of the King v. Beer, it was held that a quo warranto would lie to question the election of a…
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