P L D 1965 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑These three matters have been referred to a larger Bench to consider whether the provisions of Article 171 of the Constitution and section 58 of the; Electoral College Act (IV of 1964) exclude the jurisdiction of this Court under Article 98 of the Constitution to entertain disputes arising in connection with an election held under the Constitution.

2. The dispute in Writ Petition No. 1606 of 1964, relates to acceptance of the nomination paper of Sarfraz Khan Malik (respondent No. 2), although he stood disqualified under section 53 (i) (j) of the Electoral College Act. In Writ Petition No. 1744 of 1964, the nomination paper of Noor Muhammad (petitioner) had been rejected on the ground that the signatures of the seconder on his nomination paper were not genuine. In Writ Petition No. 1861 of 1964, eight ballot papers cast in favour of Mian Qamar‑ud‑Din (petitioner) had been rejected by the Presiding Officer resulting in the success of his rival candidate, Sheikh Chiragh Din, respondent.

3. On behalf of the petitioner it was urged that the disputes arising in the matter were not amenable to the jurisdiction of the Tribunals established under the Electoral College Act, and that in any case, the remedy available in that forum was not adequate to oust the jurisdiction of the High Court under Article 98 of the Constitution. On the contrary, the respondents maintained that Article 171 of the Constitution and section 58 of the Electoral College Act, 1964, provide a complete bar to the jurisdiction of the Courts, including High Courts, to entertain any dispute arising in connection with an election held under the Constitution and that their determination was confined to the form and manner provided therein. The question has often been debated in one form or another in the superior Courts of this country as well as Courts of foreign jurisdiction leading to certain statements of law on the point; but on this occasion the provisions made for determination of disputes arising in connection with an election under the Electoral College Act, and the terms in which Article 171 of the Constitution is couched has added to its complexity.

4. Article 171 of the Constitution reads as follows:‑ "171 (1) Subject to clause (2) of this Article, provision may be made by law. (a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution td be finally determined by the Commissioner or an Election Commission; and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law. (2) When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever, (3) The validity of anything done by the Commissioner under Articles 160, 161 and 162 shall not be called in question in any manner before or by any Court or authority whatsoever." The term `finally' used in clause (a) of sub‑clause (i) constitutes, in unmistakable terms, a bar to the jurisdiction of Courts to entertain disputes specified therein. So does clause (b), but the matter has not been left in that domain. The bar is repeated in two different manners. Firstly, "no dispute shall be decided otherwise than under such law" and, secondly, "the validity of an election shall not be called in question except in accordance with such law". "Such", of course, refers to provisions to be made by "law" for determination of disputes by the Commissioner or Election Commis sion under clause (a) and a Tribunal under clause (b). The Electoral College Act is the law made in pursuance to Article 171 of the Constitution. The provisions relating to election disputes are dealt with in Chapter VIII, which contains only three sections Section 58(1) provides that no election shall be called in question except by an election petition under subsection (2). The succeeding subsection confers on any candidate the right to make an election petition challenging the election at which he was candidate. In the third subsection provision is made that an election petition in respect of an election from an electoral unit shall be presented, in such manner as may be prescribed, to the Election Tribunal appointed under section

59. The manner for presenting a petition and the reliefs which may be obtained are provided in rule 35 of the Electoral College Rules, 1964. Section authorises the Commissioner to appoint an officer for such art as may be specified in the Notification and provides that in can of succession of one person as a Tribunal by another person there will be no necessity of de novo trial, of the petition. The concluding section 60, after providing for the issuance of notice to a contesting candidate at the election to which the petition relates, lays down as follows: "Subject to any rules made in this behalf, the Tribunal shall after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit," The relevant rule is

36. It provides that after giving at least a week's notice to the respondents and holding a summary inquiry the Tribunal shall record its findings provided that an election petition may be withdrawn, etc.

5. It is to be noticed that the grounds on which the reliefs, namely, that the election of the returned candidate is void, that the petitioner or any other person has been duly elected or that the election as a whole is void (rule 35), are neither provided for in Chapter VIII of the Act nor in the Rules. Corrupt practices, bribery, personation and undue influence are contained in sections 61 to 65, in Chapter IX under the heading "Offences, penalty and procedure". The remaining provisions in the Chapter deal with prohibition of canvassing near Polling Stations (section 66), define disorderly conduct near Polling Stations (section 67), tampering with papers (section 68), interference with accuracy of voting (section 69) and penalties to be inflicted on the returning officers, registration officers and presiding officers for failure to maintain secrecy, acting for or against candidates and breach of official duty in connection with an election (sections 70 to 73). With certain exceptions the last‑named section provides a penalty up to two years' imprisonment and a fine of Rs. 1,000.00, if a person in the Service of Pakistan gives any assistance to further or hinder the election of a candidate. The next two sections have been deleted by Ordinance VIII of 1964, and the remaining sections in the Chapter confer certain powers of arrest etc. on police officers, declare certain offences cognizable and prescribe limitation for prosecution for corrupt practice or illegal practice. The scope of Chapter IX is, thus, confined to `offences', `penalty' and `procedure' and on its face does not purport to lay down grounds on which an election petition may proceed. From this omission, we are required to infer that the disputes raised in the present writ petitions were not triable by an Election Tribunal and therefore, this Court had the jurisdiction to entertain them under Article 98 of the Constitution.

6. Reliance was placed in support of this plea on numerous authorities, all of which need not be referred to and only the rules enunciated in them may be set down. For example, (1) where the right is created by a statute and the statute provides the remedy for its breach and sets up a complete machinery for its administration certiorari will ordinarily be refused, and (2) certiorari will issue‑ (i) if there is a manifest defect of jurisdiction in the Tribunal; (ii) if there is a manifest fraud in the party procuring the order complained of; (iii) or the authority making the order has acted mala fide Imtiaz Ahmad v. Ghulam Ali P L D 1963 S C 382; and (iv) if there is an error on the face of the record. The use of the word `ordinarily' in the general enunciation and the exceptions (i), (ii), (iii) and (iv), no doubt, considerably widen the jurisdiction of superior Courts to issue appropriate writs in matters enumerated above. But there is another enunciation by Willes, J. frequency invoked in this field for the opposite view in Wolver‑hampton New Water Works Co. v. Hawkesford ((1889) 6 C B (N S) 336). In discussing the establishment of liabilities founded on statute, the learned Judge observed as follows:‑ "There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is armed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of the case is, where the statute gives the right to sue merely, but provides no particular form or remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by the statute, which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." In. Novile v. Lond Express News Paper Ltd. (1919 A C 368), the above enunciation was approved by the House of Lords and it was re‑affirmed by the Privy Council m Attorney‑General v. Garden Grant & Co. (1935 A C 532). This, however, is not the last word on the subject. On the basis of these pronouncements of high authority, it was urged that the jurisdiction of superior Courts to issue prerogative writs was completely ousted. An exception has been made that until remedy provided for in the statute for establishment ‑of a right founded on it is made available a plaintiff would have a right of recourse to Civil Courts with corresponding rights of appeal. The bar, thus, is not absolute, and even in cases where the machinery for enforcement of such rights is provided, but it refuses or neglects to exercise jurisdiction, or acts in excess of its jurisdiction, an aggrieved person will have the right of recourse to Civil Courts.

7. In order to press this exception into service the learned counsel for the petitioner maintained that the Tribunals set up under the Electoral College Act were not possessed of this jurisdiction to entertain the disputes arising in these matters and, therefore, the bar contained to Article 171 of the Constitution did not become operative. That would be so but, for another exception applicable to election disputes, which must be reckoned with in this behalf. Broadly speaking, such disputes fall in two categories. Those which arise before the Poll and those which occur in the counting of ballot papers and up to the declaration of the result. Illegal and corrupt practices, bribery, personation undue influence, disorderly conduct near polling station: tampering with papers and interference with the secrecy of voting etc., will fall in the latter category while preparation of electoral rolls and acceptance or rejection of nomination papers, etc., will fall in the former category. The disputes from the stage of the poll onwards ordinarily include the consideration whether the act or omission complained of has materially affected the result of the election, and, therefore, should be agitated in an election petition if a Tribunal has been set up for that purpose. Different considerations, however, arise in case of disputes which arise before the poll is taken. For example, if a nomination paper is erroneously rejected and the poll has yet to take place, then a post election remedy is inadequate to afford the relief which the petitioner seeks that the election be stayed until it can be held with himself as a candidate and it is no consolation to tell him that he can stand for some other election. It is no remedy to tell him that he must let the election on and then have it set aside by petition and have a fresh election ordered. The fresh election may be under altogether different conditions and may bring forward an array of fresh candidates. The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected nomination is restored." (Wallace, J., in Sarvothama Rao v. The Chairman, Municipal Council, Saidapet (I L R 47 Mad. 585). But in a subsequent case the learned Judge, who had expressed this categorical view, made a significant departure from it and observed as follows:‑ "The petitioner is not without his remedy. His remedy lies in an election petition which we understand he has already put in. It is argued for him that that remedy which merely allows him to have set aside an election once held is not as efficacious as the one which would enable him to stop the election altogether; and certain observations at p. 600 of Sarvothama Rao v. Chairman, Municipal Council, Saidapet, are quoted. In the first place, we do not see how the mere fact that the petitioner cannot get the election stopped and has his remedy only after it is over by an election petition, will in itself confer on him any right to obtain a writ. In the second place, these observations were directed to the consideration of the propriety of an injunction in a civil suit, a matter with which we are not here concerned. And finally it may be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safeguarded was not so common. It is clear that there is another side of the question to be considered, namely, the inconvenience to the public administration of having elections and the business of Local Boards held up while individuals prosecute their individual grievance. We understand the election for the elective seats in this Union has been held up since 31st May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere nominated fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal grievance is satisfied. Desi Chettiar v. Chinriasami Chettiar I L R (15) 1928 Mad. 1271." Thus, there are two sides of the picture. The overriding consideration appears to be that the law of elections does not contemplate two attacks on matters connected with elections, one while the elections are being held and the other after they have been completed for having regard to the important functions which the elected bodies and Legislatures perform in the administration of a democratic country, it is of utmost necessity that the elections are concluded as speedily as possible and all disputes which arises at intermediary stages are allowed to stand over until the election has been completed. In case of completed elections there is also a rule that "ordinarily Courts in exercise of writ jurisdiction decline to interfere in cases of election, because it is desirable that decision on a matter of disputed election should as soon as possible become final and conclusive so that the constitution of the Council or Legislature may be distinctly and speedily known." Imtiaz Ahmad v. Ghulam Ali (P L D 1963 S C 382). The rule, of course, is subject to certain 'exceptions which are set out in paragraph 6 of this order.

8. Another approach to this subject is that the disputes arising in connection with an election lie in the domain of the Legislature and if by a law it delegates its functions to another forum then that forum alone has the jurisdiction to decide them, and the jurisdiction of Civil Courts, including the jurisdiction of superior Courts to issue prerogative writs is excluded. The statement will be found in many legal pronouncements, but we find it difficult to concur with the view that rights founded on statute can be rendered nugatory by omission on the part of Executive Authorities to set up Tribunals for their enforcement. Civil rights; common‑law rights or rights founded on statute may differ in their origin and to establish them different forms may be provided; but it is a negation of a right to say that it will adorn the statute book until by the will of a functionary of the State a forum is provided for its establishment. If that were so, in given cases such a forum may not be provided for at all. We are, therefore, inclined to agree with the opposite view that in such a case a person has a right to find recourse to a civil Court or to invoke the writ jurisdiction of the superior Courts where it so exists.

9. The bar to the jurisdiction of Civil Courts contained in Article 171 of the Constitution may now be examined more particularly. The terms in which the Article is couched make abundantly clear the anxiety that election disputes falling in clause (a) must be finally decided by the Commissioner or the Election Commission and disputes falling in clause (b) by a Tribunal. Two further considerations, however, arise. One that the determinations of the Tribunal are not excluded from the jurisdiction of the High Court under Article. 98 of the Constitution. And two that the exclusion of the jurisdiction of civil Courts is not absolute but conditional. To illustrate, the Constitution has in Article 158 conferred on persons entered on the electoral roll the right to be elected to the Electoral College. To establish that right the aggrieved person should, no doubt; find recourse to the authorities mentioned in Article 171 of the Constitution, but what if the authority is not appointed or if appointed refuses or neglects to exercise the jurisdiction conferred on it or acts in excess of its jurisdiction.

10. In the first class of cases, if the establishment of the right is made dependent on the existence of the Authority named in Article 171, it will amount to destroying that right and that such an interpretation should be avoided we are in no doubt. A contrary view, which may be adopted in complete fairness to the provisions of Article 171, is that the exclusion of the jurisdiction of Courts is subject to the fulfilment of the conditions laid down in the Article, namely, appointment of a Commissioner, an Election Commission and a Tribunal with ample jurisdiction to decide all kinds of disputes which may arise in connection with an election held under the Constitution. In other words, the electoral rights conferred by the Constitution partake of the same nature as: civil rights and common‑law rights and their establishment in all circumstances is not dependent on the functioning of the authorities named in the Article. A fortiori cases in which the Authority declines or neglects to perform its functions properly a petition under Article 98 will lie to the High Court for determining the legality of the act done or proceeding taken and issuing directions to the Authority to do that which, the law requires it to do or to refrain from doing that which it is not permitted by law to do. It may be added that such excuse of jurisdiction in the High Court will not conflict with the provisions of Article 171 that election disputes 'll be determined finally by the authorities named in it.

11. In some decided cases emphasis has been laid on the term "election" so that if a dispute falls outside its purview, then the bar that the validity of an election shall not be called in question except by an election petition presented 'to such authority and in such manner as may be provided by Act of Parliament (Article 146 of the 1956‑Constitution) would not be applicable to it. It is now well‑settled that the term "election" used in the context embraces the entire process of election and not only the taking of poll and subsequent declaration of the result. We, however, allow ourselves the liberty to add that the mere important consideration in this behalf is whether an election should be allowed to be retarded by entertaining a dispute which arises at an initial or intermediary stage or that it should be held over until the election is completed.

12. To sum up, the conclusions which we have reached are as follows: (i) A right founded on statute can be established in Courts if the. Special Tribunal or authority named in the statute for establishment of their rights does not exist; (ii) if such a Tribunal or authority neglects to exercise its functions or acts improperly in the exercise of its functions at High Court can grant relief under clauses (a) and (b) oft Article 98(2) of the Constitution; and (iii) in the matter of elections to Legislatures and 0the electoral bodies an exception is made in that no dispute arising in the course of an election will be entertained until the election is completed.

13. The contention that the Tribunals established under the Electoral College Act are not invested with the jurisdiction to decide the disputes raised in these matters may also be examined. In two matters, the disputes relate to rejection or acceptance of nomination papers and in the third matter to the rejection of eight ballot papers polled by the petitioner. The provisions of Chapters VIII and IX of the Electoral College Act have been summed up in the earlier part of this order which bring out that the grounds on which the election of the returned candidate may be set aside or the petitioner or any other person declared to have been duly elected or the election as a whole set aside are not set out in the Act or in the Rules. From this. the learned counsel desired us to infer that no Tribunal exists to decide the disputes raised in these matters.

14. It is true that the grounds on which the reliefs enumerated in rule 35(6) of the Electoral College Rules, 1964, may be obtained are not set out anywhere, but it does not follow that the disputes of the kind with which we are concerned fall outside the scope of an election petition to be tried by the Tribunal under section 60 of the Act. On the contrary, the scope is very much wider. Under section 58(2) any candidate may make an election petition challenging the election at which he was a candidate and under section 60 the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such order as it may think fit. There is, thus, no particularisation of the grounds which may be raised in a petition to challenge an election. One instance of those grounds will be found in the definition of Election Offences set out in Chapter IX of the Electoral College Act, though it is not said so in the Act or the Rules and there may be very many other grounds which, if established, will call for setting aside of an election. The contention that the Tribunals established under the Electoral College Act are not competent to decide the dispute raised in these matters has, thus, no force.

15. Mr. Karam Elahi Chohan, learned counsel for the petitioner in Writ Petition No. 1606 of 1964, also raised the following contentions: (i) The bar to the jurisdiction of Courts under Article 171 was confined to the elections to the office of the President and the National and Provincial Assemblies. (ii) That Article 171 did not affect the jurisdiction of the High Court ‑under Article 98 and a direction will issue to a returning officer or any other Election Authority to exercise their functions in accordance with the provisions of the Act. The first ground stands disposed of by the words "election to be held under the Constitution" used in clause (a) of Article 171 and "such an election" in clause (b) as an election to the Electoral College is held under Article 158 of the Constitution. The second contention has also no force because care has beer: taker, to state at the beginning of Article 98 that "a High Court shall have such jurisdiction as may be conferred on it by this Constitution or by law" and again "subject to this Constitution" a High Court of a Province may, if it is satisfied . . . . . make an order‑ (i) directing a person performing in the Province functions ‑in connection with the affairs of :be Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or. proceeding taken in the province by a person performing functions in connection with the affairs of the Centre, the province or a local authority has been done or taken without lawful authority, and is of no legal effect ;" The jurisdiction to be exercised under Article 98 is, thus, subject to the various provisions' of the Constitution; for example, I Article 171, though, as stated earlier, the bar is not absolute in all circumstances.

16. To conclude, we hold that the present writ petition, in which intermediary orders passed by the returning officers in two cases and by the presiding officer in the third case during the course of the last election to the Electoral College have been brought under challenge, are not competent under Article 98 of the Constitution. The same shall accordingly stand dismissed; but, in the circumstances of the case, the parties shall bear their own costs. As substantial question of law as to the interpretation of Article 171 of the Constitution is involved in the case, certificate under Article 58 is granted for appeal to the Supreme Court. A. H.Petitions dismissed.