1980 PLP 952 (CLC)

63. W. P. No. 6341/1979

64. W. P. No. 6477/1979

65. W. P. No. 6491/1979

66. W. P. No. 6461/1979 .

67. W. P. No. 6487/1979

68. W. P. No. 6582 1979

69. W. P. No. 6585/1979 70.W. P. No. 6722/1979

2. In all these writ petitions, the common and fundamental question which falls for determination is the maintainability of the writs. 3. 1 had called the learned Advocate-General Punjab to assist me in resolving this question. The counsel present submitted that instead of the writ-petitioners starting their arguments the learned Advocate General may be asked to address the Court first, The learned Advocate General also joined the above request.

4. The learned Advocate-General divided the writ petitions in three broad categories :- (f) those which involve controversy as to violation of section 21 of the Punjab Local Government Ordinance, 1979 ; (ii) those which challenge the election on the basis of contest of election by rival candidate on political basis and thus covered by section 21-A of the Ordinance ; and (iii) those with allegations of general nature such as may cons titute illegal and corrupt practices and/or violation of rule and the law governing the conduct of election. He argued that Article 199 of the Constitution by its very wording envisages that this constitutional jurisdiction can be invoked and exercised when there is no other adequate remedy available for redress of the grievance which is the subject matter of a petition under this Article. He submitted that in order to reach some conclusion in respect of the petitions under consideration the provisions of law as contained in the Punjab Local Government Ordinance will have to be examined to find out whether or not any machinery is provided by the statute itself to meet situations as may arise out of any of the three categories enumerated above. He referred to the provisions of sections 17, 21-A, 25 and 29 of the Ordinance in this regard. He divided the periods during which the disputes of election could and have arisen. The first period, according to the learned Advocate General, was the pre-election period which he stated, continued till the official declaration of the result of election had been made and notifica tion in that regard issued and the second period as termed by him as the post-election period which commenced after the official declaration of the result and issuing of the notification in respect thereof.

5. As regards the first period, he pointed out that all grievances and disputes arising out of Election matters which may be the violation of rules during the conduct of election, the acceptance of invalid nomina tions and such-like other matters could be got redressed by a petition filed before the Election Authority under ' section 17 of the Ordinance. Elaborating his contention the learned Advocate-General submitted that the provision relating to power under section 17 conferred on the Election Authority under the Ordinance is in pari materia with the pro vision relating to power conferred upon the Election Commission which is charged with the function of conducting elections to the Houses of Parliament and the Provincial Assemblies under Article 218 of the Cons titution and by sections 5(3) of the Presidential Order No. 4 of 1977. The power under section 17 of the Ordinance he submitted, can be exercised by the Authority till the official declaration of the result and also in respect of cases where official declaration has been stayed by this Court. As to the competence of the Election Authority to deal with all disputes of elections till the result thereof has been notified he drew support from the following cases decided by the Election Commission :-- (1) In re : Complaint of Malpractices in Constituency No. N-A-S7, Sargodha-V (P L D 1977 Jour. 164) ; j (2) In re : Complaint of Malpractices in the Election of Constituency No. N-A-76, Lyallpur-IX (P L D 1977 Jour. 180) ; and (3) In re : Malpractices Committed in the Election to Constituency No. N-A-89, Kasur (P L D 1971 Jour, 198).

6. In so far as the disputes of election which have or may arise subsequent to the official declaration of the result, he argued the remedy has been provided for resolving the same by sections 2l-A, 24 read with 25 and 29 of Ordinance VI of 1979. 1n the case of a candidate incurring a disqualification as envisaged by section 21 the Government has been given the power under section 29 of Ordinance to remove the elected Member after giving him an opportunity of hearing. In view of this provision, it was urged by the learned Advocate-General that cases which make a grievance that disqualification was attached to the elected member or has now been incurred by him the petitioner can file a petition before the Government and thus another remedy is available for such cases.

7. Similarly as regards the grievance In the writ petitions that elections had been contested by rival candidates in violation of sec tion 21-A of the Ordinance the remedy, he said, is provided by the sec tion itself in that the Authority has been empowered to disqualify the member who may be found to have contravened the above provision.

8. The third category of disputes, i.e. the commission of illegal and corrupt practices and/or violation of law and rules during the con duct of elections, the forum provided is the Election Tribunal set up under sections 25 of the Ordinance before which an election petition could be filed as provided by sections 24 and 25 of Ordinance VI of 1979 read with the Punjab Local Councils (Election Petitions) Rules, 1979.

9. To sum up his arguments the learned Advocate-General sub mitted that the only thing that now remains to be seen is whether the aforementioned remedies provided by the statute are adequate or not. He submitted that when a forum is provided by the statute itself it is the fundamental principle that it has to be taken as adequate and that constitutional jurisdiction in such cases, should not be invoked. Addi tionally, he pointed out, that the matters necessarily call for a factual enquiry which can be more effectively dealt with by Tribunals of competent jurisdiction rather than resolving them through writ petitions. In .support of his above contention the learned Advocate General placed reliance on Sheikh Rashid Ahmad v. Settlement Commissioner Lahore and others(1970 S C M R 278).

10. The last submission made by the earned Advocate-General was that the only other thing that may be said by the writ.-petitioners could be that the holding of office as a Member by the Returned Candi date is questionable under Article 199(1)(b)(ii) of the Constitution by seeking a writ in the nature of qua warranto. He submitted that it is also well settled that qua warranto jurisdiction stands displaced when other forum for obtaining relief in the nature of quo warranto has been provided by the statute itself. Reliance was placed by the learned Advocate-General to support his above contention on A I R 1954 Dom.

116. He concluded by saying that the present writ petitions are not maintainable.

11. From amongst counsel for the writ-petitioners only S. Riazul Hsan Gulani, Mr. N. A. Shami Mr. Asif Sajjad, Mr. Muzaffar Qadir, Ch. Rafique Ahmad Bajwa, Malik Muhammad Qasim, Ch. Imtiaz Ahmad, Mr. Muhammad Afzal Qureshi, Mlik Talib Hussain Awan, Ch. Muhammad Nasrullah Waraich, Mr. M. D. Tahir and Ch. Hafeez Ahmad Advocate chose to appear and argue the cases. The latter six learned Advocates only adopted the arguments which were advanced by the others.

12. Mr. Asif Sajjad Jan Advocate, learned counsel for the petitioner in W. P. No. 6084/1979 submitted that the alternative remedy has to be adequate and the word "adequate" imports that the remedy should be speedy and inexpensive. He further submitted that the remedies before the Election Authority and/or the Government/or the Election Tribunal are not adequate as the same are more expensive and less speedy. In the context of the above position and relying on Mahboo6 Ali Malik v. The Province of West Pakistan and another (P L D 1963 Lah. 575) he urged that in a matter like the writ petition in which he was appearing for the petitioner the other remedy cannot be said to be adequate. He argued that in his case the petitioner had polled 124 votes, 2 of which had been illegally held invalid leaving the balance at 122 votes. The same number, viz. 122 had been secured by the respondent and as such ballot was drawn in which the respondent became successful. The grievance was that the 2 votes of the petitioner had been illegally kept out of counting. When asked whether this situation would not require going into the disputed fact whether the 2 votes in question were lawfully excluded from counting or not he had to concede that it does require going into a disputed question of fact.

13. Syed Riazul Hassan Gilani Advocate appearing for the writ-petitioner in W. P. No. 6585/1979 submitted that the remedies of filing a petition before the Election Authority or the Government as provided by sections 21-A and 29 respectively or not efficacious because the Authority is not hearing the matters in a regular manner till date. The learned counsel, however, admitted that no petition has been filed by the petitioner under section 29 before the Government for having the election of the respondent annulled on the basis of the latter being a member of a political party which has not been registered.

14. Mr. N. A. Shami appearing for the petitioner in W. P. No. 6051/1979 only submitted that the remedies under sections 17, 21-A and 29 cannot be said to be alternative remedies as there is no specific provision laying down that an aggrieved person can move those forums and as such the forums concerned can only act suo moto.

15. Mr. Muzaffar Qadir Advocate appearing for the petitioner in W. P. No. 6098/1979 submitted that no doubt alternative remedy of moving a petition before the Election Authority is available but the real point for consideration is whether the Authority is functioning in a regular manner or not. He argued that the Authority is not still func tioning properly in that neither they have formulated a procedure for receiving petitions nor for giving them a number or fixing a date of hearing. In such a situation, he argued, alternative remedy of filing a petition under section 21-A cannot be said to be available and in any case it should be deemed that the Authority is refusing to exercise jurisdiction. As a result, he contended, that till the time the Authority takes cognizance of the matter laid before it, the petitioner would be entitled to the interim relief prayed for.

16. Ch. Rafique Ahmad Bajwa Advocate appearing for the peti tioner in W. P. No. 6179/1979 contended, firstly, that since malpractices were Country-wide and a number of writ petitions have been filed it could not be said that the remedies provided by the statute are adequate alternative remedies ; secondly, that the Authority in view of a large number of petitions pending before it and in view of the complaints about a large number of people contesting the elections on political basis should have moved on its own ; thirdly that having not exercised the powers conferred upon it by section 21-A in any case the remedy has become in effective ; and lastly that after the declaration of results officially and issuance of notifications, the aggrieved person has to move different forums for redress of different grievances. For example, for having the election of his rival candidate annulled on the basis of incurring dis qualification as provided by section 21, Government has to be moved under section 29, whereas for normal election disputes, such as illegal and corrupt practices, violation of rules, etc. an election petition has to be filed before the Tribunal and for getting a member disqualified on account of violation of section 21-A the Election Authority has to be moved. In the context of this position, he submitted that for a petitioner who levels all these three charges the adequate remedy would be a writ petition. The learned counsel was asked as to whether he had taken the grounds which he was urging before me in the writ petition. He very candidly conceded that it has not so been done.

17. Malik Muhammad Qasim, Advocate, learned counsel .for the writ-petitioner in W. P. No. 6252/1979 only submitted that in view of a large number of cases pending, the election of special seats, Chairman, Vice-Chairman etc. should not be allowed to be held till the effectual adjudication of writ petitions as no interim relief can be granted by other forums.

18. In order to resolve the controversy as to maintainability or otherwise of these writ petitions two important factors shall have to be examined ;-- (a) whether there are alternative remedies available for redress of the alleged wrongs ? (b) if so, whether those alternative remedies are adequate ? 19: From the foregoing narration of facts and contentions raised by the learned Advocate -General and by some of the learned counsel, fore the writ-petitioners, it is obvious that there is no denial of the fact that alternative remedies are provided for by the statute, viz. The Punjab Local Government Ordinance, 1979 (Ordinance VI of 1979) which cove practically the subject matter of each of these writ petitions. In so far as the cases covered by sections 21 and 21-A of the Ordinance are concerned, the remedies under sections 29 and 21-A are available irrespective of whether the disputes relate to pre-election or post-election periods. That being so, the petitions involving controversies covered by the said sections cannot legitimately form the subject of a constitutional petition under Article 199 of the Constitution.

20. As regards controversies covered by section 17 of the Ordi nance, it may be observed that an alternative remedy is equally provided under section 24 of the said Ordinance after the results of election have been officially declared. Considering that the said official declaration of results of election have already been made throughout the Province and the Punjab Local Councils (Election Petition) Rules, 1979 have also been promulgated, the remedy by way of an election petition under section 24 (ibid) read with the aforesaid Election Petition Rules has already become available.

21. The upshot of the foregoing discussion is that irrespective of whether the controversies involved in the present petitions pertain to section 17, 21, 2:-A or 24 of the Ordinance, the petitions become un maintainable because of availability of alternative remedies provided therefore as indicated above.

22. Adverting now to the point whether the alternative remedies afore-mentioned are adequate or not, it may be observed at the outset that nothing substantial had been urged on behalf of the writ-petitioners to show that the remedies provided for by the statute were not adequate. It is an undisputed proposition that if a remedy is provided for under a special statute it must be taken as adequate and so considered by the Legislature unless extraordinary circumstances are shown to the contrary. The common contention raised on behalf of the writ-petitioners in this regard was to the effect that the Election Authority was not properly functioning, that there was no procedure laid down by it for entertaining applications/petition etc. and for hearing and disposing them of. This contention, if 1 may say so, is misconceived for the following reasons. 23. 1n the first place, the above allegations have been controverted by the Election Authority on whose behalf Election Officer appeared before me with the learned Advocate-General and stated that the Autho rity is properly functioning, that it maintains a register for entering petitions which are given numbers, that it hears them serial wise, and that it has disposed of many petitions.

24. Even otherwise, if the grievance based upon the allegations that the Election Authority is not dealing with the cases were to be assumed as correct, though the same have been refuted, a writ petition for relief based upon merits of controversies as raised to the present petitions would anyhow be not entertainable and the only direction that could be sought for from this Court on presentment of a proper petition a would be for hearing of the case by the Election Authority.

25. Apart therefrom, it is also undeniable that the nature of allega tions made in the writ petitions under discussion essentially raise disputed questions of fact. If these writ petitions are held maintainable it would of necessity give rise to holding of enquiries into disputed questions of fact. On that score also, these petitions must be held as not maintainable under the well known principle of law settled by judicial precedents that controversies raising disputed question of fact do not appropriately fall within the scope of constitutional jurisdiction of this Court under Article 199 of the Constitution.

26. It seems appropriate to mention here that it has been the consensus of opinion of the superior Courts of the Country, including the Supreme Court of Pakistan, that ordinarily the Court in exercise of its constitutional jurisdiction declines to interfere in cases of election. In Imtiaz Ahmad v. Ghulam Ali and others (l) their Lordships of the Supreme Court observed thus at pages 384-385 It is well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of. See Woolverhampton New Water Works Co. v. Hawkesford (P L D 1966 Lah. 88) and Novile v. London Express Newspaper Ltd. (P L D 1963 S C 382) Hence ordinarily the Court in exercise of its writ jurisdiction declines 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. There is another reason why the Court declines to enter into these questions because in such cases there are bound to be serious disputes on questions to fact which cannot be properly decided in the writ jurisdiction. If it was to do so, it would enter into by a field of investigation which is more appropriate for a Tribunal rather than for a Court exercising the prerogative of issuing writ." Again, in Ahmad Saeed Kirmani v. Muhammad Nawaz Cheema P. C. S, and another (2) following the abovementioned authority of the Supreme Court it was held that the election dispute had to be decided in accor dance with law laid down for election disputes and in no other way. The above principle as enunciated by the Supreme Court of Pakistan in P L D 1963 S C 382 has been invariably followed in matters of election disputes brought as subject of controversy in constitutional petitions.

7. It would not be out of place to mention here that there appears considerable force in the contention raised by the learned Advocate. General to the effect that the jurisdiction of the Court under Article 199(1) (b) (II) of the Constitution (quo warranto jurisdiction) also stands displaced when other forums for obtaining relief in the nature of quo warranto has been provided for by the statute itself. In the Law of Extraordinary Legal Remedies by Ferries, in Chapter VII, para. 110 at page 132 relating to quo warranto, it has been stated as under "Generally speaking, the proceeding will not lie where there is another adequate remedy available."

28. The following observations appearing at pages 113-114 in Lt.-Col. Farzand Ali and others v. Province of West Pakistan (P L D 1970 S C 98) lends support to the above principle :- "The introduction of election petitions to test the validity of elections and statutory provisions for appeals, have no doubt reduced the demand for the remedy but have not excluded it altogether. It will still be available in all cases where the matter is, as in the case under consideration, outside the scope of the statutory remedy." '(Underlining is mine).

29. Whilst contending the inadequeacy of other remedies Mr Asif & Sajjad Jan relying on P L D 1963 Lah. 575 submitted that the remedy of election petition was not adequate as the Tribunals and the Election Authority were likely to take a considerable time for finally deciding the matter if laid before them on account of pendency of a large number of petitions there. No data exists on record in support of the above contention. Without subscribing to that view therefore I feel that this reason cannot be made a basis for entertaining writ petitions pertaining to election disputes for if that be made the basis then this Court would itself be choked with constitutional petitions of election disputes and it will take much longer period here for disposal of these matters than what may be spent by the forums made available under the statute as those are more suited for resolving controversies as to disputed questions of fact.

30. It would be of interest to reproduce hereunder the conclusion arrived at by the Full Bench at page 582 in the aforecited judgment in Mahboob Ali Malik's case :- "On the other hand, if there is another authority which has the power to give the relief of the requisite nature and extent, and this Court has to make a comparison of the speed, expense or convenience of giving that relief under Article 98, with the speed, expense or convenience of obtaining it from the other authority, the fact that it would be necessary to take evidence before giving the relief, might be almost a determining factor against attempting to give relief under Article

98. The need for taking oral evidence. in such a case, would almost certainly be a conclusive consideration for not acting under Article 98." .

31. This conclusion not only knocks the bottom out of the contention raised by the learned counsel but also lends support to my view, as taken above, that controversies relating to disputed questions of fact do not appropriately fall within the scope of constitutional jurisdiction of this Court under Article 199 of the Constitution.

32. Argument was also raised by the learned counsel to the effect that an alternative remedy should be considered as not available because of the fact that interim relief cannot be sought under Ordinance VI of 1979. Without committing myself to a final view that mere non-availability of interim relief in a given case would render a constitutional petition under F Article 199 maintainable, I would observe that it is well settled that the power to grant interim relief is inherent in the constitution of a judicial and/or quasi-judicial forum. As such, even the above contention will be of no avail so as to make these petitions maintainable. 33. 1t may be added here that Ch. Rafique Ahmad Bajwa Advocate urged some other grounds, as indicated above, which admittedly find no mention in the writ petition in which he appeared. On this short ground alone I do not feel called upon to deal with them.

34. In view of the foregoing discussion, these writ petitions are not maintainable and are dismissed as such. M. Y. M. Petitions dismissed.