Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
(and 4 others appeals)
Miscellaneous Appeal No. 53/1953, decided on 7th Septem ber, 1953.
, S. 18-Bars civil suit in respect of matters of representa tion and election even of a nature ultra vires the Returning Officer, e.g., cancelling a poll and holding another poll.
The expression "any matters" in section 18 is wide enough to cover matters of ultra vires."
The word "election" in section 18 has been used likewise in a wide sense and compendiously. A poll-and a fresh poll is nevertheless a poll takes place in the process of an election.
A civil suit to restrain the Returning Officer from holding a fresh poll after cancellation of the earlier poll was therefore barred under section 18.
Faiyaz Ali with Ormand, for the Appellant.
Sohail with Mohsin Siddiki, for Respondent in Miscella neous Appeal No. 53 of 1953.
Mohsin Siddiki, for Plaintiff-Respondents in all appeals.
Wahid-ud-Din A., for Defendant-Respondent in Appeals Nos. 53 and 56.
-These appeals arise out of suits filed against the Returning Officer, Karachi Municipal Election, alleging that in each of the five wards a poll was held on 24th April 1953 but that instead of counting the votes and declaring the result, the Returning Officer decided ultra vices to hold a fresh poll on 24th April 1953 cancelling the poll previously held, and praying for an injunction to restrain him from holding a fresh poll. Inamullah J. upon an application made an order for an ad interim injunction, and after cause was shown Lari J. granted a temporary injunction to restrain the fresh poll. The appeals are against the orders granting temporary injunc tions. As identical questions arise in all the appeals, we have heard and decide them together.
It was said for the appellant that the suits were impliedly barred under the provisions of section 17 of the City of Karachi Municipal Act, 1933 (Bombay Act 17 of 1933, hereinafter referred to as the Act), and expressly barred under each of sections 18, 254 and 255 of the Act, as also by the provisions of section 80 of the Code of Civil Procedure, 1908. The question of the effect of section 17 of the Act has been argued at length before us, but having regard to the conclusion we have arrived at as to the effect of section 18 of the Act, it is not necessary to do more than state the main arguments urged, and the principal authorities cited for the appellant and the plaintiff-respondents.
For the appellant, reference was made to sections 4 and 9 of the Code of Civil Procedure 1908, and on the principle enunciated by Willes J. in (1859) 6 C B (N S) 336, 356 = 141 E R 485, 495 which was approved in the House of Lords in (1919) A C 368, applied in A I R 1940 P C 105, 110, and adver ted to in A I R 1947 P C 78, 81, the argument was raised that the liability in suit being one created under the Act and not previously existing at Common law, the plaintiffs were confin ed to the form of remedy provided in the Act for enforcing it, and therefore the suits were barred by implication under section 17 of the Act. It was said that expedition and finality were two important objects which section 17 was designed to secure, and suits such as those filed defeat these objects.
For the plaintiff-respondents, it was said that under section 17 of the Act they can have set aside only the result of an election, but that they had a cause of action to restrain the result or mischief taking place, that the threatened act complained of was ultra wires, that the right of a civil Court to examine into cases where the provisions of an Act have not been complied with has been accepted in A I R 1940 P C 105, 100, and in A I R (1948) P C 33, 34, that right arises out of necessity from acts alleged to be ultra vices, and that a person having right is not bound to wait and let the mischief occur, but may seek to restrain it by an injunction as in (1901) 1 Ch. 894.
We now come to the interpretation of section 18 of the Act which reads as follows:-
"No suit, application or appeal shall lie to any Court in respect of any matters relating to or arising from representa tion and election, unless such suit, application or appeal is expressly authorised by this Act."
The section appears under Chapter II of the Act headed "Municipal Constitution", and under the caption "the Corporation". Section 8 states that the Corporation shall consist of the prescribed number of councillors to be elected as therein mentioned, sections 9-12 deal with incidental matters arising after the election of a councillor, sections 13 and 14 deal with disqualifications, while section 16 states when a councillor shall cease to hold office. Section 16 lays-down that questions as to disqualification shall be determined by the Judge of the Karachi, Small Causes Court, while section 17 requires election petitions to be heard and disposed of by the Judge of the same Court. Then, having mentioned particular causes and prescribed reliefs, the Act proceeds in section 18 to express a bar to suits, applications or appeals in words which fall now for interpretation.
The bar has been framed in comprehensive terms exclud ing only such suits, applications and appeals as are expressly authorised by the Act. The question then is whether the suits are "in respect of any matter relating to, or arising from representation and election". Again there is to be found here a striking width in the terms used, such as "in respect of" (as to which compare A I R 1927 P C 176, 184), "any matters", and "relating to or arising from." The expression "any matters" is wide enough to cover matters of ultra vires. The wordl" "election" follows the term "representation" which is wider as being the ultimate result of processes through which council lors come to represent their constituencies in the Corporation, and that seems to indicate as does the generality of the other terms used in the section that the word "election" bas been used likewise in a wide sense and compendiously. That a18 poll-and a fresh poll is nevertheless a poll-takes place in the process of an election admits of no question. The matter of ultra vires raised in the suits relates to or arises out of "elec tion."
That the words in which a bar is expressed may cover suits in which a matter of ultra vires is raised and found to exist, is illustrated by the case in A I R 1927 P C 176 where the terms of section 80 C. P: C. were held to bar a suit for an injunction to restrain an act ultra vires, in the absence of the prescribed notice having been given. Reference may also usefully be made to the case in A I R 1947 P C 78 = P L D 1947 P C 19
For the plaintiff-respondents reliance was placed on the following observations of Lord Thankerton in A I R 1940 PC105,110:--
"It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
The argument was that even if the jurisdiction was excluded by section 18 of the Act, the civil Court had jurisdic tion to examine into the suits filed in which it was alleged that the provisions of the Act had not been complied with.
These observations of Lord Thankerton were made while considering the provisions of section 188 Sea Customs Act, 1878, in the proviso to which appears the following finality clause :-
"Every order passed in appeal under this section shall subject to the power of revision conferred by section 191 be final."
The proviso assumes that the order made by the Special Tribunal, viz., the Collector of Customs was made in exercise of power and leaves the order open to challenge on the ground that it was not made in conformity with the power conferred, and reference may be made to A I R (1945) P C 157, 161, where a comparable finality clause was examined by Lord Thankerton.
Moreover, the context in which these observations were made must be borne in mind. The suit sought to recover the excess amount of customs duty collected from the plaintiff upon an order of an officer, of Customs an appeal from which under section 188 the Collector of customs rejected, and on revision under section 191, the local Government declined to interfere. The sole question in the appeal was whether the civil Courts had jurisdiction to entertain the suit, having regard particularly to the Special Tribunal set up in section 188 which contained in the proviso the finality clause mentioned. If this special tribunal had acted in non-compli ance with the provisions of that Act or in breach of the fundamental principles of judicial procedure, the civil Courts would have had jurisdiction, despite the finality clause, to examine into the case. The observations of Lord Thankerton are thus explained.
For these reasons we have reached the conclusion that section 18 of the Act bars the suits of the plaintiff-respondents, and we set aside the orders for temporary injunctions made in them. It is unnecessary to consider sections 254 or 255 of the Act or section 80 of the Code of Civil Procedure 1908. Costs of each appeal to be paid by plaintiff-respondents.
A. H. Appeals accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer