1983 PLP 2734 (CLC)

Section 37(2)(f) of Sind Local Government Ordinance, 1979 on which the learned Counsel relied reads as follows :‑ Section 37 (2).‑A person shall be disqualified from being elected as, and from being a member, if ‑ (a)

(b)

(c) (d) (e) (f) be is for the time being disqualified for membership of an elective body under any law for the time being in force." , .

4. On 24th August, 1981 the above Petition came up for kateha peshi and the following order was passed by a learned Division Bench of this Court :‑ "We have pointed out to the learned Advocate that the petition prima facie appears to be suffering from laches and that there was no evidence whatsoever before us to show that respondent No. 1 was an office‑bearer of an unregistered political party. He requests for time, so as to prepare himself on these two points."

5. On 2nd September; 1981 the learned Advocate for the petitioner was further heard on the points mentioned above but he was neither able to explain the laches in filing the petition nor any admissible evidence was produced to show that the respondent No. 1 was an office‑bearer of an unregistered political party and was disqualified within the meaning of section 27(2)(f) of Sind Local Government Ordinance, 1979. In the circumstances of the case we are also of the view that it is necessary for this Court to inquire into the conduct and motives of the petitioner in order to determine whether the Court should exercise it discretion to decline the grant of writ of quo warranto. In order to reach c the conclusion, we may refer here to the principles laid down by the Honourable Supreme Court of Pakistan in the case of Kamal Hussain v. Sirajul Islam (P L ,D 1969‑S C 42) wherein at page 51 the Hon'ble Court held ,.,as follows :‑ "Under Article 98(2)(b) any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority. On that account it cannot be doubted that Mr. Sirajul Islam did have the locus standi to file the petition, but the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer tenchnalities on a doctrinaire approach. In the present case, considering all the circumstances I cannot escape the feeling that Mr. Sirajul Islam is not entirely playing his own game, for high altruistic motives, and that he‑ has instituted the writ petition not so much for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations." As regards the delay in filing the petition it was further, observed :‑ "The delay that has occurred in the filing‑ of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief."

6. The learned High Court of Lahore also in the case of Muhammad Siddiq v. Karam Bakhsh (P L D 1971 Lab. 928) declined to entertain petition in which writ in the nature of.quo warranto was sought to be issued on the principles laid down in para: 281 at pages 148, 150 of Vol. II of Halsbury's laws of England to the effect that an information in the nature of a quo warranto would not issue and an injunction in lieu thereof will not be granted, as a matter of course and that it is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The learned author further proceeded and stated :‑. . "The Court would inquire into the conduct and motives of the appli cant, and the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information 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 Again, where the circumstances of the application are 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." In the present case as well, we find that the matter would involve recording of evidence and determining intricate questions of facts. The petitioner could have availed remedy before the Election Authority by way of alternate remedy where the disputed questions of fact involving recording of evidence and decision on the disputed questions of fact would more appropriately be adjudicated. Further delay in filing the petition has also not been satisfactorily explained.

7. Considering the facts and circumstances of the case and for the reasons stated above we are of the opinion that it is not a fit case in which the petitioner whose bona fides are not beyond doubt can invoke the constitutional jurisdiction of this Court, after lapse of almost .two years.

8. The petition was dismissed by short order passed on 2nd September, 1981 and the above are reasons for the same. M.Y.M. Petition ‑dismissed.