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Petitioner: KHAN AJUN KHAN VS Respondent: THE GOVERNMENT OF WEST PAKISTAN
P L D 1958 (W
P L D 1958 (W. P.) Peshawar 191
Before Muhammad Shafi, Abdul Hamid and Habibullah Khan, JJ
Khan AJUN KHAN‑Petitioner
versus
THE GOVERNMENT OF WEST PAKISTAN and 8 others ‑Respondents
Writ Petition No. 314 of 1956, decided on 11th December 1957.
(a) Interpretation of Statutes
‑Rules framed under an enact ment have same force as provisions of enactment.
(b) Constitution of Pakistan
‑Rights conferred by Constitution may be abridged, whittled down or abrogated by Constitution.
(c) Constitution of Pakistan,
Art. 225 (3)‑Bye‑elections to interim Legislatures held under Rules framed by President‑Not challengeable by writ petition‑Constitution of Pakistan, Arts., 146, 170‑Art. 170 subject to Art. 146 West Pakistan Provincial Legisla tive Assembly (Filling of Casual Vacancies) Rules, 1956, Rule 18.
Under the Constitutional arrangements made under clause (3j of Article 225 of the Constitution, bye‑elections can be held to fill casual vacancies occurring in W esc Pakistan Legislative Assembly and if a bye‑election is held doubts or disputes arising out of it can be raised only by means of an election petition. No bye -election can be questioned in any Court of law. These constitu tional provisions made under Article 225 (3) of the Constitution operate by way of exception to Article 170 of the Constitution and remove elections from the purview of Article 170. Power conferred on the High Court under Article 170 of the Constitution has been abridged to that extent by the provisions made under Article 225 (3). Article 170 is subject to Article 146. That Article is also subject to any provision made under Article 225 (3 ).
The special provision under Article 225 (3) overrides the general provision of Article 170. If, however, no election has taken place at all, writ jurisdiction of the High Court would be invokable. But where an election has taken place, but in conduct ing it irregularities have been committed challenge can be offered to it by means of election petition only.
Amar Chand v. Prasanna 25 C W N 9 ref.
N. P. Ponnuswami v. Returning Officer Namudkal A I R 1952 S C 64 ; Ramkrishna v. Daosing A I R 1953 Nag. 357 ; Katesan v. S. M. Patri A I R 1954 Orrisa p. 87 ; Sadiq Wahab v. Iftikhar Husain P L D 1956 Kar. 371 and Muhammad Akbar v. Dr. Khan Sahib, Chief Minister of W. P. P L D 1957 Kar. 387 distinguished and dissented from.
Sadiq Wahab v. Syed Iftikhar Hussain and others P L D 1956 Kar. 371 examined.
Muhammad Sayeed and four others v. Election Petition Tribunal of West Pakistan ahd others P L D 1957 S C (Pak.) 91 and Raj Krushma Bose v. Binod Kanungo and others A I R 1954 S C 202 distinguished.
(d) Interpretation of Statutes
‑Special provision overrides the general.
(e) Writ‑Quo‑Warranto‑
Whether Gazette Notification setting out‑names of persons elected in an election sufficient answer to writ ‑Constitution of Pakistan, Art. 170.
Per Abdul Hamid, J.‑If a writ of quo‑warranto is issued, it would be sufficient answer to the writ if the respondents produce the Gazette Notification in which their names have been notified as elected members of the Assembly.
Per Muhammad Shafi, J.‑I am sceptical about accepting the proposition . . . . . . that even if a Writ of Quo‑warranto is issued, it would be sufficient answer to the writ if the respondents produce the Gazette Notification in which their names have been notified as elected members of the Assembly. I know of no rule relating to elections giving such a sanctity and finality to the Gazette Notification.
(f) Tribal Areas of Pakistan
‑History‑Constitution of Pakistan, Art. I (2) (c).
(g) Election
‑Validity may be questioned by any person who may be neither a voter nor a candidate.
(h) Constitution of Pakistan,
Art. 146‑Applies to permanent legislatures under the Constitution.
Dr. Abdur Rahim for Petitioner.
Ch. Muhammad Ali, A. A. G. for Respondents 1 to 3.
Sajjad Ahmad and Kh. Abdur Rashid for Respondents 4, 7, 8 And 9 not served.
Sh. Bashir Ahmad for Respondent No. 5. Faiyaz Ali, Attorney‑General for the State.
Date of hearing: 3rd and 4th October 1957.
JUDGMENT
ABDUL HAMID, J.‑An application has been presented to this Court by Khan Ajun Khan Gadoon under Article 170 of the Constitution praying for a writ of quo‑warranto, certiorari or any other appropriate writ against the respondents. According to the applicant's averments the cause for the writs in prayer arose out of the bye‑elections which were held for filling six casual vacancies in the Provincial Legislature of West Pakistan from the tribal areas adjoining Hazara and Mardan Districts. These bye -elections took place on 4‑10‑1956.
In the Provincial Legislature of West Pakistan six seats were allotted to tribal areas adjoining Hazara and Mardan Districts under paragraph 4 (h) of the Second Schedule to the Establish ment of West Pakistan Act, 1955. Six persons were elected to the Provincial Legislature in accordance with the provisions of section 11 of that Act when that Act was in force and the country was not yet under the domain of the new Constitution. These elections were challenged by means of an election petition. The Election Tribunal which entertained the challenge set aside those elections and ordered fresh elections in their place. When time for holding fresh bye‑elections came the Constitution of Pakistan was in force and the Establishment of West Pakistan Act, 1955 had gone out of existence. But under the arrangements made in the Constitution (Article 225) for the transitional period the Provincial Legislatures functioning immediately before the Consti tution day were required to‑perform the function of the Provin cial Legislatures after the Constitution Day. As casual vacancies were to occur in the Provincial Legislatures a clause was inserted in Article 225 of the Transitional Provisions, as clause 3, which empowered the President to make rules for filling casual vacancies in the Provincial Legislatures. In the exercise of those powers Rules were made by the President for that purpose on 10‑5‑1956 which were published in the Gazette of Pakistan as "West Pakistan Provincial Assembly (Filling of Casual Vacancies) Rules, 1956". To those rules a Schedule was appended and in para graph 4 (h) of Part C of the Schedule six seats were shown to have been allotted to Tribal Areas adjoining Hazara and Mardan District, In relation to casual vacancies occurring in respect of the seats allotted in the Schedule Rules 3 and 5 said:-
"(3) When a casual vacancy occurs a bye‑election shall be held to fill the vacancy and the Governor shall by Public Noti fication fix the date, place and time for holding the bye‑election,
(5) Where the seat of any member for which provision is made in the Schedule falls vacant a person shall be elected thereto and at such election only those persons shall be entitled to vote who were entitled to elect a member to the Interim Legislative Assembly for that seat".
The Governor in exercise of the power conferred by Rule 3 fixed 4th of October 1956 as the date on which by‑elections relat ing to the six seats assigned to Tribal Areas of Hazara and Mardan Districts were to be held and bye‑elections were held on that day at which six Respondents Nos. 4 to 9, were returned as elected. It is these bye‑elections which the petitioner has by this petition challenged on the grounds mentioned in paragraphs 5 to 13 of the petition.
The main contention of the petitioner is that these bye‑elec tions were not conducted in accordance with the Rules framed for the purpose and Respondents Nos. 4 to 9, have not been validly elected as Members of the Provincial Legislature of West Pakistan. It has been requested that they should be restrained from functioning as Members of ;that Legislature. A request has also been made for issuing a Writ of certiorari against Respondents Nos. 1 to 3 for the production of the record concerning these bye‑elections with a view to quashing the bye‑elections. There is also a prayer for a direction to Government to hold fresh bye‑elections in accordance with law.
On behalf of the Respondents a preliminary objection has been raised that in respect of matters relating to elections a peti tion for the issuance of writs under Article 170 of the Constitution Is' not competent. It has been contended that the right to claim writs has been conferred by the Constitution under Article 170 and if any other provision of the Constitution has in respect of any matter curtailed or withdrawn that right, no writ in respect of that matter can be issued. Reliance has been placed on certain provisions of Law to show that matters relating to elections to the Provincial Legislatures have been placed outside the pale of Article 170 of the Constitution. On examination of all the legal provisions which have been made after the promulgation of .the new Constitution . in respect of challenge to bye‑elections for filling casual vacancies in the Provin cial Legislature of West Pakistan constitutional position which obtained on the relevant day is as follows:‑
The Interim Legislature for the Province of West Pakistan was constituted in accordance with the provisions of section 11 of the Establishment of West Pakistan Act, 1955, and section 12 of that Act made provisions for challenging elections held under section I1 of the Act. That section said‑
"12, (1) If any doubt or dispute arises as to whether a person has or has not been validly elected to the Legislative Assembly constituted under section 11 of this Act, it shall be raised by a petition to the Governor of West Pakistan . . . . . ".
The Establishment of West Pakistan Act, 1955, was repealed by Article 221 of the Constitution but as Interim Provincial Legislative Assembly of West Pakistan was allowed, under Article 225 (2) of the Constitution, to function as Provincial Legislative Assembly and as casual vacancies were expected in that Assembly provision was made under clause (3) of that Article for filling casual vacancies. The President was empowered to frame Rules for that purpose and Rules were framed by the President which were published on 10th May, 1956 as "West Pakistan Pro vincial Assembly Filling of (Casual Vacancies) Rules, 1956". One of those (Rule 6) brought again into life the provisions of the Establishment of West Pakistan Act, 1955. That Rule says:‑
"6. The provisions of the Establishment of West Pakistan Act of 1955 and rules made thereunder shall apply to bye elections under these Rules as they applied to elections to the Interim Legislature held thereunder".
In that Act provisions relating to elections were enshrined ‑in sections I1 and 12. By the force of Rule 6 sections 11 and 12 of that Act came into operation in relation to bye‑elections to be held under Article 225 (3) of the Constitution. If we refer to section 12 we find that it says in subsection (1)‑
"(1) If any doubt or dispute arises as to whether a person has or has not been validly elected to the Legislative Assembly constituted under section 11 of this Act, it shall be raised by a petition to the Governor of West Pakistan".
After that, subsection (4) o:' that section says‑
"(4) For the purposes of investigation and decision of doubts and disputes the provisions of the Government of India (Pro vincial Elections) Corrupt Practices and. Election Petitions) Order, 1936 and Part E of the Punjab Legislative Electoral Rules, 1950 relating to corrupt practices and the final decisions of doubts and dispute as to the validity of an election shall apply with such modifications as the context may require".
Later on, subsection (6) of section 12 says‑
"(6) The validity of an election under section 11 of this Act shall not be questioned in any Court".
When we look at the Government of India Order of 1936 which has been brought into force by the aforesaid arrangement we find that paragraph 2 of Part III of that Order says‑
"2. No election shall be called in question except by an elec tion petition presented in accordance with the provisions of this part of this Order"
We find that by the force of Rule 6 of the Rules framed by the President under Article 225 (3) of the Constitution subsec tion (1) and subsection (6) of section 12, of the Establishment of West Pakistan Act, 1955 and paragraph 2 of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936 became part of clause (3) of Article 225 of the Constitution. It is an accepted principle of law that rules framed under an enactment acquire the same force which other provisions of the enactment possess. In this case rules framed by the President under Article 225 (3) of the Constitution have acquired the force of Constitutional provisions. Those Rules have made subsections (1) and (6) of the Establishment of West Pakistan Act, 1955 and paragraph 2 of the Order of 1936 a part of Article 225 (3) of the Constitution. This proposition receives support from Zain Noorani v. Secretary of National Assembly of Pakistan (P L D 1957 S C (Pak.) 46). But this is not all.
The West Pakistan Provincial Legislative Assembly (Filling of Casual Vacancies) Rules 1956 were further amended on 31‑7‑1957 and the amendments were published in Gazette Extra ordinary No. F. 2 (4) 57 Ref., dated the 31st July, 1957. After Rule 9, Rules 10 to 18 were added. Rules 17 and 18 of the Rules which are relevant say :‑
"17. For the investigation and decision of doubts and disputes raised in an election petition, the provisions of Part II of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order 1936 as amended by the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order (Punjab Amendment) .act, 1954 (Punjab Act VI of 1955), and of Part E of the Punjab Legislative Assembly Electoral Rules, 1950, shall, in so far as they are not inconsistent with these Rules apply with such modifications as the context may require".
"18. The validity of a bye‑election shall not be called in question except in the manner provided by these Rules".
The result ensuing from all the aforesaid arrangements made under the Rules framed under clause (3) of Article 225 of the Constitution is that bye‑elections held under that cause become challengeable through an election petition only and not otherwise. Resort to a Court. including the High Court is specifically barred whatever may be the method of access to that Court.
The source of this bar lies, as has been shown above, in Article 225 (3) of the Constitution. This Article stands in the transitional and temporary provisions of the Constitution which are special provisions relating to transitional period and being special provisions relating to transitional period they operate by way of exception to the general provisions lying in the main part of the Constitution. For this reason provisions of the Constitu tion which form part of Article 225 (3) override the general provisions contained in Article 170 and constitute an exception to it.
The proposition that a particular or a special provision in an Act overrides the general provisions of the Act and operates by way of exception is too well known to need any elaborate discussion. Halsbury's Laws of England contains in many places in Volume 27 (1913 Edition) statements to this effect. At page 136, it says‑
"A particular enactment wherever found must be construed strictly as against general provision".
At another place in the same volume it says :‑
"Special provisions as to particular properties following on general provisions contained in the same or an incorporated Statute are to be regarded as exceptions out of the general provisions". (pages 137‑138).
We find the same view expressed in the following language at pages 168 and 169.
"The general law of the country is not altered by special legislation made without reference to it, though a Statute passed for a particular purpose must so far as that purpose extends override general enactments. A general Statute may be repealed pro canto by a special Statute, an exception being made out of or a condition being imposed upon its general provisions".
"Where in the same or a subsequent Statute a particular enactment is followed by a general enactment and the later taken in its most comprehensive sense, would overrule the former the particular enactment is operative, and the general enactment is taken to affect only those other parts of the particular enactment to which it may properly apply".
To the same effect is the discussion of this subject in Maxwell on "Interpretation of Law" under the maxim Generalis special bus non derogant. The rule which applies to two separate Statutes one general and the other special applies with greater force to two separate provisions a general and a special in the same Statute. The same view has been expressed in a Calcutta case Amar Chand v. Prasamna cited as (25 C W N 9).
In this connection reference to the position obtainable under f the Indian Constitution is pertinent. The Supreme Court and High Courts in India are unanimous in the view that elections can be challenged before an Election Tribunal only. The writ jurisdiction of the High Court is not invokable for this purpose. A few of those authorities are A I R 1952 S C 64 ; A I R 1953 Pat. 290 (sic); A I R 1953 Nag. 357 and A I R 1954 Orrisa 87. Those authorities flow from the provision contained in Article 329 (b) of the Constitution of India. That provision is similar to. the corresponding provision in our Constitution contained in Article 146. In the case of India it is Article 329 (h) of the Indian Constitution which excludes, in respect of matters relating to election, the writ jurisdiction of the High Court which they possess under Article 226. In our case Article 146 will achieve that result in relation to elections which will be held for the permanent legislatures. But until that Article comes into application, elections to temporary Provincial Legislatures are to be governed by the provisions made under Article 225 (3) of the Constitution and that result is achievable by the rules framed under that Article Those rules have subjoined to Article 225 (3) the provisions of subsections (1) and (6) of section 12 of the Establishment of West Pakistan Act, 1955, the provisions of para graph 2 of the Government of India Order of 1936 and Rule 18. All those provisions prescribe the special mode by which challenge to elections should be offered and by their effect they bar the jurisdiction of all Courts including High Court.
If a brief discussion of the Indian position be tolerated it will be of advantage in the appreciation of our position because the provisions of the Constitution by which writ jurisdiction of the High Courts is barred in relation to elections to the Legislature are almost identical in both the Constitutions. In the case of India the bar emanates from the provisions of Article 329 (b) which runs as following ‑
"329. Notwithstanding anything in this Constitution . . . . . .
(b) no election to either House of Parliament or to the house of either house of 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 by or under any law made by the appropriate Legislature".
Relying on this provision in the Constitution the Indian Supreme Court and High Courts have held in clear language that their writ jurisdiction does not extend to matters relating to elections to the Legislatures. Disputes arising out of those elections are cognizable by an Election Tribunal only which is a special forum which the Parliament has created for that purpose. (fee A I R 1952 S C 64 ; A I R 1953 Pat. 290 ; A I R 1953 Nag. 357 and A I R 1954 Orrisa 87). In respect of disputes relating to elections to Municipal Corporations, Municipal Committees, Town Committees and Local and District Boards the High Court can exercise writ jurisdiction because in those cases the bar if any has been imposed by the Acts of Parliament or by Acts of State Legislatures and not by any provision of the Constitution. Elections to the Legislatures alone are protected by the Constitution from attacks in Courts. Writ. jurisdiction of the High Court extends to elections to the aforesaid bodies, because in the Constitution there is no provision in abridgment of writ jurisdiction of the High Court in respect of election to those bodies. There is a bar in the case of election to the Legislatures because the bar springs from the Constitution itself. In the case of India, it emerges from Article 329 (b) and in our case from Article 146. It is an undisputed rule of law that rights conferred by the Constitution can be abridged, whittled down or abrogated, by the Constitution. If it is in the competence of the Constitution to confer a right it is obviously also within its competence to prescribe conditions under which that right is to be) exercised and conditions under which its benefits will not bell available.
According to our Constitution elections to Federal ands State Legislatures are not challengeable in any Court at all. (Article 146). The right conferred by the Constitution on the High Court under Article 170 has been withdrawn in relation to these elections. But Article 146 will apply to elections which will be held under the Representation of Peoples Act, 1957. Elections held to temporary Provincial Legislatures under Article 225 (3),6 of the Constitution will be challengeable in the manner provided by the Rules made under that Article and if there is anything in those Rules which excludes the jurisdiction of the High Court that rule will take effect and will serve the same purpose for the transitional period as Article 146 will serve in relations to elections to permanent Legislatures.
Our attention has been drawn to two rulings of the Karachi Bench of the High Court where the learned Judges have held that the writ jurisdiction of the High Court extends to election to the Legislatures as well. The first ruling on the subject is reported as Sadiq Wahab v. Iftikhar Hussain (P L D 1956 Kar. 371). In that case election to fill a seat in the interim Legislature of West Pakistan under section 11 of ‑the Establishment of West Pakistan Act 1955 was challenged. In that case the petition was rejected on the ground that redress was available to the petitioner by way of election petition and it was said that a petition should have been presented before the Election Tribunal. But it was stated with out giving reasons that subsection (6) of section 12 of the Establishment of West Pakistan Act, 1955 did not constitute a bar in exclusion of the writ jurisdiction of the High Court. The learned Judges expressed themselves on this subject in the following language.
"As regards the second contention, we agree with Mr. Suhrawardi that subsection (6) of section 12 of the Act is not a bar to our writ jurisdiction. It is a jurisdiction conferred by the Constitution and it is the Constitution alone which can modify or restrict it. It cannot be taken away or limited by any Act of the Legislature".
The proposition that the writ jurisdiction which has been conferred by the Constitution cannot be restricted or abridged by an Act of the Legislature is undoubtedly above challenge. A jurisdiction conferred by the Constitution can be modified or restricted by the Constitution alone. But it appears that in that case it was not brought to the notice of the learned Judges that the Establishment of West Pakistan Act, 1955 was not an Act of the Legislature but was a constitutional document. It was an Act enacted by the Constituent Assembly. It amended the Government of India Act, 1935 and was a part of the Constitu tion. Its provisions had the force and effect of Constitutional provisions. If in section 12 (6) it said, in respect of elections held under section 11 of the Establishment of West Pakistan Act, 1955, that they will not be questioned in any Court but their validity will be tested by an Election Tribunal only, that special provision in that Act constituted an exception to section 223‑A of the Government of India Act, 1935.
The other case which bears on this subject is Muhammad Akbar v. Dr. Khan Sahib, Chief Minister of West Pakistan (P L D 1957 Kar. 387). That was a case in which under the Governor General's Order No. XII of 1955 a member was to be elected to the National Assembly by an electoral college consisting of the members of Shahi Jirga and the non‑official members of Quetta Municipality. It was found that persons who voted at that election as non‑official members of Quetta Municipality were not at the time of the election members of that Municipality but were utter strangers. The election was challenged by means of a writ petition. In defence it was urged that section 9 of the Constituent Assembly proceedings and Privileges Act,…
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