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Civil Petition for Special Leave to Appeal No. 252 of 1967, decided on 11th October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated .the 16th June 1 367, in Writ Petition No. 574 of 1967).

r. 19 read with Municipal Administration Ordinance (X of 1960), Ss. 125 & 3(8)‑Only Commissioner competent to hear election petition under r. 19 of Rules‑Petition, in absence of notification by Government to that effect cannot be heard by an Additional Commissioner.

Muhammad Shafi Sheikh, Senior .1 lvncate supreme Court instructed by M. B. Khizar Tamimi; Senior Attorney for Petitioner.

Memo for Respondents.

Date of hearing : 11th October 1967.

The only question raised in this petition for special leave to .appeal is : Whether the Commissioner, Multan Division, was competent to transfer an election petition for disposal to the Additional Commissioner of that Division. This question arises under the following circumstances.

The petitioner and respondents Nos. 1‑4 contested the election held on 26th February 1967, to fill two seats reserved for women in the Lahore Municipal Corporation and the result of the polling was as follows :

Tahira Haq, also known as Tahira

Gulzar 46 votes.

Begum Sakina Farrukh ............ 37 votes.

Begum Mahmooda Bashir ............ 20 votes‑.

Mrs. Fahmida Begum ............ 15 votes.

The fifth candidate, Mrs. Jose Phine Iqbal, however, did not secure any vote. Mrs. Tahira Haq and Begum Sakina Farrukh were declared duly elected. Begum Mahmooda Bashir then filed a petition under rule 19 of the West Pakistan Municipal Committee (Election of Members to Represent Special Interests) Rules, 1966, challenging legality of the election of Tahira Haq and the said petition was entrusted be the Provincial Government to the Commissioner, Lahore Division, for disposal. As the said Commissioner had been made a respondent in‑the election petition he returned it to the Government and thereafter the Provincial Government by a notification dated 10th September 1966, delegated its power to the Commissioner, Multan Division, and the Commissioner instead of dealing with the said petition himself transferred it to the Additional Commissioner, Mr. A. H. Khan Niazi. The question of' his competency to hear the petition was raised by Tahira Haq, but he overruled the objection and heard the petition. He held that Tahira Haq was not eligible to stand for election in view of the prohibitions contained in section 53 (1) (g) of the Electoral College Act and accordingly declared Begum Mahmooda Bashir as elected in place of Tahira Haq.

Tahira Haq then moved a writ in the High Court against his order. The learned Judges who heard the writ petition upheld her contention that Mr. A. H. Khan Niazi was not competent to hear the election petition and that the order passed by him was without lawful authority and of no legal effect. They, therefore, directed the Commissioner, Multan Division, to dispose of the election petition himself in accordance with law. Begum Mahmooda Bashir now sees special leave to appeal against the order of the High Court.

We are unable to accept the contention of the learned counsel that the Additional Commissioner was competent to hear the election petition because under the General Clauses Act the Word "Commissioner ' would include "Additional Commissioner".

Under rule 19 of the West Pakistan Municipal Committee (Election of Members to Represent Special Interests) Rules, 1966, an election petition has to be presented to the Provincial Government. Section 1.25: of the Municipal Administration Ordinance, 1960, empowers the Provincial Government to delegate such petition to the Commissioner. Clause (8), of section 3 of the Ordinance defines "Commissioner" as follows

"Commissioner means the chief officer in charge of the revenue administration of the Division concerned and, as respects the Federal Capital, the Administrator of Karachi, and includes any officer specially appointed by the Government to perform all or any of the function of a Commissioner under this Ordinance."

Now, the question is whether in the absence of any notification by the Government, the Additional Commissioner would be competent to hear the election petition.

The learned counsel attempted to press into service the definition of "Commissioner" in the General Clauses Act. Learned Judges of the High Court while following the principle that general law would not prevail over a specified enactment, rightly pointed out "that if a term has been defined in the special enactment then that definition has to be taken for the purpose of that enactment in preference to the one contained in the Act". It has also been rightly held that the Additional Commis sioner would not fall within the definition of "Commissioner" a given in section 3 (8) of the Ordinance. In these circumstances, we agree with the learned Judges of the High Court that as the Additional Commissioner, Multan, was not specifically empowered to hear the election petition, he had no jurisdiction to dispose of the same. The High Court was, therefore, justified in declaring his order to be without lawful authority and of no legal effect.

This petition is accordingly dismissed.

Leave refused.

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