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Petitioner: GHULAM MUHAMMAD VS Respondent: WEST PAKISTAN PROVINCE
P L D 1956 (W
P L D 1956 (W. P.) Lahore 572
Present: M. R. Kayani and Muhammad Sharif, JJ
GHULAM MUHAMMAD BUTT‑ Petitioner
Versus
THE WEST PAKISTAN PROVINCE‑Respondent
Writ Petition No. 25 of 1955, decided on 29th March 1956 under section 223‑A, Government of India Act, 1935.
(a) District Board Election Rules, 1952 (Punjab) Rule 69 --- Parallel enquiry under rule 69 pending an election petition‑Not justified‑Order of inquiry on motion of defeated candidate Without jurisdiction‑Case for issue of writ‑Government of India Act, 1935, S. 223‑A.
Where the Provincial Government ordered an enquiry into a District Board election on the application of a defeated candidate and the order was made while an election petition by certain voters was pending before the District Judge:
Held, (1) that the Government was not justified in direct ing a parallel enquiry under rule 69 without awaiting the report of the Election Commission;
(2) that the Government had exceeded the scope of rule 69 ; it could have acted only on "its own motion" and not at the instance of the defeated candidate. As such the enquiry was without jurisdiction, the rule could not bypass the provisions relating to election petitions.
Per Kayani, J.‑Rule 69 contains something akin to inherent power, which should not be exercised at the instance of a person who had other means of relief open to him. This should be particularly so when he has resorted to such means. . . The subject‑matter of the inquiry in the two cases being identical, the ordering of a second inquiry while the first is pending is liable to create a misunderstanding that the Government has no faith in the District judge, or that the Government desire that the inquiry should be conducted in a particular manner.
Per Muhammad Sharif, J.‑Rule 69 was intended to cover only those extreme cases where the Government felt that though there have been committed grave irregularities and extensive corrupt practices in the conduct of certain elections, the electors or the unsuccessful candidates have not come forward to challenge them . . . . . . The rule was not enacted with a view to abrogating the provisions relating to election petitions.
Where there is already an election petition pending before P an officer selected for an enquiry by the Government itself, another enquiry on the same facts and at the instance of the same party should be avoided till the election petition has been s finally disposed of.
Writs of certiorari, prohibition, and mandamus were issued.
(b) District Board Election Rules, 1952 (Punjab), Rule 50(e) ‑"Irregularity" in procedure of election is "material" only if it materially affects result of election.
Irregularity in the procedure of an election is "material" only when it "materially" affects the result of the election.
Where an abadi forming part of a revenue estate was not shown separately in the election programme, or where voters of a village not included in the Election Circle were shown as voters of that Circle, and it was not proved that these circum stances had "materially" affected the result of that Circle Held, that the irregularities were not material for avoiding the election.
Babu Dasu Sinha v. Babu Rajandhari Sinha and another Reports of Indian Election Petitions (1926‑28) Vol. III p. 80 ref.
Mahmud Ali for Petitioner.
A. R. Changez, Advocate‑General for Respondent No. 1 and Jamil Hussain Rizvi for Imtiaz Ali.
JUDGMENT
MUHAMMAD SHARIF, J.‑This writ petition under section 223‑A of the Government of India Act, 1935, by Ghulam Muhammad Butt of Narowal, Sialkot District, has arisen in the following circumstances. The petitioner, Imtiaz Ali and Muhammad Asghar were the three candidates who contested election to the District Board, Sialkot, from Circle No. 41, Narowal, in February 1955. The petitioner having been declared a successful candidate on the 4th of March 1955, his name along with other successful candidates was gazetted on the 1st of July 1955. On the 15th July, however, a new Gazette was issued, omitting the name of the petitioner from the list of successful candidates. The background for this delay first in gazetting the names of the successful candidates and then omitting the petitioner's name altogether is, according to the petitioner, provided by the following cir cumstances.
There were in existence before the District Board elections two rival factions in the district. One was led by Chaudhary Abdul Ghani, Member of the Legislative Assembly, and Member of the Constituent Assembly, while the other was headed by his opponents including the petitioner who styled themselves as the Dihat Sudhar Party. Chaudhary Abdul Ghani was a serious candidate for the chairmanship of the District Board, Sialkot, but as his party had failed to secure the requisite majority in the elections, he is alleged to have resorted to underhand means in order to win over the members belonging to the Dihat Sudhar Party and in order to accomplish that object he approached the Punjab Government to delay the election of chairman till such time as he had been assured of the support of a majority of the members. As the Deputy Commissioner was bound to call the first meeting of the District Board within five days of his receiving intimation of the result of the election, the names of the candidates who were duly declared to be successful under rule 41 of the District Board Election Rules, 1952 (hereinafter referred to as the Rules) were not gazetted by the Government this was obviously done on the assumption that a gazette notification was necessary before the meeting could be convened and the members could take part in it.
Now, it so happened that Imtiaz Ali, the defeated candi date, sent a petition to the Government on the 8th of March 1955 requesting them to hold an enquiry into the conduct of the election in Circle No. 41 Narowal. While this application was awaiting orders of the Government, five electors of the same Circle filed an election petition at the instance of lmtiaz Ali on the 18th of March 1955 praying that the election of the petitioner be set aside and Imtiaz Ali be declared as duly elected. Unmindful of the fact that the election petition had already been filed and was pending decision before the District Judge, Sialkot, the Punjab Government issued orders on the 25th of March 1955 directing Mr. Masud‑ul‑Hasan, Inspector Local Bodies, to conduct an enquiry on the application of Imtiaz Ali under rule 69. While the first application was still pending with Mr. Masud‑ul‑Hasan, Irntiaz Ali made another application to him sometime before the 4th of April 1955 (the application does not bear any date) supplementing his previous application of the 8th of March 1955. Mr. Masud‑ul -Hasan gave notice to, the parties, namely, Imtiaz Ali and Ghulam Muhammad Butt, on the 4th of April 1955 that he would visit Sialkot on the 9th of April 1955 in connection with the enquiry and that they should appear before him in the District Board Hall along with their evidence, which they wished to produce in their favour. On the representation of the petitioner that Mr. Masud‑ul‑Hasan was related to Imtiaz Ali. the Government appointed Mr. Azri, Deputy Secretary Local Self‑Government, to conduct a fresh enquiry into the allegations contained in the application of Imtiaz Ali. Though Mr. Azri submitted his report to the Government on the 28th of June 1955 he suggested that as the election petition was still under investigation before the Election Commission the result of his enquiry should not be intimated to the parties till the Government had received the report of the Election Commis sion, in order to avoid any possible conflict between his report and that of the Commission. This advice was ignored by the Government and they passed the final order on the 19th of September 1955 declaring the election of Circle No. 41 to be void and ordered that a fresh election should be held in December 1955.
The election petition by the five voters mentioned above was dismissed on the 29th of July 1935 as it had become mani fest from their application to the District judge that they did not wish to prosecute the same. .
It was further alleged by Ghulam Muhammad Butt in the writ petition that the Minister for Local Self‑Government had acted with bad faith because though four other petitions to the Government for holding an enquiry into the conduct of elections in Circle Nos. 49, 50, 56 and 57 were stopped on the ground that as the election petitions had been filed in all those cases it was not proper, to hold the enquiries, the enquiry in the petitioner's case was not stopped and the Minister, con trary to the advice of the Deputy Secretary, proceeded to pass orders adverse to him.
After enumerating a number of legal objections to the propriety and the legality of the order directing an enquiry under rule 69, the petitioner averred that the final order of the Government declaring the petitioner's election void was illegal as it was passed on an incomplete enquiry because the enquiry by Mr. Azri was a limited one and was confined only to the point of jurisdiction, i. e., whether or not he was competent to hold an enquiry into the allegations which were also being considered by the Commission in the election petition. In the end the petitioner submitted that as no material irregularity had been committed in the conduct of the election, the Govern ment was not justified in avoiding the same.
The first point raised by the learned counsel for the petitioner was that the Government was not legally competent to hold an enquiry into the conduct of election of Circle No. 41 on the application of Imtiaz Ali as before the orders for that enquiry had been passed on the application by the Govern ment a regular election petition had already been made by five voters of that circle at the instance of Imtiaz Ali and the petition had been duly forwarded by the Government to the District judge for enquiry. Now, there is no doubt that an election petition can only be made within fourteen days of the declaration of the election results and a sum of Rs. 250 has to be deposited into the treasury by a petitioner either at the time of, or before, presenting an election petition. The petition has also to be drafted strictly in accordance with the provisions contained in the relevant rules and an enquiry by a Commission has to be confined only to the averments men tioned therein unless for adequate reasons a Commission considers it necessary to allow .the petitioner to amend his petition. If the petition is beyond limitation or the security has not been furnished it must be dismissed. Lastly, every election petition shall be enquired into as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trials of suits and it can be dismissed for default. The relevant rules may be reproduced with advantage.
"52. (1) An election petition against the return of a candidate at a District Board election or against the return of a chairman or Chairman, or against or an unsuccessful candidate with a view to his disqualification under rule 66 on the ground of a corrupt practice or material irregularity in the procedure shall be in writing, signed by a person who was a candidate at the election or by not less than five electors, and the petition shall be presented to the Deputy Commissioner or an Assistant Commissioner or Extra Assistant Commissioner appointed by the Deputy Commis sioner in this behalf within fourteen days after the day on which the result of the election w is declared, provided that the limit of fourteen days prescribed by this rule may be extended by the Deputy Commissioner if there are in his opinion sufficient grounds for such extension.
(2) The petitioner shall enclose, with the petition, copies of the petition and of its enclosure, equal to the number of respondents."
"54. (1) At the time of or before presenting an election petition, the petitioner or petitioners shall deposit or cause to be deposited in the treasury, the sum of two hundred and fifty rupees in cash or in Government promissory notes of equal value at the market rate of the day as security for all costs that may become payable by him or them.
(2) If a petitioner by whom the deposit referred to in sub‑rule (1) has been made withdraws his election petition as provided in rule 59 and in any other case after final orders have been passed on the election petition, the deposit shall, after such amount as may be ordered to be paid as costs, charges and expenses has been deducted, be returned to the petitioner by whom it was made and if the petitioner dies during the course of the enquiry into the election petition, any such deposit, if made by him shall after the amount of such costs as may be ordered to be paid have been deducted, be returned to his legal representative.
(3) All applications for the refund of a deposit shall be made to the Deputy Commissioner who shall pass orders thereon in accordance with these rules."
"55. The Deputy Commissioner shall forward every election petition received by him under rule 52 to the Punjab Government."
"56. If any of the provisions of sub‑rule (1) of rule 52 or rule 54 have not been complied with, the Punjab Govern ment shall pass an order dismissing the election petition, and such order shall be final.'
(1) The enquiry shall be held in a place ‑to which the public have free access and notice of the time and place of enquiry shall be given to the parties not less than seven days before the first day of the enquiry.
(2) The place of enquiry shall be within the district, provided that the Commission may, on being satisfied that special circumstances exist rendering it desirable that the enquiry should be held elsewhere, appoint some other con venient place for the enquiry.
(3) Subject to the provisions of these rules evey election petition shall be enquired into as nearly as may be in accord ance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits provided that if the Commission consist of more than one person it shall only be necessary for it to make or cause to be made a memoranda of the substance of the evidence of any witness:
Provided further that a Commission may dismiss an elec tion petition for default."
Now, there is no doubt that rule 69 provides that the Punjab Government may of its own motion direct an enquiry to be held into the conduct of any election if there is reason to suspect that a corrupt practice or material irregularity has been committed and the case shall be dealt with so far as may be in the manner prescribed in these rules, but it is obvious that all those conditions which must be satisfied as a pre requisite to the filing of an election petition do not exist in the case of an enquiry by the Government under this rule, and if an unsuccessful candidate is permitted to seek his remedy under this rule, all the provisions relevant to an election petition will be held nugatory. Surely this could not have been the object of making rule 69 nor was the rule intended to provide two opportunities to an unsuccessful candidate to harass his adversary and force him to face two parallel enqui ries into the conduct of the same election, nor was it intended to afford an opportunity to the Government to select a report of its own choice in case the two reports‑one by the Election Commission and the other by the Commissioner appointed by the Government under this rule‑were found to be conflicting. Now, we know that Imtiaz Ali's application to the Govern ment contained almost all those allegations which had formed the basis of the election petition filed by his supporters and was for all intents and purposes another election petition requiring the Government to hold an enquiry into the conduct of election in Circle No. 41. We also know that it was not accompanied by a sum of Rs. 250 as is required in the case of an election petition under rule 54. Although it may be argued on the language of rule 69 that an enquiry under that section is free from the limitations imposed on election petitions, we cannot get over the fact that the present enquiry was held at the instance of no other person than Imtiaz Ali himself who was fully competent to seek his remedy by way of an election petition, and the rule was merely utilised by the Government to relieve him of all those risks and obligations which are enumerated in the relevant rules relating to the election petitions. After carefully studying the provisions of the Punjab District Boards Act and the rules made thereunder, we are left in no doubt that rule 69 was intended to cover only those extreme cases where the Government felt that though there have been committed grave irregularities and extensive corrupt practices in the conduct of certain elections, the electors or the unsuccessful candidates have not come forward to challenge them either on account of paucity of funds at their disposal or on account of the fear of the elected candi date or because they had been bought over by him. The rule was not enacted with a view to abrogating the provisions relat ing to election petitions nor with a view to confer any new right on a person who is a persona grata with the Government, nor with a view to permitting a candidate to avenge his defeat on his adversary without incurring any expense or risk. The words "the Punjab Government may of its own motion" in the rule are of high significance in appreciating the circumstances under which such enquiries should be held by the Government. Though it is not necessary to define the exact scope of the words mentioned above, there can be no manner of doubt that a defeated candidate cannot be permitted to avail himself of the machinery envisaged in this rule, thereby completely relieving himself of the obligation of filing an election petition. Without intending to limit the circumstances in which action may be taken under this rule, we may presume that Government would normally not act without authentic information; and no information can be more authentic than that given by the district officer who is the best person to bring cases of flagrant irregularities and corrupt practices to the notice of the Government in cases where those are likely to go unnoticed due to the absence of an election petition. Action should be taken only in the broader interests of justice and fair elections and all semblance of favouritism or bias in favour of any particular person for political reasons should be avoided. Where there is already an election petition pending before an officer selected for an enquiry by the Government itself, another enquiry on the same facts and at n the instance of the same party should be avoided till the election petition has been finally disposed of. We have no hesitation in recording disapproval of the manner in which the Government permitted itself to be utilized by Imtiaz Ali for his personal ends.
Before concluding our discussion on this part of the argument, we wish to add that we are not impressed by the subsidiary argument of the learned counsel for the petitioner that after an election petition has been concluded the Government is bound to accept the report of the Selection Commission under rule 65 and is thereafter barred from holding another enquiry under rule 69, and that it was for that reason that they hurriedly launched an enquiry on the application of Imtiaz Ali without awaiting the report of the Election Commission. Firstly, the language of rule 69 itself does not permit of any such interpretation and the proviso to the rule makes it abundantly clear that the final decision rests with the Government, and secondly, because section 55 subsection (2), item (iii) of the Punjab District Boards Act provides in unequivocal terms that for avoiding an election it is the Government which must be satisfied that the person elected has been guilty of corrupt practices. The satisfaction contemplated in this subsection is that of the Government and not that of an Election Commission. We think it unnecessary to elaborate this point any further and feel that it will be enough to reproduce rule 65 and item (iii) of subsection (2) of section 55 of the putt Act itself.
Rule 65. "The Commission shall submit a report of its finding to the Punjab Government and on receiving it the Punjab Government shall pass orders either declaring the candidate duly elected or declaring the election to be void. Such orders shall be final and shall be notified in the Gazette :
Provided that the Punjab Government before passing final orders, may refer any point arising in any case to a Civil Court for opinion, and the Civil Court shall deal with any case forwarded to it as nearly as may be according to the procedure applicable under the Code of Civil Procedure, 1908, to the hearing of appeals."
Section 55 (2) (iii). "for making void the election of any person proved to the satisfaction of the Provincial Government to have been guilty of a corrupt practice or to have connived at or abetted the commission of a corrupt practice or whose agent has been so proved guilty or the result of whose election has been materially affected by the breach of any law or rule for the time being in force;
'We wish to add that wherever an intention to the contrary was contemplated by the Government, it made it clear by enacting a special provision to that effect. As a concrete instance we may refer to sub‑paragraph (3) of paragraph in Part III of the Government of India (Provincial Elections Corrupt Practices and Election Petitions) Order, 1936, which reads as follows :‑
"The report shall be signed by the Commissioners and the Commissioners shall forthwith forward their report to the Governor, who on receipt thereof shall issue orders in accordance with the report and publish the report in the Government Gazette of the Province, and the orders of the Governor shall be final."
Now we pass on to the next and the last point raised by the learned counsel for the petitioner who contended firstly that because the enquiry conducted by Mr. Azri was incomplete, having been confined only to the competency of the Punjab Government to hold an enquiry at a stage prior to the conclusion of the election petition, the Government could not base any decision on it, and secondly because on the facts established during the enquiry by the Government no material irregularity was proved to have been committed in the conduct of the election in Circle No. 41, and the decision of the Government was, therefore, illegal and was not covered by the provisions of rule 41, which provides as follows :‑
"(1) When the counting of votes has been completed, the Inspector Local Bodies or a person authorised by Provincial Government shall forthwith declare the result.
The candidate who is found to have obtained the greatest number of valid votes shall be declared to have been elected; provided that if it is impossible to determine which candidate has obtained the greatest number of votes owing to two or more candidates having obtained an equal number of votes, the Inspector Local Bodies, or a person authorised by Provincial Government shall decide by drawing lots, in presence of such candidates and election agents as may be present, which of such candidates shall be deemed to have been elected and shall declare him elected accordingly. Provided that if the candidates give in writing that instead of drawing lots, the issue shall be decided among them by re‑polling, Government may order a re‑poll among the candidates.
(2) When he has declared the result, the Inspector Local Bodies, or a person authorised by Provincial Government shall make the ballot‑papers into convenient bundles close and seal them with the seal provided and after recording on each bundle a description of its contents, and the date of the election to which it refers, shall keep them in safe custody.
(3) The Inspector Local Bodies, or a person authorised by Provincial Government shall prepare and certify a return setting forth -----
(a) the names of the candidates and the number of valid votes given for each candidate ;
(b) the name of the candidates elected ; and
(c) the number of votes declared invalid.
The Election Officer, Local Bodies, or a person authorised by Provincial Government shall cause one copy of the return to be posted at the office of the Board and another copy to be forwarded to Government through the Deputy Commissioner."
Now, there is no manner of doubt that a strong exception was taken to the jurisdiction of the Punjab Government to hold an enquiry before Mr. Azri who while upholding the objection did recommend to the Government that they should not take any action on his recommendation till the report of the Election Commission had been received by them, but it is equally clear that Mr. Azri did go into…
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