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Civil Appeals Nos. 42 and 43 of 1957, decided on 20th Febru ary 1958.
(On appeal from the Judgment and Order dated the 29th March 1956 of the High Court of West Pakistan In Writ Petition No. 25 of 1955.)
Dictated by political considerations Courts not to canvass political reasons underlying action so long as action is within law.
The actions of any Government which is a representative Government of the parliamentary type, are rarely free from politi cal considerations. That aspect of governmental action is best left to be ventilated and either criticised or approved in the forums to which it properly pertains namely the legislature and the public platform. The Courts are concerned exclusively with the admini stration and implementation of written laws which are provided for the guidance of the Government and for the protection of the rights of the people. It is a rare case indeed in which a necessity can truly be felt to refer to the political considerations by which any governmental action is guided, or may be inferred to have been guided, when the question before the Court is as to the competency or propriety of the action in question as judged in the light of the law applicable to the subject. In other words, so long as the action is within the law, it is unnecessary, and may be harmful to the public interest, to canvass the political reasons underlying the action. For the protection of the subject who seeks the aid of the Courts it is sufficient that the action taken on its face should be judged against the provisions of the law.
. 52 & 57 (I) Election petition‑Deemed to be "pending" only on date on which it was entrusted to District Judge for inquiry.
An election petition under rule 52 cannot be said to be pend ing until at any rate, it was received by the Government although it would be more correct to describe it as pending from the date on which it was entrusted to the District Judge under rule 57 (1) of the Punjab District Board Election Rules.
. 69‑Serious irregu larities in conduct of election committed by Government officials- To be inquired into by Provincial Government under r. 69.
If an election is found to be vitiated by serious irregularities in the conduct of the election by officials of Government, it would be a proper exercise of the powers of the Provincial Government under rule 69 to enquire into the irregularities through experienced officials having special knowledge of the purpose and practice of allegations, who can be described in the relevant regard as experts.
rr. 52 & 69‑Respec tive scope.
Rule 69, Punjab District Board Election Rules affords a means of avoiding an election which is available to Government, within certain restrictions, and seems to stand on the same footing as the earlier rule 52, which gives to a defeated candidate or other aggrieved parties, being electors, a right to challenge the return of the successful candidate on grounds of the commission of corrupt practices or of material irregularities. There is no indication in the words of the two rules that one of them is to be treated as being supplementary to the other or to represent a residuary power as against a main or substantive provision conferring the general power. If regard be had to the extent of power conferred by the two rules, it cannot be denied that the scope of rule 69 is wider than that of rule 52.
The Rules are intended to apply to District Boards elections generally, and consequently to operate in relation to an infinite variety of circumstances, so that the safe course for the Courts to follow when they are called upon to judge of the validity of the action taken under rule 69 is clearly to judge of the legality in relation to the circumstances of each particular case as it arises. In general, rule 69 is not intended to be available for private persons seeking relief of the nature which rule 52 is intended to provide. It is possible to see in rule 69 an intention that the action contemplated by the rule should be taken upon considera tions of public interest, as to which the Government is in the best position to judge.
Actions of Government in a matter of this kind cannot be rightly judged by reference exclusively to the advantage or otherwise which a private party may gain thereby. Such a mode of treat ment is likely to lead to an unfair estimation of governmental action, which should always be judged from the standpoint that it has been taken in good faith unless the contrary is established. It is always possible, and clearly in every case most desirable, for action taken by Government, which purports to be taken in accordance with the law, to be judged by the Courts strictly in relation to the relevant law. The process is not assisted by the placing of emphasis to any extent upon the political purposes which might be inferred to underly the action.
r. 69‑Government can declare an election void only on grounds sufficient for avoidance of election under rr. 57, 62 & 65.
No election can be declared void under rule 69 unless the Government is satisfied that a material irregularity has been com mitted, which could furnish a sufficient ground for avoidance of the election under rules 57, 62 and 65.
Due publication after revision on objections ‑No further objections can be entertained‑Roll valid basis for election‑Punjab District Board Election Rules, r. 12.
After an electoral roll has been revised and duly published, no further objection can be taken to it, and the election is to be held on the basis of that roll.
The intention of the Punjab District Board Election Rules is that the electoral roll is finalised by action taken under rule 12. This view is based upon a settled principle of election law that Election Commissions cannot go behind the final electoral rolls as amended in accordance with the final orders of the revising authority. It is settled that every person, whose name is entered in this electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualification.
Stove v. Jolliffe 9 L R C P 734 and Pembroke Boroughs case 50 M & 14 135 rel.
C. A. No. 42 of 1957.
Manzur Qadir, Senior Advocate, Supreme Court (M. Ismail Bhatti, Advocate, Supreme Court with him) instructed by Magbool Ahmad, Attorney on behalf of M. A. Rehman, Attorney on record for Appellant.
Riasat Ali Khan, Advocate Supreme Court instructed by Amjad Hussain, Attorney for Respondent No. 1.
S. A. Mahmud, Advocate Supreme Court, instructed by Ijaz Ali, Attorney for Respondent No. 2.
C. A. No. 43 of 1957.
S. A. Mahmud, Advocate Supreme Court instructed by Ijaz Ali, Attorney for Appellant.
Riaswt Ali Khan, Advocate Supreme Court, Instructed by Amjad Hussain, Attorney for Respondent. No. 1.
Manzur Qadir, Senior Advocate Supreme Court (M. Ismail Bhatti, Advocate Supreme Court with him) instructed; by Maqbool Ahmad, Attorney for Respondent No. 2.
Dates of hearing: 19th and 20th February 1958.
‑This judgment will dispose of Civil Appeals No. 42 of 1957 by Imtiaz Ali and No. 43 of 1957 by the Province of West Pakistan. Both the appeals have been preferred on the basis of a certificate granted by the High Court of West Pakistan that the case is a fit one for appeal under Article 158 of the Consti tution.
The order appealed from is one by a Division, Bench of the High Court directing the issue of writs as below viz.: ‑
(1) A writ of certiorari quashing an enquiry conducted by the Provincial Government under rule 69 of the Punjab District Board Election Rules, 1952 ;
(2) a writ prohibiting that Government from holding a fresh election to the Sialkot District Board from the constituency described as Circle No. 41 (Narowal);
(3) and a writ of mandamus directing the Provincial Govern ment to publish the name of one Ghulam Muhammad Butt as a successful candidate from the above‑mentioned constituency at the election held in February 1955.
Immediately after the election, Ghulam Muhammad Butt had been declared to be the successful candidate. This was on the 4th March 1955, but it was not until the Ist July 1955 that the fact was published in the official Gazette, and on the 15th July 1955 a fresh Gazette was issued in which the name of Ghulam Muhammad Butt did not appear. The explanation for this unusual occurrence is that the defeated candidate lmtiaz Ali had made an application to the Provincial Government on the 8th March 1955, to the effect that the election was vitiated by irregularities in regard to the definition of the electorate and intimation to the voters from a particular area of the date and place fixed for the casting of their votes in the election programme. Certain proceedings took place upon this application which were brought to notice for the first time at the hearing in this Court. These need not be mentioned here in detail and for the present we may state only that on the 25th March 1955 a Government order was made appointing Mr. Masud‑ul‑Hassan, Inspector of Local Bodies to enquire into the allegations of Imtiaz Ali. This action purported to be taken under rule 69 of the Punjab District Board Election Rules. Mr. Masud‑ul‑Hassan gave notice to the parties for a hearing on the 9th April 1955, but upon complaint by the opposite party that he was connected with the defeated candidate Imtiaz Ali, Mr. Masud‑ul‑Hassan was relieved of the duty which was entrusted to Mr. Azri, then Deputy Secretary in the Department of Local Self Government. Mr. Azri made enquiries and submitted his report on the 28th June 1955. After this, but apparently not by reason of Mr. Azri's report, the Provincial Government on the 19th September 1955 made an order to the effect that the election from Circle No. 41 (Narowal) was void and it should be held again. Against this order, the successful candidate Ghulam Muhammad Butt filed a petition in the High Court in its jurisdiction under section 223‑A of the Government of India Act, 1935 for a writ to secure substantially the reliefs which were eventually awarded by the High Court. Against the reliefs so granted, Imtiaz Ali and the Province of West Pakistan have preferred separate appeals to this Court.
In his application, Ghulam Muhammad Butt made numerous and detailed allegations regarding what may be called the political background of the election, and charged the Government with having acted for the benefit of his rival on grounds of a political character, and not in the public interest. Eventually, the learned Judges In the High Court came to the conclusion that in this case, "the Government permitted itself to be utilised by Imtiaz Ali for hi, personal ends," and in reaching this conclusion on the basis of the action, of the Government as proved on the record, it would appear that the learned Judges were influenced to an appreciable extent by what had been alleged regarding the political background of the matter. In our view, formed after mature consideration, the points in issue were capable of being dealt with on a strictly legal interpretation of the rules, without any reference to the purposes of any of the parties, or to those of the Provincial Government. The actions of any Government which is a repre sentative Government of the parliamentary type, are rarely free from political considerations. That aspect of governmental action is best left to be ventilated and either criticised or approved in the forums to which it properly pertains namely the legislature and the public platform. The Courts are concerned exclusively with the administration and implementation of written laws which are provided for the guidance of the Government and for the protec tion of the rights of the people. It is a rare case indeed in which a necessity can truly be felt to refer to the political considerations .a by which any governmental action is guided, or may be inferred to have been guided, when the question before the Court is as to the competency or propriety of the action in question as judged in the light of the law applicable to the subject. In other words, so long as the action is within the law, it is unnecessary, and may be harmful to the public interest, to convass the political reasons underlying the action. For the protection of the subject who seeks the aid of the Courts it is sufficient that the action taken on its face should be judged against the provisions of the law.
The validity of the enquiry ordered by the Government under rule 69 aforesaid was challenged on the ground that it was not competent so long as there was pending an election petition under rule 52 of the same Rules. By this rule it is provided that an election petition may be preferred against the return of a candidate at a District Board election to unseat him on the ground of com mission of a corrupt practice or of a material irregularity in the conduct of the election, and this may be preferred by a person who was a candidate or by five or more electors, within 14 days after the result of the election has been declared, by petition to be presented to one of a number of specified officers. A sum of Rs. 250 is required to be deposited at the time of presenting the petition (Rule 54). The petition is to be forwarded by the Deputy Commissioner to the Government and may be dismissed if it shows that the requirements of rules 52 and 54 have not been complied with, but if it is not dismissed, the petition is to be referred to a commission for enquiry and report upon the allegations contained therein. The enquiry is to be public and to be held within the district so far as possible. It is to be conducted as nearly as may be in accordance with the procedure applicable to the trial of suits under the Civil Procedure Code, 1908. In the present case, such a petition was filed by five electors on the 18th March 1955 before the Deputy Commissioner. It was forwarded to the Provincial Government on the 9th April 1955, and it was entrusted to the District Judge of Sialkot for enquiry under rule 57, in the capacity of a commission, on the 25th April 1955. No action was taken upon this petition. It does not appear that notices were sent to the opposite parties. It seems quite clear that the persons who filed the petition were watching the progress of the application mode by Imtiaz Ali for interference by the Government under rule 69, for on the 28th June 1955, the very date on which Mr. Azri submitted his report to the Government, an application for withdrawal was sent by the five petitioners in writing to the District Judge. As the petitioners had been absent throughout, the District Judge dismissed the petition in default on the 29th June 1955.
It seems quite clear, that on the date on which the Provincial Government ordered an enquiry under rule 69, which will be mentioned In detail presently, this date being the 25th March 1955, the election petition had not yet been received by the Provincial Government. It had been deposited with the Deputy Commis sioner only seven days earlier. It was not until the 25th April 1955, a whole month after the order had been made appointing Mr. Masud‑ul‑Hassan to hold an enquiry under rule 69, that the election petition was entrusted to the District Judge for enquiry, and as has been mentioned above, no steps whatsoever were taken in pursuance of that petition which was dismissed for default a little over 2 months later.
Rule 69 of the District Board Election Rules, is in the follow ing terms: ‑
"The Government may of its own motion direct an enquiry to be held into the conduct of an 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."
In view of the objection taken that the Government was not legally competent to hold an enquiry under rule 69, while an election petition under rule 52 was pending, it became the duty of the High Court to construe these rules in the light of the facts and circumstances of the case. The conclusions reached by Mr. Justice C. M. Sharif, who wrote the leading judgment were as follows. Pointing out that an election petition was subject to certain restric tions in regard to limitation, depositing of security in an appreciable sum of money, that it required the formulation of precise allegations and was subject to a precise procedure governing the enquiry, the learned Judge stated that no such restrictions applied to an enquiry under rule 69. In his opinion the result was that if an unsuccessful candidate were permitted to seek his remedy by rule 69, all the restrictive provisions of rule 52 and the other rules applying to election petitions would be rendered _ nugatory. Moreover, the returned candidate might by this means be forced to face two parallel enquiries at the same time. On this point the learned Judge observed as follows: ‑
"We know that Imtiaz Ali's petition 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.
He further opined as follows: ‑
"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."
On the point of construction, the learned Judge thought that rule 69 was intended to cover extreme cases where the Provincial Government felt (a) that grave irregularities and extensive corrupt practices had been committed but (b) the election was not being challenged either for lack of funds or out of fear of reprisal by the returned candidate, or because those interested to challenge the election had been bought over. In his opinion rule 69 was not intended to derogate from the provisions relating to election petitions. Again, a condition 9f action under rule 69 was that action should be by the Government "of its own motion" and the defeated candidate could not be permitted to take advantage of this rule and to relieve himself of the difficulties attached to the presentation and prosecution of an election petition. He finally observed that action under rule 69 "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." Then follows the conclusion of the learned Judge upon the point of conflict between the modes of challenge provided by rules 52 and 69. It is expressed in the following words: ‑
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 the instance of the same party should be avoided till the election petition has been finally disposed of."
The views of Mr. Justice Kayani, who concurred with the conclu sions reached by Mr. Justice C. M. Sharif were closely similar to those which have been stated above. Mr. Kayani thought that when. a defeated candidate moves the Government under rule 69, the Government cannot be said to be acting of its own motion", within the meaning of rule 69. In his opinion, rule 52 provided a mode of relief open to an aggrieved person or persons while rule 69 applied in cases where the aggrieved party has not the means to prosecute a petition or may have waived the right on receiving his price, and at the same time the Government regard the corrupt practice or irregularity as being so "enormous" as to call for interference. He considered that it would be improper to allow a defeated candidate to harass the successful candidate by a simple application to the Government under rule 69 when, if he had proceeded in the way open to him as a person with a private grievance, he would have to observe the rules of limitation and of security. He thought also that it was repugnant to recognized procedure to allow two parallel enquiries to be conducted with the same purpose and under the same procedure. For this and other reasons, the learned Judge came to the conclusion that it was "clear that an enquiry under rule 69, if it is conducted on the motion of the defeated candidate, will amount to the adoption of a device," and reached the further conclusion, regarding the duty of the Government in a case like the present that "the Government should not act at the instance of a party, which can file an election petition, and that if a petition which is in substance an election petition is received beyond fourteen, days or is not accompanied by security it must be dismissed."
Elaborate arguments have been pressed before us by the counsel appearing for the two appellants, as to the correctness of the views expressed by the learned Judges on this point. We do not propose, since we do not find it necessary for reaching a decision in this case, to express either approval or disapproval of these views. It seems perfectly clear that in the present case there was only one enquiry, namely the enquiry under rule 69. The entrustment of the election petition to the District Judge of Sialkot as an ex‑officio commission appears to us as an act performed by the Government in the discharge of their duty under rule 57 (1) which lays down that if the election petition is not dismissed under rule 56 the Government shall appoint a commis sion to hold the enquiry into the allegations contained in the petition. That duty was performed, but it is perfectly clear that no enquiry was commenced upon the election petition and there fore by what might be called the wisdom of the parties, all the inconveniences of parallel enquiries were completely avoided. Moreover, we do not think that it is strictly correct to say that the action taken by the Government under rule 69 was taken when an election petition was pending before them. The appointment of Mr. Masud‑ul‑Hassan was indeed made about a fortnight before the election petition reached the Government. It cannot be said to be pending until at any rate, it was received by the Government, although it would be more correct to describe it as pending from the date on which it was entrusted to the District Judge, which in this case was the 25th April 1955. . Therefore, some of, the observations of the learned Judges as to the action incumbent upon the Government when an election petition is pending, would appear to be not strictly relevant to the present case. In our view, speaking with due respect, the action taken by the Government in the present case was prior in time to any date from which it can be said that the election petition filed against Ghulam Muhammad Butt was pending. Further, we consider that it is necessary to point out that nothing was done in the present case to avoid the restrictions which the law imposes upon private persons, who challenge the return of a successful candidate, for within the time limited by law and after satisfaction of other requirements, an election petition was actually filed. The learned Judges have stated that this petition was filed by Imtiaz Ali's supporters. Before us it was strongly contended that these persons were in fact supporters of Ghulam Muhammad Butt, and to prove this, reference was made to their prompt action in with drawing the election petition on the very date on which Mr. Azri made his report. Be that as it may, even upon the view of the learned Judges, there was clearly no attempt to utilise the provisions of rule 69 by way of a device to avoid the more difficult procedure under rule 52.
In more than one place the learned Judges have observed that lmtiaz Ali's petition to the Government invoking action under rule 69 was to all intents and purposes an election petition, and that it contained almost all those allegations which formed the basis of the election petition filed by the five electors. The documents are on the record, and we regret to find that they do not support these conclusions. In the petition, Imtiaz Ali referred to three specific cases in which there had been irregularities in the preparation of the electoral rolls and in the election programme as published. The first allegation related to Mohalla Ganj Hussainabad, which was stated to lie half within and half without the municipal limits of Narowal. Only those voters who lived outside the municipal limits of Narowal were qualified to vote at a District Board election. It was said that the preliminary roll for this area which was published in accordance with the rules, was the roll prepared for the Punjab Legislative Assembly election, in which there was no distinction of residents within or without municipal limits. It was said that this had a misleading effect and prejudiced the petitioner because "claims and objections to inclusion and exclusion of names as prescribed in rule 8 (I) could not be filed by all the persons affected thereby." Yet it was admitted that a supplementary list was later published con taining 49 names of voters and further that this had been done in consequence of claims filed by these persons. , It was stated that in fact there were 112 voters in this area who were competent to vote in the District Board election and most of them did not file claims because they thought that their names would be automa tically included in the electoral roll, as they had been included in the roll for the Legislative Assembly election. The second specific case related to a habitation described as Murghi khana. It was stated that this was "a revenue estate in the Zail of Narowal" and that it was not mentioned in the polling programme with the result that the voters from this area had been prevented from casting their votes. The third specific allegation related to village Maujo‑ki‑Bhet. It was stated that this village fell within Zail Badhai Cheema and not within Zail Narowal to which Circle No. 41 was confined. The error arose because of the publication of the lists for the Assembly elections as the preliminary roll for the District Board election. For the purpose of the Assembly election there was no distinction between Zail Narowal and Zail Badhai Cheema. It was said that some 100 votes were wrongly cast by residents of Maujo‑ki‑Bhet at the election of Circle No. 41. The relief prayed in this petition was in the alternative. It was said that the Government might declare a fresh result after deducting "the illegal votes of village Maujo‑ki‑Bhet". In the alternative it was asked that a fresh election should be ordered.
These three specific allegations of irregularity were also contained in the election petition of the five electors, but in addition, there were precise allegations of bribery by payment of money, of false personation in the place of genuine voters as well as dead persons, of bribery by treating, of religious undue influence and of official undue influence. Reference to the list of particulars attached to the petition shows that there were no less than 4 allegations of bribery by payment of money to a large number of persons, 11 allegations of false personation, some of which involved more than one vote, 3 allegations of treating on five different dates at three different places, two allegations of the exercise of religious undue influence, and one allegation of undue influence by the exercise of official powers. It is clearly not correct to say that Imtiaz Ali's petition contained "almost all those allegations which had formed the basis of the election petition".
On comparison of the two documents it is clear that in his petition Imtiaz Ali confined himself to those irregularities which had arisen exclusively out of the manner in which Government officials had performed their duties in relation to the conduct of the election. It might be thought that these were matters which were peculiarly within the Province of the Government itself to enquire into for the purpose of ascertaining the true facts and to weigh those facts in relation to the result of the election. We feel no hesitation in saying that if an election is found to be vitiated by serious irregularities in the conduct of the election by officials of Government, it would be a proper exercise of the powers of the Provincial Government under rule 69 to enquire into the irregularities through experienced officials having special knowledge of the purpose and practice of allegations, who can be described in the relevant regard as experts. Such a proceeding would be a proper proceeding conducted in the public interest, and in the view which we take in the present case, the appoint ment of Mr. Masud‑ul‑Hassan, Inspector of Local Bodies in the first instance, and thereafter of Mr. Azri who held the higher post of Deputy Secretary in the Local Self Government Depart ment, was in each case, an act performed with this purpose in view. As to the correctness of the official action of the Govern ment, consequent upon the report we say nothing at this stage, but we think that it is of importance that we should make it clear that, despite the fact that Imtiaz Ali asked for personal relief in his petition, the main substance of his complaint was that Government officials had been at fault and there had been confusion in the exercise of the electoral right of voting in Circle No. 41. This confusion did not relate to anything done at the polling, but was due to the official action antecedent to the polling, and we think that Imtiaz Ali might have felt in perfectly good faith, that these matters were more appropriate for an enquiry under rule 69 than for an election petition. There fore, speaking with due respect, we do not find it possible to endorse the opinion expressed in the judgments delivered in the High Court that the Government allowed itself to be "utilized" by Imtiaz Ali for his personal advantage. In the result, the action of the Government left Imtiaz Ali to fight out the election once again. It did not secure to him a victory over his successful rival. It seems clear enough that Government paid no attention to the prayer made in Imtiaz Ali's petition for the recounting of votes and a declaration that he had himself been elected. It is by no means certain that if his prayer had been acceded to the majority of votes would have been found to have been cast for Imtiaz Ali.
The learned Judges have included in their respective judgments, general observations regarding the circumstances in which action by Government under rule 69 might be appropriate. In the light of the facts of the present case we have not found it necessary to hear a complete argument upon this aspect of the case. We must therefore not be understood either to approve or disapprove of the injunctions given in the judgments under appeal regarding the use to be made of rule. 69. That rule affords a means of avoiding an election which is available to Government, with certain restrictions, and seems to us to stand on the same footing as the earlier rule 52, which gives to a defeated candidate or other aggrieved parties, being electors, a right to challenge the return of the successful candidate on grounds of the commission of corrupt practices or of material irregularities. We do not find in the words of the two rules any indication that one of them is to be treated as being supplementary to the other or to represent a residuary power as against a main or substantive provision con ferring the general power. If regard be had to the extent of power conferred by the two rules, it cannot be denied that the scope of rule 69 is wider than that of rule 52. Since the operation of the two rules in the present case has been such as to avoid conflict we do not propose to say anything here as to the resolution, according to law, of any conflict that might arise. Nor would it, in our opinion be appropriate that we should attempt to formulate, and therefore limit, the scope of the action open to the Provincial Government under rule 69. We do not consider that the views expressed in the judgments delivered in the High Court on this point can be regarded, or intended to be regarded, as exhaustive of the circumstances in which Govern ment may exercise their power under rule 69. The Rules are intended to apply to District Board elections generally, and con sequently to operate in relation to an infinite variety of circums tances, so that the safe course for the Courts to follow when they are called upon to judge of the validity of the action taken under rule 69 is clearly to judge of the legality in relation to the circumstances of each particular case as it arises. In general, we agree with the learned Judges that rule 69 is not intended to be t available for private persons seeking relief of the nature which rule 52 is intended to provide. It is possible to see in rule 69 an intention that the action contemplated by the rule should be taken upon considerations of public interest, as to which the Government is in the best position to judge. Since we find no impropriety in the action taken in the present case, we need say no more than this on the subject of the scope of rule 69. We would like to add, however, that the actions of Government in a matte of this kind cannot be rightly judged by reference exclusively to the advantage or otherwise which a private party may gain thereby. Such a mode of treatment is likely to lead to an unfair estimation of governmental action, which should always be judged from the standpoint that it has been taken in good faith unless the contrary is established. And, as we have already observed, it is always possible, and clearly in every case most desirable, for action taken by Government, which purports to be taken in accordance with the law, to be judged by the Courts strictly in relation to the relevant law. The process is in our opinion not assisted by the placing of emphasis to any extent upon the political purposes which might be inferred to underly the action.
The two remaining points which were raised before the High Court are decided only in the judgment of Mr. Justice, C. M. Sharif. The first of these points was that Mr. Azri's enquiry was incomplete and moreover the facts established during the enquiry showed no material irregularity, and consequently the Government should not have acted upon it. The record of Mr. Azri's enquiry is not included in the paper book, nor is any copy of his report among the printed papers. It is consequently not possible to deal with this matter. We note that Mr. Justice C. M. Sharif also "found it advisable to ignore the first part of the argument" and to confine his attention to the second part of the conten tion namely whether or not any material irregularity was committed during the election. As to that, it seems that the allegation regarding Mohalla Ganj Hussainabad had been given up, for the judgment deals only' with the cases of the abadi known as Murghikhana and the village Maujo‑ki‑Bhet. As regards Murghi khana the learned Judge found that it was a habitation included in the revenue estate of Rasinwal which revenue estate was mentioned in the polling programme. The names of the voters from Murghikhana were included in the Rasinwal electoral roll, the right claimed for Murghikhana to be mentioned specifically in the election programme was not admissible because ordinarily only revenue estates were to be mentioned specifically, and where subsidiary abadis had been specialty mentioned that was done for reasons of special nature which did not apply in the case of Murghikhana Therefore, the learned Judge found no irregularity in relation to this area. As regards Maujo‑ki‑Bhet, however, he found, on admission, that this village did not fall within Narowal Zail, and that in fact about 154 voters from this village had polled their votes at the election in question. The learned Judge went on to say that the mere fact that there had been "improper recep tion of votes" cannot be regarded as a material irregularity until and unless the votes had been counted and it had been found upon elemination of these votes that the result was materially affected. As this had not been done in relation to the votes from Maujo‑ki‑Bhet, the learned Judge concluded that no material irregularity had been established in this case as well.
We note that in their reply to Ghulam Muhammad Butt's petition before the High Court, the Province of West Pakistan made the following declaration: ‑
"The election of the petitioner was declared void by the Government because the following material irregularities had been committed in the election of this constituency :‑
(i) The constituency in question consists of Zail Narowal and Zail Jassar. Abadi known as Murghikhana is included in Narowal Zail but was wrongly left out of this constituency from the election programme which was published only a day before the actual election. There were 24 voters in this abadi who were deprived to exercise their right of votes.
(ii) That village Moujo‑ki‑Bhet is a part of Badhai Cheema Zail but was wrongly included in Narowal Zail. There were 154 voters in Moujo‑ki‑Bhet who had illegally cast their votes in this constituency."
At this point it is desirable that we should repeat that rule 69 requires that a case into which enquiry has been directed by the Government, being a case of commission of corrupt practice or material irregularity "shall be dealt with so far as may be in the manner prescribed in these Rules". We construe these words as having the precise effect of confining the powers of the Govern ment within the limits of rule 57 read with rule 62 in relation to the avoidance of an election. By rule 62 it is provided that a commission appointed under rule 57 shall report that the election of a returned candidate "shall be deemed to be void" by reason inter alia of the commission of any material irregularity, in the opinion of the commission. That must be read with section 55 of the Punjab District Boards Act, 1883 which confers rule‑making power upon the Provincial Government and in relation to the avoidance of elections lays down that rules may be made "for making void the election of any person proved to the satisfaction of the Government to have been guilty of a corrupt practice or . . . . . the result of whose election has been materially affected by the breach of any law or rule for the time being in force". Conse quently, it is clear that the satisfaction which is requisite for the avoidance of an election on any one or more of the specified grounds is that of the Provincial Government and effect is given to this in the rules by the provision in rule 63 that on receiving the report of the commission the Government "shall pass orders either declaring the candidate duly elected or declaring the election to be void". We consider that by the addition in rule 69 of the words "the case shall be dealt with so far as may be in the manner prescribed in the rules" the power of avoidance of an election under that rule is assimilated to the power provided by rules 57, 62 and 65, in relation to election petitions. From this it follows that no election can be declared void under rule 69 unless the Government is satisfied that a material irregularity E has been committed, which could furnish a sufficient ground for avoidance of the election under rules 57, 62 and 65. In judging of the two cases of Murghikhana and Moujo‑ki‑Bhet regarding which the High Court had sufficient evidence before it, we consider that these principles should be borne in mind.
The case of Murghikhana affords no difficulty whatsoever and we feel no hesitation in endorsing the views expressed upon this allegation by Mr. Justice C. M. Sharif. It was indeed alleged by Ghulam Muhammad Butt in his reply to Imtiaz Ali's petition that voters from Murghikhana had actually cast their votes. This was not enquired into, but the complaint is fully met in our opinion by the admitted facts that Murghikhana is not itself a revenue estate and was therefore not ordinarily to be mentioned specifically in the election programme, and secondly that the voters of Murghikhana were included in the electoral roll of Rasinwal village of which Murghikhana is a subsidiary abadi. The voters from this abadi were thus afforded a full opportunity as required by law to cast their votes, and it is clear that no irregularity of any kind was involved in the omission of the name of this abadi from the election programme. The case of Moujo‑ki‑Bhet in our opinion falls under a different rule of election law from that cited by Mr. Justice C. M. Sharif, who thought that there was irregularity, but unless it could be shown to have materially affected the result it would not be possible to bring it within the category of "material irregularity" for the purpose of avoiding the election. It has been overlooked that Moujo‑ki‑Bhet was included in the electoral roll for Circle No. 41, which itself was prepared in accordance with law, that is to say after publication of a preliminary roll, invitation of claims and objections and after correction of that preliminary roll on the basis of decisions made by the Revising Authority in relation to such claims and objections as were received. If there was a defect in the preliminary roll by the inclusion therein of the names of voters from village Moujo‑ki -Bhet, that defect should have been brought to light by the making of a proper objection before the revising authority at the proper time. No such objection was ever made, and the electoral roll having been revised was duly published. Thereafter, no further objection could be taken to the electoral roll and the election was to be held on the basis of that roll.
In this connection, we may refer to rule 12 of the District Board Election Rules 1952, relating to the revision of a preliminary electoral roll. The revising authority is governed in its proceedings by sub‑rule 9 L R C P 734 of this rule in relation to the enquiry to be held and the orders to be passed. By sub‑rule 50 M & H 135 it is provided that no appeal shall lie from an order of a revising authority made under sub‑rule 9 L R C P 734, but within 3 days an application for revision of the order of the revising authority may be made to the Deputy Commissioner. The order of the Deputy Commissioner is final, and in the absence of a petition for revision, the order of the revising authority is final. This is made clear by sub‑rule (3) which lays down that every order of revising authority under sub -rule 9 L R C P 734 which is not set aside under sub‑rule: (3) and every order passed in revision by the Deputy Commissioner under sub‑rule 50 M & H 135 "shall be final and shall not be called in question either by the commission appointed under Part IV of these Rules or by any Court." We do not find in the rules any provision conferring finality upon entries in rolls which have not been made the subject of any claim or objection, but this omission is in our view to be regarded as accidental only, for it is perfectly plain that the intention of the rules is that the electoral roll is finalized by action taken under rule 12, so that its accuracy cannot be called in question by the commission appointed under rule 57. This view is based upon a settled principle of election law that Election Commissions cannot go behind the' final electoral rolls as amended in accordance with the final orders of the revising authority. It is settled that every person whose name is entered in this electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualification. A reference may here be made to the case of Stove v. Joliffe L R C P 734, where it was held that the register of voters is conclusive on a Returning Officer, as well as on any tribunal which is to enquire into the election unless there be some personal disqualification. In the Pembroke Boroughs case 50 M & H 135, it was held, that the register is conclusive and the people whose names are mentioned on it are presumed to have the necessary qualifications: "it may be that their names ought not to have been there, but they were there at the time of the election." It was declared also that the policy of the law is to make it necessary to raise all questions as to rights to vote before the Registering and Revising authorities, and this has been done by preventing any such question from being raised at any, other time, or in any other manner. These views have been approved in reported cases of elections to Legislative Assemblies in India as well. It is unnecessary for our purpose to refer to any of these cases as the rule is very well settled, and in our opinion complete effect is given to it by the provisions of rule 12 of the District Board Election Rule, which apply in the present case. Accordingly, if the names of voters resident in village Moujo‑ki‑Bhet were wrongly included in the electoral roll for Circle No. 41 in relation to any order which might have been passed as to the constituencies for the election in question, that point could not be raised at any stage after the finalization of the electoral roll for Circle No. 41, and the casting of votes by voters from village Moujo‑ki‑Bhet is therefore not to be regarded as an irregularity in relation to that election.
Consequently, neither of the grounds urged by the Provincial Government of West Pakistan as the foundation of the action taken by them under rule 69 to avoid the election from Circle No. 41, is valid for that purpose under the District Board Election Rules, 1952, and that is a sufficient reason for avoiding the order made by the Provincial Government in this case.
In the result, we confirm the order made by the High Court in this case, but for different reasons, and we hereby dismiss these appeals with costs.
A. H. Appeals dismissed.
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