P L D 1956 (W (PLP)

Where a party in an election dispute pursued his remedy by a writ petition instead of by an election petition, and the High Court refused to exercise their writ jurisdiction in the circumstances of the case, exercise of such jurisdiction being discretionary, and the remedy by election petition was in the meantime time‑barred Held, that it was not for the High Court to apprise the party of the discretionary aspect of their writ jurisdiction in order that the party might have recourse in time to the proper, remedy by an election petition. H. S. Suhrawardy and Sharif‑ud‑din for Petitioner. A. Aziz for Respondent No. 3 (on 21st March 1956) and Suleman for A. Aziz (on 29th May 1956). Dates of hearing : 21st March and 29th May 1956. JUDGMENT. AKHLAQUE HUSAIN, J.‑According to para. 8 (2) of the second schedule to the Establishment of West Pakistan Act, the elected members of the Cantonment Boards of Karachi, Drigh Road, Malir and Manora were to elect one member to the Interim Legislature of West Pakistan. By sub‑para. (1) of para. 10 of the schedule it was provided that, inter alia, the election under para. 8 (2) shall be conducted in accordance with the Rules in the third schedule. These Rules did not provide for the prepara tion of an electoral roll or a list of persons entitled to vote presumably because the number of the persons entitled to vote in the constituencies mentioned in para. 10 (1) was small and their names were necessarily contained in some official record or other. It appears, however, that printed "notes for the guidance of the Returning Officers appointed for the election .of members of the Interim Provincial Assembly of West Pakistan under paras. 1, 2, 3, 5 (2) and 8 of the second schedule to the Establishment of West Pakistan Act, 1955" were sent to all the Returning Officers prior to the elections. These notes do not purport to have been issued in accordance with any law or rule having the force of law. Nor does it appear there from as to what person or official was responsible for their preparation or issue. It may be safely presumed that they were issued by the Election Commissioner and contain an explanation and amplification of the relevant law and proprieties to which, according to him, the attention of the Returning Officers ought to have been drawn. Para. 2 of these Notes opens with the sentence: "Lists of persons who are entitled to vote in accordance with the provisions of the second schedule to the Establishment of West Pakistan Act, 1955, in each district, area, or body, from which a member or members is or are to be elected are being forwarded to each Returning Officer." Unsigned lists of the elected members of the Cantonment Boards of Karachi, Drigh Road, Malir and Manora were forwarded to the Returning Officer of the Constituency in which these persons were entitled to vote. Eighteen persons nominated the respondent No. 3 Malik Bagh Ali, as a candidate for election from the Constituency and consequently eighteen nomination papers were filed in his favour. One nomination paper filed in favour of the petitioner who had therein been nominated by one Sayyed Iqbal Hussain. On the 13th January 1956, the date for scrutiny of the nomination papers, the respondent No. 3 objected to the validity of the nomination of the petitioner on the ground that although the name of Sayyed Iqbal Hussain was included in the list of voters from the Cantonment Board, Drigh Road, he was not on the date of nomination, namely, the 12th of January 1956, a member of that Board. It might be mentioned here that during the elections to that Board which had been recently held, Sayyed Iqbal Hussain had been elected as a member, but his election had not been notified as required by law. In reply to the objection it was contended that the list of voters which had been forwarded by the Election Commissioner must be treated by the Returning Officer as conclusive. The Returning Officer upheld the objection and rejected the nomination of the petitioner as invalid and, there fore, the respondent No. 3 was left as the only duly nominated candidate for the Constituency. The petitioner on the 18th of January 1956 filed a petition in this Court impleading the Returning Officer, Sayyed Iftikhar Hussain, the Election Commissioner for the Interim Assembly of West Pakistan and Malik Bagh Ali as respondents. The following reliefs were prayed for "(a) That the Honourable Court may be pleased to issue, give and grant writs in the nature of certiorari, mandamus and/or prohibition or other appropriate writs, calling for the records, lists and nomination papers from the Res pondents Nos. 1 and 2, quashing all the proceedings, setting aside election of Respondent No. 3, ordering fresh election after due preparation of the voters list. (b) Writ of prohibition and/or injunction be issued restraining Respondent No. 1 from notifying the alleged declaration of election of Respondent No. 3 in the Official Gazette and also restraining Respondent No. 3 from exercising any right or privilege as member of the West Pakistan Legislative Assembly. (c) The Honourable Court may be pleased to issue and grant such further and other rules, reliefs, direction, prohibitory and other orders and writs as may be appro priate and as the nature and circumstances of the case may require. (d) That the Respondents be ordered to pay the costs of the petition." Along with the petition an application purporting to be under section 151, C. P. C., for ad‑interim injunction restrain ing the Respondent No. 1 from notifying the election of Respondent No. 3 was filed. A Division Bench of this Court consisting of Justices Muhammad Bakhsh and Lari issued the interim injunction as prayed for. After notice to the Respondents the question of interim injunction was finally disposed of by another Division Bench of this Court by its order dated the 3rd of February 1956, whereby the application was dismissed and the rule nisi discharged. At the hearing of this petition a preliminary objection was raised that as it was open to the petitioner to have sought redress through an election petition to the Governor and as the Election Petitions Tribunal has exclusive jurisdiction over all disputes relating to elections, this Court should not entertain this petition. It was further contended that in view of the provisions of subsection (6) of section 12 of the Establishment of West Pakistan Act that "the validity of an election under section 11 of this Act shall not be questioned in any Court" an application for a writ does not lie to this Court. As regards the second contention, we agree with Mr. Suhrawardy that subsection (6) of section 12~ of the Act is not a bar to our writ jurisdiction. It is a jurisdiction conferred by the Constitution and it is the Constitution alone which can modify or restrict it. It cannot be taken away or limited by any Act of the Legislature. We are, however, of the opinion that the present is not a fit case for the exercise of our writ jurisdiction. It is in the discretion of the Court to exercise it or not in the particular circumstances of a case. Ordinarily it ought not to be so exercised as to supplant the jurisdiction of ordinary Courts or Tribunals unless it appears that the remedy available through them would not be adequate to the special circumstances of a particular case. Here in the instant case an election petition lay to the Governor under para. 3 of the Government of India (Provincial Elections) (Corrupt Practices and Elections Petitions) Order 1936, which is appli cable to the election in question, "on any ground"; and under para. 7 the election of the returned candidate shall be void if "the result of the election has been materially affected by the improper acceptance or rejection of any nomination, or by reason of the fact that any person nominated was not qualified or was disqualified for election" (grounds which are sufficient to cover the grievance made through the present petition); and under section 12 of the Establishment of West Pakistan Act a petition to the Governor can dispute the "validity of the election" of any person. It is thus clear that the petitioner could have obtained full redress through an election petition and there is no valid reason to justify the exercise of our extraordinary jurisdiction under section 223‑A of the Government of India Act in this case. Mr. Suhrawardy submitted that we should entertain' the petition and dispose it of on merits because this Court had never pointed to him this aspect of the matter while there was yet time for him to move a petition to the Governor, the time for making which has now expired. A short and sufficient reply to this argument is that it is not the function of the Courts to act as legal advisers to the litigants. In this particular case the petitioner had the assistance of able counsel whose duty it was to have advised him to follow the right and proper course prescribed by law. It so, however, happened that in this particular case this Court did draw the attention of the petitioner and his counsel to the question under consideration. While dismissing the petitioner's application for ad‑interim injunction under section 151 of the Code of Civil Procedure the Division Bench of this Court concluded its order by observing "We do not at this stage consider it necessary to go into the contention that the petition is not maintainable in view of section 12, clause (6) of the West Pakistan Act, 1955." That order was made on the 3rd of February 1956. Under section 11 of the Act a petition to the Governor could have been made "within a period of 30 days after the publication of the result of the election in the Official Gazette", which in this case was done on the 16th of January 1956. Thus it was open to the petitioner to have made a petition to Governor under section, 12 at any time up to the 16th of February 1956, and therefore, the petitioner had nearly two weeks after it had been pointed out to him by the Division Bench that the question of maintainability" was yet undecided. No reason or justification has been urged before us for the petitioner's refusal to avail himself of the very adequate remedy which he could have had by means of an election petition to the Governor and it would seem that he deliberately persisted in seeking a remedy through the present writ petition which could have been granted to him only if he could not get full and adequate redress for his grievance in the ordinary manner prescribed by law. Reliance was placed on certain authorities for the proposition that a writ may be issued even at the instance of a person who has failed to avail himself of the ordinary remedy of law. We may shortly refer to these to point out that they do not support the contention of the learned counsel for the petitioner and that in every case where the writ jurisdiction was exercised it was exercised either on the ground that adequate relief could not be had through ordinary channels or that the petitioner was prevented from resorting to the ordinary Court or Tribunal without any fault or remissness on his part. In a case decided by a Full Bench of Nagpur High Court and reported in Kanglu Baula v. Chief Executive Officer (A I R 1955 Nag. 49) it was held that the powers of the High Court under Article 226 (of the Constitution of India, which, in this instance, corresponds to our section 223‑A of the Government of India Act) are untrammelled by any law made by the Legislature and even though section 22 of the C. P. and Berar Local Government Act says that elections can be challenged only by an election petition to the Tribunal created by the Act, the jurisdiction of the High Court derived from the Constitution can in no way be affected. As we have already pointed out, there is no doubt about our jurisdiction in this case; the only question is whether, in the circumstances of this case, we should exercise it. We further agree, with respect, with the learned judges that "the existence of another remedy is not in every case a bar to the exercise of the powers of a High Court Under Article 226 and the Court can interfere if the circumstances, of the case demand interference." In that case the High Court interfered because : "The point, which had been raised in the petition under Article 226, was of a fundamental character and affected a large number of election disputes. Those very questions were argued before the High Court at least on two previous occasions on which two different views were taken. Further, though a preliminary objection as to the tenability of the petition on the ground of other remedy open had been raised, the Court heard counsel on the merits of the petition for several days." Whether, in the circumstances of that case, their Lordships were justified in exercising their extraordinary jurisdiction on these grounds is a question upon which it is unnecessary for us to express any opinion because none of those considerations are present in the case before us. What is important, however, is the fact that their Lordships did recognize the principle that "No doubt, the High Court would not ordinarily interfere under Article 226 where another remedy, which is equally convenient, is open to the petitioner." In Radhe Sham Dhan v. Chief Commissioner, Ajmer (A I R 1956 Ajmer 25), decided by the learned Judicial Commissioner of Ajmer, an application for a writ of mandamus had been filed praying, inter alia, for a direction to the District Magistrate of the State of Ajmer to refrain him from holding the election and poll to the Ajmer Municipal Committee on the 9th of September 1955. It is evident that at the time, i.e., before the holding of the election, the remedy sought could not have been had through an election petition. Similarly in this case the ad‑interim injunction sought by the petitioner could not have been obtained by means of an election petition and, therefore, the learned judges, in the absence of any other objection to the contrary, entertained and disposed of the petitioner's application for interim injunction. The ruling in Ch. Ghulam Ahmad v. The Punjab Province (P L D 1955 Lah. 635), wherein a writ was issued to the Commissioner of a Division not to notify the election of the President of a Municipal Committee on the basis of the elections held at a certain meeting of the Committee which were held to be "entirely without any valid basis", is obviously inapplicable to the facts of this case. Re Barnes Corporation, Ex‑parte Hutter ((1933) 1 K B 668) is cited in the foot‑note at page 88 of the eleventh Volume of Halsbury's Laws of England, 3rd Edition, for the proposition that a mandamus will be issued when the Court is of the opinion "that there has been in fact no election". The actual report of the case was not placed before us and we are not in a position to know in what circumstances the ruling was given ; but taking it at its face value it does not seem to have any bearing on the present case, because we are unable to hold that the election in question was altogether void. In fact we do not think that the petitioner has any case on merits. We are inclined to agree with the observations of our brothers, Bachal and Munshi, JJ., that "Prima facie, in the absence of any rules for the preparation, revision and publication of electoral rolls of the Interim Legislature, the Returning Officer had jurisdiction under Rule (3) above‑mentioned to decide whether the petitioner had been validly nominated, and there appears no patent error on the face of the record in holding the date of notification in the Gazette as the date of election of the members of the Board, having regard to the provisions of sections 13 (7) and 15‑(4) of the Cantonments Act, under which Iqbal Hussain and the outgoing member could not both be members till Iqbal Hussain's name was notified. " We do not see any substance in another contention of Mr. Suhrawardy, namely, that there was no Election Petitions Tribunal contemplated by section 12 of the Establishment of West Pakistan Act in existence on the date that the present petition was made, namely, the 18th of January 1956. This argument was evidently advanced without any reference to the provisions of section 12 of the Act, according to which the Tribunal could have been brought into existence only after the making of the petition to the Governor. For the foregoing reasons we refuse to exercise our jurisdiction under section 223‑A of the Government of India Act in favour of the petitioner and we accordingly reject the petition with costs. A. H. Petition rejected.