P L D 1957 (W (PLP)

LARI, J.

G-G's Order XII of 1955 provided for the setting up of the second Constituent Assembly. It was to be composed of 80 members one of whom was to be a representative of Baluchistan. Clause 4 1;3) laid down that the representative of Baluchistan shall be elected by the members of the Shahi Jirga and the non-official members of the Quetta Municipality. Rule 3 of the Scheduie to the afore said Order provided that in case of Baluchistan any member of the Shahi Jirga or any non-official member of the Quetta Municipality could nominate one person to fee a candidate for election. Nomination was to take place on 16th June 1955 and election was to take place on 21st June 1955 by virtue of a notification issued on 28th May 1955. On 28th May 1955 the Quetta Municipality did not exist at all and its functions were being performed by a committee of 22 persons nominated by the Agent to the Governor-General virtually under section 12 (2) (b) of the Quetta Municipal Law 1946 till another Municipal Committee was constituted in accordance with the provisions of Quetta Municipal Law. No steps were taken to re-constitute the Municipal Committee but nominations were invited and election was held in which the members of the Committee performing the functions of Quetta Municipality were allowed to participate along with the members of Shahi Jirga: Dr. Khan Sahib the opposite party was declared to be elected to the Constituent Assembly on 21st June 1955 by the Returning Officer. The Petitioner who is neither a member of the Shahi Jirga nor a non-official member of Quetta Municipal Committee but is a citizen of Pakistan domiciled in Baluchistan has filed this petition for issue of a writ in the nature of quo-warranto declaring the alleged election of the respondent to the Constituent Assembly now styled National Assembly as null and void. The case of the petitioner is that a somewhat similar constituency for election of member to the interim legislative assembly of West Pakistan from Quetta had been created and election held. An election petition No. 13 of 1956 against the elected member was filed by Qazi Muhammad Issa and this was disposed by the Election Petitions Tribunal, West Pakistan on 9th May 1956. Therein it was held that Quetta Municipal Committee did not exist at all since 15th March 1955 and consequently the election was null and void. The findings of the Tribunal were accepted by the Governor of West Pakistan and the elected member was unseated. The petitioner then realised that election of Dr. Khan Sahib was also colourable and no election at all. Hence the petition. It is not disputed by the respondent or the Attorney -General that on the date of election the Quetta Municipal Committee did not exist, the nominated members of the Committee entitled to exercise the powers of the Municipal Committee of Quetta were wrongly allowed to participate in the election and that the election was not held in accordance with the requirements of G.-G.'s Order XII but the petition is contested on the following grounds: (1) The petitioner has no locus standi to present the petition. (2) The petition was untenable in view of provisions of Articles 223 and 146 of the Constitution Act. (3) A specific alternative remedy had been provided by the law and the petitioner having failed to avail of the remedy under the special Act dealing with the matter was debarred from having recourse to an extraordinary juris diction of this Court. (4) The result of the election had not been affected by the illegality in election. (5) The petitioner has come after a long delay arid should not be allowed the relief claimed. The rule that no person may invoke the Court's aid in respect of a wrongful act of a public nature not affecting prejudicially the real and special interest or a specific legal right of the relator is true only so far as the issue of writs of mandamus and certiorari are concerned. In respect of Writ' of quo warranto there is no such restriction and a member of the public may challenge a public act of the State provided that he does not do so mala fide as an instrument of others. The leading case on the point is Rex v. Speyer and Rex v. Cassel (1916 K B (Vol. I) 595). It was alleged that the petitioner is a mere stooge in the hands of others but there is nothing on the record to substantiate this allegation. There is therefore no force in the first objection. Article 223 of the Constitution Act provides that until the first meeting of the National Assembly constituted in accordance with the provisions of the Constitution the body functioning as the Constituent Assembly of Pakistan immediately before the Constitution Day shall as from that day be the National Assembly of Pakistan. On the strength of this Article it is argued that a member of the Constituent Assembly even though illegally elected became a member of the National Assembly and the illegality of his election to the Constituent Assembly can no longer be questioned. Reference in this connection was made to a decision of the Supreme Court of India in case Raj Rajendra 1Llalojirao Shitole and another v. State of Modhya Bharat (AIR 1954 S C 259). This case has no relevancy as the point before the Supreme Court of India was whether legislation passed by a body which was improperly elected but specifically recognised as legislature was void or not. Their Lordships held that the Constitution makers having taken notice of factual existence of legislatures and having given them recognition under the Constitution and investing the bodies that were actually functioning as such whether regularly or irregularly with the authority to exercise the powers and perform the duties conferred by the provisions of the Constitution, any legislation passed by such a body could not be questioned. The point has been set at rest by the decision of our Supreme Court in case Zain Noorani v. Secretary of National Assembly (P L D 1957 S C (Pak.) 46). His Lordship Mr. Justice Shahabuddin observed as follows :- "One of the definitions of the word 'body' in the Oxford Dictionary is 'an artificial person created by legal authority for certain ends'. We have no doubt that the expression 'body' in the first paragraph of the Article 223 of our Constitution was used to indicate the artificial person 'the assembly' and not only its members. If the intention was that the Provisional National Assembly should consist of only those who were members of the Constituent' Assembly on the Constitution Day the paragraph in question would have said so specifically ; but in the nature of things that could never have been the intention." The argument advanced by the learned Attorney-General would suggest that if election petition in respect of any member of the Constituent Assembly had been filed and was pending, it would become infructuous after the promulgation of the Constitution as according to his reasoning illegality of the election would be cured by Article 223 of the Constitution Act. Such an absurdity cannot be contemplated. The whole object of Article 223 was to transform the body functioning as Constituent Assembly into a National Assembly by the Constitution. The Article was not concerned with the legal position of any individual member of the Constituent Assembly. He would become the member of the National Assembly provided he was a duly elected member of the Constituent Assembly. Article 223 of the Constitution is therefore no bar to this petition. Article 146 of the Constitution has no application as it relates to elections to National and Provincial Assemblies that were to be held after the enforcement of the Constitution. Even if it were applicable it will be read subject to they provisions of Article

170. Our Supreme Court has recently held that Article 146 has to be read subject to Article 160 of the Constitution. To me it seems that on the same analogy Article 146 is subject to the provisions of Article 170 of the Constitution. It was pointed out that section 9 of the Constituent Assembly Proceedings and Privileges Act, 1955 had practically the same effect as Article

146. This is not so. This section merely provides that if any doubt or dispute arises as to whether a person has or has not been validly elected the question shall be referred to the Speaker who shall appoint a Tribunal. This section does not say that the findings of the Tribunal cannot be called in question in any Court. Even if it were so this would not affect the powers conferred on the High Court by Article 170 of the Constitution. These powers admit of no exception and are in general terms. A somewhat similar question arose before the Supreme Court of India in case Raj Krushna Bose v. Binod Kanungo and others (A I R 1954 S C 202). Their Lordships observed: "It is sufficient to say that the powers conferred on us by Article 136 of the Constitution and on the High Courts under Article 226 cannot be taken away or whittled down by the legislature." The arguments on behalf of the respondent proceed on a misapprehension that two premedies one by quo warranto and the other by means of election petition cannot co-exist. I may at this stage quote a passage appearing at pages 171 and 172 of the book Extraordinary Legal Remedies by Ferris . While quo warranto and election contests have one purpose in common, to determine if there has been usurpation, it does not follow that the right of quo warranto is impaired by the enactment of contest statutes. The two remedies are distinct. Quo warranto may be invoked by the people in their sovereign capacity as an inherent right under the common law : an election contest may be maintained by a voter in his individual capacity under the statute. The one simply determines a matter of public interest, the other, the private rights of two persons to the same office. The statute merely shares the right with the elector. Absent statute to the contrary, the two remedies are cumula tive. But if an individual seeks to effect ouster for his own private ends, that is, to succeed the incumbent, he should, where provided by law, institute contest proceedings." On a careful consideration I have come to the conclusion that this writ petition is neither barred by Article 223 nor by Article 146 of the Constitution. Section 9 of the Constituent Assembly Proceedings and Privileges Act of 1955 also does not stand in the way of the petitioner. The objection that has been most vehemently urged on behalf of the respondent is that the petitioner could challenge the, legality of the election by means of election petition and having failed to do so it was not open to him to seek relief by means of quo. warranto. G: G's. Order XII of 1955 did not provide for any election petition. On the other hand it laid down that every decision of the Returning Officer taken by him in pursuance of the powers conferred upon him by the rules in the schedule to the Order shall be final and conclusive and shall not be questioned in any Court. Consequently election of the respondent as declared by the Returning Officer on 21st June 1955 was final in its nature. Subsequently however came the Constituent Assembly Proceedings and Privileges Act, 1955 enacted on 6th August 1955. Section 9 of the Act reads as under ; "Determination ~of question.-(1) If any doubt or dispute arises as to whether a person has or has not been validly elected or is qualified for or disqualified from sitting and voting in the Assembly the question shall be referred to the Speaker, who shall appoint a tribunal (hereinafter referred to as the "Tribunal") in accordance with subsection (2) of this section. (2) The Tribunal shall consist of a Chairman, who shall be or has been a judge of the Federal Court, and of two other persons who shall be or have been Judges of a High Court and shall be set up within six weeks of the filing of the application or petition raising the doubt or dispute. (3) The Tribunal shall have all such powers of a High Court as may be necessary to investigate the question including the power to enforce the attendance of witnesses and the production of documents and shall decide its own procedure. (4) The Tribunal shall report to the Speaker on the question submitted to it, and the Speaker shall make such consequential order as to him seems necessary to give effect to the report and any such order shall be final and shall not be questioned in any Court. (5) Nothing in this section shall require the Speaker to appoint a tribunal in relation to any doubt or dispute as to whether a person has or has not been validly elected to the Assembly unless the following conditions have been satisfied, that is to say- (a) The doubt or dispute is raised by a petition to the Speaker signed by the petitioner ; and (b) The petition is received by, the Speaker within a period of thirty days after the publication of the result of the election in the Official Gazette or within a period of thirty days after the date of commencement of the Act, whichever period is the longer ; and (c) Before or at the same time as the petition is received by the Speaker the petitioner has deposited in a Govern ment treasury the sum of rupees one thousand in cash or in Government promissory notes of equal value at the market rate of the day, as security for the costs of the investi gation: ' It will be seen that the section did not provide as to who can file ;the election petition and the time was up to 6th September 1955. The Speaker had no jurisdiction to extend the period for filing the petition. It is argued that under Section 9 the petitioner had an equally appropriate and effective alternative remedy which was not availed of, and in view of this the Court should decline to grant a writ of quo warranto. No doubt the High Court would not ordinarily interfere where any remedy which is equally convenient is open to the petitioner but the existence of another remedy is not in every case a bar to the E exercise of the powers of a High Court under Article 170 and the Court can and should interfere if the circumstances of the case justify such interference. I have carefully considered the arguments advanced and the case quoted on behalf of the parties and have come to the conclusion that there is no force in this objection. It is doubtful whether remedy by way of election petition was open to the petitioner. Section 9 itself does not lay down as to who can file a petition. But election petition is a civil proceeding and it is well settled that in case of wrongful act of a public nature no person can invoke the Court's aid unless the impugned act has prejudicially affected his special interest or his specific legal right. Only a voter or a candidate may question the legality of an election in an election petition. A third person who is neither a voter nor a candidate cannot be said to have been affected by the result of an election. As laid down in para. 444 volume 14 of Halsbury's Laws of England a petition must state the right of F the petitioner to question the election. The petitioner in this case was neither a voter nor a candidate. He was not particularly affected by the election of the respondent and to my mind could not file an election petition. It has already been observed earlier that this principle does not apply to a petition seeking grant of a writ in the nature of quo warranto Every citizen under a responsible Government has been held to be entitled to petition the Court if a public office is held by a person not legally entitled to it. This consideration is not available in connection with an election petition which is mainly to determine the respective rights of the petitioner and the elected candidate. In this view the very basis of the objection disappears. Even if it be held that the petitioner could have filed an election petition under section 9 of the Constituent Assembly Proceedings and Privileges Act, 1955 there are various impelling reasons which require that discretion in this case should be exercised in favour of the applicant. This case is distinguishable from those cases wherein the statute which creates a right also provides a remedy for infringement of the right so created Baluchistan was given a right of representation on the Constituent Assembly by G.-G.'s Order XII of 1956. This made the Returning Officer a final authority in so far as he acted in accordance with the rules in the schedule to the order. Obviously if any act of the Returning Officer was ultra vices a Civil Court could step in. A remedy by way of election petition was provided by another act which came into existence much later. Even the name of Act did not indicate that it had anything to do with the elections held under G.-G.'s Order XII of 1955. It is quite possible that the petitioner was not aware of this remedy. This remedy was not even open to the petitioner when he petitioned this Court. Limitation for filing the election petition had expired on 6th September 1955, and there was nothing to show that the petitioner was aware of this provision before 6th September 1955. The respondent as a member of the National Assembly occupies a very high office under the Constitution. It is a matter of grave public concern that the legality of such an appointment should not be under the cloud. Allegations which are uncontroverted not only show that there has been an irregularity but that no election worth the name had taken place in as much as the constituency contemplated by the G.-G.'s Order XII of 1955 never came into existence. Here I may quote what the West Pakistan Tribunal has to say in regard to a similar so-called election in connecton with the interim Provincial Legislature of the Province of West Pakistan. "It is not a case merely for the setting aside of an invalid or a defective election. There has been no election at all in this constituency as the one which is purported to have been held was from its very inception an utter nullity." Governor-General's Order XII of 1955 laid down that the representative of Baluchistan shall be elected by the members of Shahi Jirga and the non-official members of Quetta Municipality. Quetta Municipality had been super seded shortly before and had yet to be reconstituted. The very idea of holding an election from Baluchistan was impossible without first bringing Quetta Municipality into existence. Any election without bringing the elctoral college into existence can only be considered to be a faked and colourable election. I may here quote from Lord Hewart, C. J. in case Barnes Corporation In re. Hutter Exparte (1): "What then is the meaning of the election being colour able? I take it that when parties have the right to elect and proceed bona fide upon the ground of there being a case for an election, if never can be colourable (L R (K B) Vol. I (1933) pp, 679 & 680) thus stating in effect that, where a de facto election has been merely colourable a mandamus ought to be granted to hold an election in accordance with the law. ... It is said by counsel for the respondents that, even if that he so, the case is not one for a mandamus, but for an election petition, and he relies upon section 87 of the Act as supporting that view. It seems to me, however that no part of that section is applicable to this case. The question here is not whether certain persons were duly elected by a majority of lawful votes, but whether the whole scheme of the election was not contrary to the charter and to the statute." Applying the above criteria there was no election at all. The above observations were made in connection with a case where secret voting was resorted to in place of open voting which was provided by the relevant statute. Reliance was placed on behalf of the respondent on case Maherban Ahemd v. Commissioner Rawalpindi Division (P L D 1955 Lah. 263) This case laid down that where a right is created by a statute which also prescribes the manner in which the right may be enforced the party complaining of any infringement of such right can only seek such remedy as is provided by that statute. The position however is clarified if we look to a subsequent case decided by another Bench in case Ghulam Ahmad v. Punjab Province (P L D 1955 Lah. 635). It is pertinent to note that the Chief Justice of West Pakistan High Court was a member of both the Benches and both dealt with the elections held under Punjab Municipal Act III of 1911. Mr. Shabir Ahmad, J. who delivered the judgment in the latter case observed: "It was next contended by the learned Counsel for the res pondent that as the matter referred to an election as con templated by the Municipal Election Rules, 1952 (published in the Punjab Gazette dated the 28th of March 1952, as Notification No. 11010-B & C. 51/1551 dated the 3rd of March 1952), the election could not, because of rule 51 which says that no election shall be called in question except by an election petition presented in accordance with those rules be called in question in a civil Court. If the meeting at which some members of the Committee purported to elect respondent No. 4 as the President of the Committee were a valid meeting of the Committee, the argument that the election could be called in question only by an election petition would have been unassailable, but in the present case, as I have already indicated, the meeting at which respondent No. 4 was elected as the President of the Mandi Baha-ud-Din Municipal Committee was no meeting in the eye of law. In these circumstances the jurisdiction of the Civil Courts which are Courts of general jurisdiction cannot be taken away by rule 51 relied upon on behalf of the respondent." If both the decisions are read together it can only mean that where an election has taken place but irregularities have been committed in the course of that election remedy by way of election petition is the only remedy available but if there is no election at all in the eye of law then Election; Tribunal is not the only forum. In this case there was only a show of election because as said earlier the very electorate contemplated had not been brought into existence. There are various cases in which writ powers have been exercised because electoral rules which are the basis of election had not been prepared in accordance with law. I may refer to a Full Bench case of Nagpur High Court in case Kangula Baula Kotwal and another v. Chief Executive Officer, Janpad Sabha Durg and others (A I R 1955 Nag. 49). The recent decision by the Lahore Bench of the West Pakistan High,Court in regard to District Board elections in Asghar Ali v. Province of West Pakistan (P L D 1957 Lah. 309) also points in the same direction. There is yet another reason for interference in this writ petition. No body could file election petition unless he deposited Rs. 1,000 along with or prior to filing the election petition. This cannot be considered to be an equally convenient remedy vide Jimmatlal v. State of Madhya Pradesh (A I R 1954 S C 403 para. 9 at p. 406) and Anglo India Jute Mills Co. Ltd. v. S. K. Dutt an 1d another (A I R 1950 Cal. 450). It was next contended that the petitioner has been guilty of laches inasmuch as he petitioned as late as 20th June 1956. The petitioner has explained this delay. He became aware of the true position of the so-called election of Dr. Khan Sahib by publication of the report of the West Pakistan Election Tribunal on 18th May 1956. Before that according to his allegations he was not aware that Quetta Municipal Committee did not exist at all. There is nothing surprising in this ignorance of fact. Twenty two members had been 1 nominated to perform the functions of Quetta Municipal Committee and an ignorant person could take them to be the members of Quetta Municipal Committee though in law they were not. Allahabad High Court excused four years delay on the ground that real position was not known to the petitioner. Lala Rai Kishore and others v. District Board of Saharanpur and others (A I R 1954 All. 675). A delay of 2 years was not con sidered fatal by the King's Bench in case Rex v. Speyer (1916 K B Vol. I p. 595). The learned Counsel for the petitioner relied on case British Union and National Insurance Co. Ltd. v. Rawson (L T R Vol. 115 p. 332). In this a delay of 2J months was considered fatal. But this was not a case of quo warranto but of certiorari. Same con siderations do not govern both the kinds of writs. In the words of Chagla, C. J. Bombay "It is a duty of the Court as soon as its attention is drawn to the fact that a person who is not qualified is holding a public office to declare that he is not entitled to that office and to prevent him from acting as such. Two minor points remain to be considered. One is that the result of the election has not been affected by the illegality in election. The line of argument is that Dr. Khan Sahib polled 68 votes out of 90 and 22 did not turn up at all as they boycotted the election. The non-official members of Quetta Municipal Committee would have numbered 28 and if all were inclined to vote against Dr. Khan Sahib the total that could be polled by the opponent would come to 44 out of

90. It is however overlooked that election is not a mere question of calculation. It is the composition of the electorate which determines the respective strength of candidates. At least 20 of the votes were not entitled to vote and it may be that these 20 were included in the 68 votes cast for Dr. Khan Sahib. Moreover there is no question of the election being affected by irregularity alone. It is a case of no election at all. But it is urged that Quetta Municipal Committee could not be reconstituted by 16th June which was the date of nomination and consequently the condition that the members of the Quetta Municipal Committee would be component part of the electoral college would stand waived. Reliance was placed at page 248 of Craies on Statute Law fifth Edition. There is nothing on the record to show that Quetta Municipal Committee could not be reconstituted within 18 days. This was possible if electoral roll was ready. Even if the reconstitution of Quetta Municipal Committee was not possible the election from this consti tuency could be deferred as was done in the case of representatives from Baluchistan States Union, Bahawalpur, Khairpur and Frontier States and the Tribal Areas. The passage in Craies does not apply to the facts of this case. It runs thus: "Under certain circumstances compliance with the pro visions of statutes which prescribe how something is to be done will be excised. Thus, in accordance with the maxim of law, lei non cogit ad impossibilia, if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God or the King's enemies, these circumstances will be taken as a valid excuse." There is no question of any situation created by act of God or the King's enemies. It was default of the authorities who were charged with the duty of arranging the election. The situation could be met either by arranging the election within two weeks or by extending the date of nomination. The position is put at rest by the observation of the same author, at page 250: "But the conditions in an enabling Act which have been prescribed for the purpose of protecting or benefitting the public cannot be dispensed with." Members of Shahi Jirga represent a class and not the people in general. It were the non-official members of Quetta Municipality who were to represent that element. Election by members of Shahi Jirga alone was contrary to the public purpose behind the requirement. It has been well observed by Maxwell on Interpretation of Statutes that where the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention. Where powers, rights or immunities are granted with a 1 direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred. Lastly it was contended that interference by this Court Would amount to reach pf the privilege of the National Assembly. Attention was invited to page 64 of May's Parlia mentary Practice where it says that "another important power peculiar to the Commons is that of determining all matters touching the election of their own members." The N use of the word peculiar' nullifies the effect of the contention of the learned counsel for the respondent. Such a privilege is not yet enjoyed by the National Assembly. The result is that the petition succeeds and the petitioner is entitled to the writ prayed for. Parties are to bear their own costs. A. H. Petition allowed.