P L D 1971 Lahore 912 (PLP)

(2) If a member is absent from the Assembly without leave of the Speaker for fifteen consecutive sitting days, his seat shall become vacant. (3) If a member fails to take and subscribe an oath in accordance with Article 12 within a period of seven days from the date of the first meeting of the assembly after his election, his seat shall become vacant: Provided that the Speaker or, if the Speaker has not been elected, the Commissioner, may, before the expiration of the said period, for good cause shown, extend the period. (4) A person elected to be a member who wishes to relinquish his seat before the first meeting of the Assembly may resign his seat by notice in writing under his hand addressed to the Commissioner." In Article 9 of the L. F. O., it is written that, "if any question arises whether a member has, after his election, become subject to any disqualification, the Commissioner shall place the question before the Election Commission and, if the opinion of the Commission be that the member has become so subject his seat shall become vacant." Article 10 (2) of the L. F. O. lays down:‑ "Nothing in clause (1) shall prevent a person from being at the same time a candidate for election from two or more constituencies, but if a person has been elected as a member for two or more constituencies and does not, within fifteen days of the notification of his election by the constituency by which he has been elected last, make a declaration in writing under his hand addressed to the Commissioner specifying the consti tuency which he wishes to represent, all his seats shall become vacant, but so long as he is a member for two or more constituencies he shall not sit or vote in an Assembly." Coupled with this is Article 6 (3) of L. F. O. which states that:‑ As soon as practicable after the general election of members of the National Assembly, the members from a province for the seats reserved for women in that assembly shall be elected by persons elected to the general seats from that Province in accordance with law. This may be read with section 49 (2) of the Ordinance which states that:‑ "The members for seats reserved for women in an Assembly shall be elected. subject to the provisions of clauses (3) and (4) of Article 6 of the Legal Framework Order, 1970, by persons elected to the General seats in that Assembly so that there is one member for each of the constituencies for seats reserved for women in that Assembly." In Article 19 of the, L. F. O., it is written that:‑ "The speaker, the Deputy Speaker and the other members shall be entitled to such allowances and privileges as the President may, by order, prescribe." If all these and other allied provisions are kept in view the following corollaries follow‑ (i) that a seat in an assembly is a public office which is a creation of the Statute; (ii) it is to be filled up by the electors of the Constituency concerned; (iii) who are to elect a duly qualified person to be a member for that Constituency (See section 12 of the Ordinance); (iv) the procedure is that after the election, the Returning Officer is to, "declare by public notice the contesting candidate, who has or is deemed to have received highest number of votes to be elected"; (v) thereafter, the Election Commission shall publish in the official Gazette the name of the returned candidate; (vi) a contesting candidate who wants to challenge the said election can file an election petition under section 50 of the Ordinance within forty‑five days of the aforesaid publication in the official Gazette (see rule 31 of the National and Pro vincial Assemblies (Elections) Rules, 1970; (vii) the provisions regarding vacations of seats by registra tion or otherwise reproduced above show that so long as the contingencies mentioned in that respect do not take place, the returned candidate occupies his seat and it is onl9 in the eventualities relevant in that behalf, that his seat becomes or falls vacant. This can happen even prior to the taking of oath. In the provisions hereinbefore mentioned such a seat has all along been referred to as his seat; and (viii) that a returned candidate by virtue of his this status or office is to perform a public function of electing women candidates.

8. All these aspects lead us to hold that a returned candidate does occupy the seat from which he has returned and after the election the said seat is no longer vacant, but gets filled up and it can become vacant only in accordance with law herein before referred to. The returned candidate by virtue of his such c occupation of the seat, is to perform a public function to vote for an election of women members. He can, therefore, very safely be called to hold or purport to hold a public office of this peculiar nature. In Article 14 of the L. F. O. it is written as follows:‑ "

14. Summoning of National Assembly etc.‑(1) After the close of the general election of members of the National Assembly, the President shall, for the purpose of framing a Constitution for Pakistan, summon the National Assembly to meet on such day and at such time and place as he may think fit; and the National Assembly so summoned shall stand consti tuted on the day of its first meeting: Provided that nothing in this clause shall be construed as preventing the President from summoning the National Assem bly on the ground that all the seats of the members have not been filled. (2) After meeting as convened under clause (1) the National Assembly shall meet at such times and places as the Speaker may decide. (3) The National Assembly shall, subject to reasonable adjournments, meet from day to day to transact its business." It appears to us that the "constitution of the National Assembly" or "the date of the constitution of the National Assembly", are concepts quite separate from the point as to whether a t returned candidate can be said to hold a public office for the purposes of performing the limited functions relevant to that status. A returned candidate as the definition in section 2 (xx) of the ordinance shows is a candidate who has been declared elected as a member. So long as that declaration stands, he occupies the relevant seat and can perform such functions which the law may allow him to perform in that limited capacity. If this interpretation is accepted, then a High Court will be well within its competence to scrutinize the credentials of such a person and if a proper case is made out may stop him from becoming a full‑fledged member and from taking an oath and in this way may stop the happening of an illegality. On the contrary the interpretation put by the learned counsel for the contesting respon dent will lead to prolong and perpetuate the illegality which, in our opinion, should not be encouraged. The position is analogous to an appointment order which appoints a person to an office from the date of its issue though it allows some joining time to the appointee. If the seat was not occupied why the Legislature, in various places, called it as "his seat" or use the phrase as resignation from his seat or his seat becoming or falling vacant etc. All this shows that a returned candidate is a holder and occupier of the relevant seat, and that a declaration that he is a returned candidate, is a step sufficient to enable him to embark upon and use the said office by taking an oath or act otherwise wherever so permitted. Again there is a difference between holding and occupying an office on the one hand and entering upon the duties of that office on the other hand. Lastly, the phrase, "purporting to hold", as used in Article 98(2)(b)(ii) can; in our opinion, be aptly used and invoked in situations of the present type; because if that were not so, then the High Court will never be able to scrutinize the credentials of usurpers of offices because they will always come up with the pleas that they do not strictly hold the office. In any case the objection raised is no bar on the part of this Court to examine the validity of issuing an injunction to restrain the respondent from embarking upon the "claimed office". In support of the view which we have taken regarding the concept of holding or purporting to hold office as used in Article 98 of the Constitution we may refer by way of analogy to a passage occurring in the judgment of Das, J In re: Banwarilal Roy and others (48 C W N 766) where the question was as to whether one Mr. Nomani, who after the super-session of Howrah Municipality had been authorised to exercise and perform all the powers and duties which by or under any law for the time being in force be exercised and performed by or on behalf of the Chairman and the Commissioners of the Howrah Municipality during the period of super-session. The objection was that since‑--(till the debate of the question)‑he had not been appointed as the Chairman or a Commissioner of the Howrah Municipality he did not claim to hold any office and the position which he held was not an "office". The argument was repelled in the following words in para. 49 of the judgment at page 805 which reads as follows:‑ "

49. The learned Advocate‑General frankly stated that he could not say that the office of Chairman or that of a Commis sioner is not an `office' in respect of which proceeding by information in the nature of quo warranto might lie. His argument was that here there had been no usurpation of any `office' for Nomani had not been appointed as the Chairman or a Commissioner of the Howrah Municipality and he did not claim to hold any such office. The position he held was not an `office'. This argument to my mind takes a very narrow view of the term `usurpation.' The order of appointment under clause (7) of rule 51‑F can only be made consequent on the order of super session under clause (6) of that rule. There can be no order under clause (7) before an order under clause (6) is made. In this case the two orders were made together. They were made by the same notification. There was one common recital at the top. The duration of Nomani's appointment is co4extensive with the duration of the super session. The duties of Nomani are to exercise and perform all the powers and duties which may, by or under any law for the time being in force, be exercised and performed by or on behalf of the Chairman and the Commissioners of the Howrah Municipality. In the facts and circumstances of this case I cannot see how it can be said that there has been no usurpation of the office of the Chairman and those of the Commissioners. In my judgment the circumstances that Nomani has not been given or has not assumed the name of the office makes no difference in substance at all. The usurpation, so far as the Chairman and the Commissioners are concerned, has been as effective and as complete as it would have been if Nomani had assumed the name. After all, what is in a name? If the function is usurped, the office is usurped. There is also authority that even if a wrongful claim is made to an office which does not exist or if a new office is set up, an information in the nature of a quo warranto may lie. See the cases of R. v. Geo Price Lloyd (1860) 2 L T N S 232 Lloyd v. The Queen (1862)2 B., & S 656 and R. v. Boyles (1795) 2 Str.

836. Therefore, the position that has been conferred on Nomani and which he has assumed, apart from the office of Chairman or Commissioner, may by itself be regarded an office which he has arrogated to himself." In the above case it was held that the position which had been conferred on Nomani and which he had assumed apart from the office of the Chairman or Commissioner may by itself be regarded as an office which he had arrogated to himself. Applying the same principles to the facts and circumstances of the present case, the status of a returned candidate can be held to be an office of its own pecularities examinable in an appropriate writ petition by the High Court.

9. This brings us to the next contention of Mr. Batalvi. The relevant law which is being invoked by the learned counsel for the petitioner is contained in Article 9(2)(h) of the L. F. O. which reads as follows: ‑ "9(2) A person shall be disqualified from being elected as, and from being, a member if‑- (h) he, whether by himself or by any person or body of person in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co‑operative society any Government, for the supply of goods to, or for the execution of any contract or the perform ance of any services undertaken by, Government: Provided that.

The analogous law was contained in Pakistan in section 116 of the Representation of the People Act XXXI of 1957. In India the corresponding law was contained in section 7(d) of the Representation of the People Act XLIII of 1951, which presented some practical difficulties and was later on amended from time to time. See "Objects and Reasons" at page 1028 of the A. I. R. Manual of the Un-repealed Central Acts (Civil and Criminal) (2nd Edition), Volume

13. In England, the correspond ing provision is the House of Commons Disqualification Act, 1872 as subsequently amended from time to time. With reference to, all this material, it was suggested to us by the various learned counsel appearing in this case that the words "any contract" as underlined above were mistakenly used twice and that probably the real intention was to use the words "any works" as was the case in the analogous law hereinbefore referred to. We need not enter into the controversy in the face of the order which we are going to pass in this case, At this juncture, we may here refer to two further provisions of the L F. O. which are relevant from our point of view. The first is sub‑Article (4) of Article 9, which has already been reproduced earlier. The other provision is Article 27 which reads as follows‑-‑ "

27. Interpretation and amendment of Order etc.‑(1) Any question or doubt as to the interpretation of any provision of this Order shall be resolved by a decision of the President, and such decision shall be final and not liable to be questioned in any Court. (2) The President and not the National Assembly shall have the power to make any amendment in this Order."

10. On factual plane, it is argued by the learned counsel for the petitioner that the contesting respondent is a Managing Director and partner of a registered firm known as "Messrs Malik Karam Bakhsh & Company". This firm allegedly holds a licence and leases the particulars of which are as follows :‑ S. No. Number Nature Particulars (a) P L 53/218 Lease It is 30 years lease over an area of 789.25 acres in Tehsil Khushab, District Sargodha with effect from 26‑3‑1951 up to 25‑3‑1981. It was superseded by Lease No. 53/386 mentioned at item No. (ii) here. (b) 53/386 Lease It superseded earlier lease No. 53/218. It is with regard to an area of 1421.35 acres which includes the previous area. It is for 13 years and 8 months from 26‑7‑67 to 25‑3‑1981. (c) 53/387 Lease It is a lease for 1345.62 acres in Tehsil Khushab, Dis trict Sargodha for 30 years with effect from 1‑2‑1961 up to 31‑1‑1991. (d) 53/382 License It is a prospecting license actually granted on 18‑1‑61 for one year and was renewed up to 17‑1‑1968 and its further renewal is under consideration though the firm is holding over this licence. It is with regard to an area Of 516.75 acres in Tehsil Khushab, District Sargodha. These leases/licenses have been granted to the firm afore said, under the Regulation of Mines and Oilfields and Mineral Development (Federal Control) Act XXIV of 1948. The standard form of Prospecting License is contained in Part I of the II Schedule, whereas the Standard Form of Mining Lease is in Part II of the Second Schedule, as annexed to Pakistan Mining Concession Rules, 1960 published in the Gazette of Pakistan (Extraordinary), dated 27‑7‑1960 at pages 1125 and 1141 respec tively. There pro formas are to be read alongwith the aforesaid rules which were referred to us at length but we have no intention to go into all these details because of the view which we are going to take in this case, and it will be sufficient to state that the question which arises for consideration is as to whether the contracts contemplated in Article 9(2) (h) of the L. F. O., also embrace the licenses or leases granted under the Pakistan Mining Concession Rules, 1960, which according to the learned counsel for the petitioner are in the form of statutory contracts. This is a question "as to the interpretation of a provision of this t Order, and the point is, can this Court interpret the same, examine its scope and point out its extent and limitations while exercising jurisdiction in a petition for a writ of quo warranto under Article 98(2)(b)(ii) of the Late Constitution of 1962. Mr. Batalvi argued that if any petition depended upon the interpretation of any of the provisions of the L. F. O., then since that was no more a function of this Court, that was a new fetter on the jurisdiction of the High Court in that respect, and though a petition for quo warranto may otherwise be competent but if it involved the interpretation of a provision of the L. F. O., then that was not maintainable. This point by itself involves the interpretation of Article 27 which is as much a part of the L. F. O., as any other Article contained therein, and it was suggested that even this Article could not be interpreted by this Court. As against this, learned counsel for the petitioner argued that the scope of Article 27 is limited in its nature and submitted that the bar of interpretation is not absolute. He referred to the provisions of the National and Provincial Assemblies (Elections) Ordinance, 1970 and stated that under that provision of law, the Returning Officer was given a power to accept or reject a no mination paper. Against rejection of a nomination paper, there was provided an appeal, but in cases where it was accepted, the law had allowed the same to be challenged in an election petition before the Election Tribunal against whose decision an appeal was provided to the High Court. He argued that if the bar was so sweeping then how would the functionaries under the Ordinance function in a matter of present kind and on all such occasions the dispute will have to be resolved by the President which according to him could not be the intention of the law‑giver. Sheikh Aftab Hussain learned Standing Counsel for the Central Government, Mr. M. B. Zaman, learned Advocate‑General of the Province and Mr. Inayat Ali Shah a representative of the Election Commission whom we heard in this respect, stated that this Court could not interpret any provision of the L. F. O., though they argued that so far as the working of the functionaries under the Ordinance was concerned, since that was promulgated by the same law‑giver; who had made the L. F. O., it should be considered that in that respect the President had delegated his functions to those functionaries. They further suggested that there was a difference between interpretation of the provisions of the L. F. O., on the one hand, and the application of those provisions to the established facts and circumstances (where no question of interpretation was involved) on the other hand. They argued that the former func tion could not be performed by this Court though the latter could be. In the instant case, however, they suggested that both these jobs and functions were involved. The arguments on both sides are very attractive but we do not want to enter into the same or give our own findings or views on them and reserve them for some other occasion in a more appropriate case, because we think that the present writ petition can be disposed of on the grounds given in the following paragraphs of this judgment.

11. Jurisdiction under Article 98 of the Constitution is always discretionary and in appropriate cases, a High Court may refuse to exercise it. It is a common ground between the parties l herein that to challenge election of the contesting respondent, an election petition has already been filed by his rival candidate,) namely, Malik Muhammad Anwar Khan Tiwana, and the same points which are raised here occur in the said election petition. We notice that the aforesaid rival candidate has instituted an independent writ petition being W. P. No. 1642/70. The present petition is a verbatim copy of the said writ petition and in these circumstances the possibility of a collusion between the petitioner and the rival relator of the respondent cannot be ruled out. It is well‑established that a High Court may refuse to exercise its discretion in appropriate cases. The relevant law is summed up in para. 281 at pages 148‑150 of the aforesaid Volume 11 of the Halsbury's Laws of England and reads as follows:‑ "

281. Discretion of the Court.‑An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The Court would inquire into the conduct and motives of the applicant, and the Court might in its discretion decline to grant a quo warranto informa tion where it would be vexatious to do so, or where an informa tion would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective. It is conceived that the Court will follow similar principles in determining whether to grant an injunction in lieu. When, therefore, the title to a corporate office was in question, the Court, in accordance with these principles, would not grant leave to a relator to file a quo warranto information as a matter of course simply because a reasonable doubt as to the legal validity of the title was shown, but the Court would take into consideration the consequences which would be likely to follow should the information be granted, and also all the circumstances of the application. Thus, the Court would refuse to disturb the peace and quiet of a corporation by granting leave to file an information where to do so would be merely vexatious, as where there had been an irregularity in the election to the office which was without any material result, or which could not be shown to have been productive of harm. Again, where the circumstances of the application was such as to throw suspicion upon the motives of the relator, the Court would not grant an information the consequences of which might be to dissolve the corporation; similarly where there was ground for supposing that the relator was not the real prosecutor but was the instrument of other persons who were incompetent as relators, or that he was applying in collusion with strangers. An information would not be refuse, however, merely because its effect would be to dissolve the corporation, or merely because a person, not a member of the corporation, had been furnishing the means of carrying on proceedings or merely because the application was a friendly proceeding."

12. The present case falls well‑within the scope of this rule and is liable to be dismissed on that count as well as on the ground that since an election petition has already been filed and the matter is sub judice in that form, it is not just and fair to exercise our discretion so as to fetter the proceedings already competently instituted on the subject, specially, when the matter involves recording of evidence and determining intricate questions of fact and taw, a job which can more appropriately be performed before the Election Tribunal than in this Court.

13. The upshot of the above discussion is that the writ petition is dismissed. We will, however, leave the parties to bear their own costs,

14. Coming to this writ petition, it can be disposed of with a short observation that since the petitioner has, after filing it, instituted an election petition, under section 50 of the National and Provincial Assemblies (Elections) Ordinance, 1970, wherein inter alia, the point which is being urged here, has also been taken since the matter involves intricate questions of fact and law, which will require taking of evidence‑(a function which should more appropriately be performed by the original form than this Court) and also because from the judgment and order of the Election Tribunal an appeal under section 64 of the Ordinance is to ultimately come to this Court, therefore, we are not inclined to circumvent all that procedure‑(which provides an adequate remedy to the petitioner)‑so as to decide this matter here. It is a fit case where we would not like to exercise our discretion in favour of the petitioner. The writ petition is dismissed with no order as to costs. Petition dismissed.