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W. P. No. 21 of 1956, decided on 3rd February 1956.

(a) Benches, constitution of‑Concern of Chief Justice--- Transfer of case from one Bench to another‑Case coming before a Bench other than the admitting Bench or the one passing any interlocutory order‑Not a transfer‑Sind Chief Court Rules (Original Side), Rule 11‑Rules and Orders of the High Court, Vol. V, Chap. 10 (A), Rule (1) proviso‑High Court of West Pakistan (Establishment.) Order, 1955, Arts. 4 (1) (c) and 11.

The order of a Bench admitting a case or an interlocutory order does not make the case part‑heard, and the case when it comes up before another Bench for hearing, after notice to parties, cannot be said to have come up after transfer to the latter Bench.

The Sind Chief Court ‑Rules (Original Side) apply to the Karachi Bench of the High Court of West Pakistan and under rule 11, all suits and proceedings instituted on any of the several sides of the civil original jurisdiction of the Chief Court are heard before the Chief judge or such Judge or Judges as the Chief judge from time to time nominates for that purpose.

This power of the Chief judge involves the power of transfer in individual cases.

Crown v. Abdul Aziz and Israr Hussain Cr. Misc. Appln. No. 42 of 1951 rel.

Zihar son of Yusuf v. The Government of State of Madhya Pradesh A I R (1951) Nag. 11 distinguished.

Moreover, under the proviso to rule (1) of Chapter 10‑A of the Rules and Orders of the High Court, Volume V, the Constitution of Benches is the exclusive concern of the Chief Justice The Chief Justice, High Court of West Pakistan in exercise of the powers conferred by Article 4 (1) (c) of the High Court of West Pakistan (Establishment) Order 1955, read with the above rule, assigned the Roster and Cause‑lists of the Karachi Bench to one of the judges sitting at Karachi who exercises these powers by reason of this rule and Article 11 of the High Court of West Pakistan Order, 1955.

Therefore, if a writ petition was admitted by a certain Bench of Judges and an ad‑interim stay order was passed, a different Bench before which the case was ultimately placed ,for hearing had jurisdiction to deal with the case.

(b) Writ ‑‑‑Election, dispute‑Returning office, acting with jurisdiction in rejecting nomination paper‑No patent error on face of record‑Writ refused‑Cantonments Act (11 of 1924), Ss. 13 (7) and 15 (4)‑Rules for Election to Interim West Pakistan Assembly, Rule (3).

The petitioner was nominated a candidate for election to the Interim West Pakistan Assembly by one H, an elected member of the Drigh Road Cantonment Board whose election had been notified in the Official Gazette on 4th November 1955 i.e.. after the Appointed Day (14th October 1955).

Held, that the Returning Officer had jurisdiction under Rule (3) of Rules for Election to the Interim West Pakistan Assembly to reject the nomination paper on the ground that H was not an elected member of the Board before the Appointed Day within meaning of sections 13 (7) and 15 (4) of the Cantonments Act (II of 1924). There being no patent error on the face of the record and no likelihood of irreparable injury to the petitioner having been shown to exist, exercise of writ jurisdiction was uncalled for.

Rule nisi was discharged.

H. S. Suhrawardy and Sharifuddin for Petition air.

A. Aziz and Fazlur Rehman for Respondents.

On 18th January 1956, this petition was filed, praying for the issue of writs in the nature of certiorari, mandamus and/or prohibition, or other appro priate writs, calling for the records, lists and nomination papers from the respondents No. 1 and 2, quashing all the proceedings, setting aside election of respondent No. 3, order ing fresh election after due preparation of the voters list, and for the issue of writ of prohibition and/or injunction restraining respondent No. 1 from notifying the alleged dec laration of election of Respondent No. 3 in the Official Gazette and also restraining respondent No. 3 from exercising any right or privilege as member of, the West Pakistan Legislative Assembly.

With the petition was presented an application under section 151 Civil P. C. for ad‑interim orders restraining the Respondent 1, the Returning Officer for the Interim West Pakistan Assembly for the areas of Karachi, Drigh Road, Malir and Manora Cantonments, 'from notifying the declara tion of election of Respondent 3 in the Official Gazette and further restraining respondent 3 from exercising any right or privilege as member of the West Pakistan Interim Legislative Assembly. The application was in aid of the two prayers above‑mentioned upon which Muhammad Bux and Lari, JJ, on 19th January 1956 issued interim injunction with notices, restraining respondent (1) from notifying election of the respondent (3) as prayed, and restraining respondent (3) from taking his seat and functioning as a member of the Assembly. The matter was not fixed for any date by them.

On 23rd January 195;, the advocate for respondent (3) presented an application for expeditious disposal before Muhammad Bachal, J. (appointed as delegate of the Chief Justice under article 11 of the High Court of West Pakistan Order, 1955) who fixed the rule for hearing on 3rd February 1956. before himself and Munshi, J.

It is now contended on behalf of the petitioner that this Bench has no jurisdiction to hear this matter. Reliance was placed on the ruling in Zihar son of Yusuf v. The Government of State of Madhya Pradesh (A I R (1951) Nag. 11). But the question in that case was whether there was any power in the Chief Justice of a High Court to withdraw or transfer a case of which a Divisional Court is in seisin having partly heard the advocates in the matter.

In this case, the matter had not been heard in part by the other Bench. The question of withdrawing, or trans ferring a case, from the other Bench, therefore, does not arise. Mere orders passed at the time of admission, upon the main application, or upon any interlocutory application which) accompanied the main application, does not make the matter part‑heard before the Bench, or the judge admitting or passing orders on the main application, or on the interlocutory application. The practice of the Chief Court of Sind over a very long period supports this view because matters admitted by a Bench or orders passed on interlocutory applications by the Bench ex‑parte are not required to be put up before the Bench constituted of the same judges when the matter comes up for hearing upon notices to the parties. To hold other wise would reduce the work of a Court to confusion, and it would never be possible then to alter or change the formation of the Benches, and the judges who constituted a Bench would have to remain on that Bench till the matter was finally disposed of.

The powers of the Chief Justice of a High Court have to be found under the rules of the Court or under any statutes. By an order dated the 1st November 1955, the Sind Chief Court Rules (Original Side) have been made applicable to this Court. Under rule 11, all suits and proceedings instituted on any of the several sides of the civil original jurisdiction of the Chief Court shall be heard before the Chief Judge or such judge or judges as the Chief judge shall from time to time nominate for that purpose. And, as held by that Court in Crown v. Abdul Aziz and Israr Hussain (Criminal Misc. Application No. 42 of 1951) this power involves the power of transfer in individual cases. It was further held that cases were removed from the file of one judge to another by general instructions given by the Chief Judge. Very occasionally such transfers were made by the Chief Judge at the instance of the parties, but transfers of this character were always made as administrative acts. The writ petitions fall under the extraordinary original jurisdiction of the Court. Under the proviso to rule (1) of Chapter 10‑A of the Rules and Orders of the High Court, Volume V, the constitution of Benches is the exclusive concern of the Hon'ble the Chief Justice. On 17th December 1955, he, in exercise of the powers conferred by Article 4 (1) (c) of the High Court of West Pakistan (Establishment) Order, 1935, read with the above rule, assigned the Roster and Cause‑lists of the Karachi Bench to Muhammad Bachal, J, who exercised these powers by reason of this rule and Article 11 of the High Court of West Pakistan Order, 1955. The objection to the jurisdiction of this Bench to hear the rule nisi must therefore be repelled.

Paragraph 8 (2) of the Second Schedule of the Establish ment of West Pakistan (Amendment) Act of 1955, pro vides that the elected members of the Cantonment Boards of Karachi, Drigh Road Malir and Manora, shall elect one member of the interim Legislature. On the 5th October 1955 Syed Iqbal Hussain was declared elected from the Drigh Road Cantonment under rule 37 (1) of the Cantonments Electoral Rules, 1952. The Election Commissioner, Respondent (2), mentioned his name in the list of voters from the Cantonment Board Drigh Road. The name of Iqbal Hussain was notified in the Government of Pakistan Gazette on the 4th November 1955. On or about 20th December 1955, Respondent (1) was appointed a Returning Officer for this area. On or about 30th December 1955, rules for elections to the interim Provincial Assembly were published. Rule (3), Third Schedule pro vides :‑

"The Returning Officer shall decide which of the persons so nominated have been validly nominated and are qualified for election and such persons are hereinafter referred to as the candidates".

On the 12th January 1956, Iqbal Hussain filled in nomination form in favour of the petitioner. The respondent (1) rejected the nomination paper on the ground that he was not an elected member before the appointed day, the 14th October 1955. He took into consideration sections 13 (7) and 15 (4) of the Cantonments Act 1924, which run as under :‑

"13 (7). Every election or nomination of a member of a Board and every vacancy in the membership thereof shall be notified by the Central Government in the Official Gazette".

"15 (4). An outgoing member shall, unless the Central Government otherwise directs, continue in office until the election or nomination of his successor is notified under subsection (7) of section 13".

It is contended that the Returning Officer overlooked the well known and recognised canons of construction and rules of interpretation and erred in construing the provisions of the Act. We see no force in this argument. Prima facie, in the absence of any rules for the preparation, revision and publication of electoral rolls of the interim Legislature, the Returning Officer had jurisdiction under rule (3) above mentioned to decide whether the petitioner had been validly nominated, and there appears no patent error on the face of the record in holding the date of notification in the Gazette as the date of election of the members of the Board, having regard to the provisions of sections 13 (7) and 15.(4) of the Cantonment Act, under which Iqbal Hussain and the out going member could not both be members till Iqbal Hussain's name was notified. The balance of inconvenience is on the side of the respondent (3). For while the petitioner's affidavit does not disclose, and his advocate has not shown, what irreparable injury he would suffer, the respondent (3), the successful candidate, will be deprived of his right of taking part in the proceedings of the Assembly. We do not at this stage consider it necessary to go into the contention that the petition is not maintainable in view of section 12, Clause (6) of the West Pakistan Act, 1955.

For these reasons, we discharge the rule nisi issued.

A. H. Rule discharged.

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