P L D 1969 Dacca 205 (PLP)

No. 3, yet by going beyond limits he has inadvertently supported the contention of the petitioner in this respect which he should not have at all done. The report of respondent No. 2 as well as the ballot papers were placed before us by the learned Government Advocate but we do not propose to go into any discussion of those for reasons which will be clear from the view we are taking of the law in this matter. The learned Advocate for respondent No. 3 Mr. Brohi submitted 3 points for our consideration in this matter but before doing to, Mr. Brohi made it abundantly clear to us that he does not subscribe to the view that in a case of quo warranto, the Court cannot go behind the letter of appointment. He submitted that in a case where quo warranto can be issued the Court certainly has right not only to look into the letter of appointment but also can behind it to sea that it is backed by legal authority. The first point that Mr. Brohi canvassed for our considera tion was as to whether having regard to the facts and circumstances of the case this Court will hold that it has jurisdiction to deal with this matter. In clarifying the point Mr. Brohi submitted that this is a case which may be termed as election dispute and is governed by specific law provided for the purpose namely, East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules, 1965. Taking his stand on the facts that this is a case of election dispute, Mr. Brohi referred us to sub‑Article (2) under Article 98 of the Constitution which reads as follows:‑ "(2) Subject to this Constitution a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law‑ (a) On the application of any aggrieved party, make an order‑ (i) directing a person performing in the province functions In connection with the affairs of the 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, or (b) On the application of any person, make an order‑ (i) directing that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner, or, (ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office, or, (c) On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter I of Part II of this Constitution." Mr. Brohi's contention is that there is a constitutional limitation on this Court with regard to the issuance of writs or orders mentioned in Article 98 of the Constitution. Mr. Brohi means to say that the power of the High Court to issue writs and orders under the present Constitution is no more as wide and open as it was under the 1956 Constitution or even President's Order No. 1 (Laws Continuance in Force Order), 1958. This according to Mr. Brohi is apparent from the wording of sub‑Article (2) of Article

98. The jurisdiction to issue writs by the High Court has now become a matter of provision of the Constitution and has to be exercised in terms of the constitutional provision. Read in this context according to Mr. Brohi sub‑Article (2) of Article 98 of the Constitution lays down two conditions for the High Court to be observed prior to the issuance of any of the writs mentioned in Article 98 of the Constitution. Mr. Brohi in this context puts the question: "Is there any constitutional limitation for the High Court to issue writs and if the answer is in the negative then the Court must satisfy itself as to constitutional obligation and as to the adequate remedy provided by law in the matter in respect of which writ is asked for". This satis faction according to Mr. Brohi is not a satisfaction simpliciter nor this is a satisfaction in the ordinary sense of the term. It is a judicial satisfaction which the Constitution itself demands of the Court. Therefore according to Mr. Brohi the High Court prior to issuing writ is obliged to satisfy itself as to whether there is adequate remedy available to the petitioner under any other law prior to granting writ. If the Court after examining the question is satisfied that there is no other adequate remedy provided bylaw to which the petitioner can take resort then and then alone the power to issue writ becomes available to the High Court. Of course Mr. Brohi has conceded that if the Court after considering the question feels satisfied that the other remedy available to the petitioner will not be equally efficacious, swift and adequate then the Court can exercise powers under Article 98 of the Constitution. Having considered the constitutional provision of sub‑Article (2) of Article 98 of the Constitution I am in agreement with the submission of Mr. Brohi that prior to issuing writ the Court must satisfy itself that no other adequate remedy is provided by law for the petitioner to seek redress of his grievance. In the present case it is found that for holding and cont rolling the election of the Chairman of Town and Union Committees and Union Councils, and also for dealing with the disputes as to the validity of election of the Chairman adequate and exhaustive rules have been framed by the Government which were published on 16th August 1965, in Dacca Gazette, Extraordinary, under Notification No. BDLG/S II/3R/7/65/104 dated 16th August 1965, known as East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules of 1965. A reference to rule 10 of the Rules will show that the provision has been made for resolving the dispute as to the validity of election of the Chairman of the Council or Committee under the Rules. Rule 10 of the said Rules is as follows:‑ "Dispute petition to Collector.‑(1) if there be any dispute as to the validity of the election of the Chairman of a Council or Committee under these rules, any member may, within thirty days from the date of election of the Chairman, file a petition before the Collector calling in question the validity of such election, stating clearly the grounds thereof and sub‑rule (2) . . . . ." Rule II provides as to how such dispute petition will be disposed of by the Collector. The said rule runs as follows: "On receipt of any petition under rule 10, the Collector shall give notice thereof to the candidates at such election and shall, after hearing the parties and taking such evidence as may be produced before him, make such orders as he thinks just and proper: Provided that the Collector may depute a Magistrate, other than the one who was in any way connected with that election, to enquire into the grounds stated in the petition and in that case the Collector need not take any evidence himself." Thereafter we get rule 12 which reads as follows:‑ "Appeal to Commissioner.‑The member who has filed a petition under sub‑rule (1) of rule 10 or any of the candidates at the disputed election may, being aggrieved by the order of the Collector under rule 11, apply to the Commissioner within 30 days from the date of the order, for the revision of such order." Then comes rule 13 which relates to the finality of order. It runs as follows:‑ "The order of the Commissioner passed in appeal and the order of the Collector if not appealed against, shall be final and shall not be questioned in any Court." In passing we may remark that although `rule 13 provides for finality of the order and limits the jurisdiction of Courts yet writ jurisdiction of the High Court under, Article 98 of the Constitution is not affected by this provision. Thus it will be found that there is adequate remedy provided by law namely; The East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules, 1965 for resolution of any dispute with regard to the election of the Chairman. We have earlier observed that Syed Ahmed Khan, a defeated candidate has already proceeded under the Rules before the Collector by filing dispute petition under rule 10 thereof which is still pending for disposal by the Collector. It cannot be said, nor it has been said that the proceedings before the Collector and the appeal before the Commissioner would take long time There being no stay order from this Court in respect of that proceeding, the Collector could have proceeded with it, but we are informed that in defence to this Court since the present application has been pending for disposal before us the Collector has not yet moved in the matter. The affidavit filed by Syed Ahmad Khan in this case leaves no doubt in our mind that he launched a pincer movement by the two different proceedings to attain his objective. In these facts and circumstances of the case we are satisfied that there is adequate remedy available under the Rules (East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules of 1965) to the petitioner and therefore the petitioner is not entitled to obtain a relief from us in the present case. In support of his first contention Mr. Brohi has referred us to a passage in Monir's Commentary on the Constitution of the Islamic Republic of Pakistan, 1965 Edition, page

383. After discussing several other relevant points in regard to writ of quo warranto the learned author says: "Thus where the law which creates the public office also provides the manner in which the appointment to it may be questioned, proceedings under the present provision will be incompetent, as the other remedy in cases within its scope would replace quo warranto." Mr. Brohi then argued if the petitioner in an application for Writ of quo warranto is a member of the Union Committee or Union Council, his rights are restricted by the rules for challenging or disputing the election of the Chairman to the forum mentioned in the rules. The position would not be same if the petitioner is an ordinary citizen and not a member of the Committee on the Council. Lastly Mr. Brohi contended that if it is conceded that there are two forms available for obtaining remedy, the seeker of it should first approach the inferior one. We agree that the rules are self‑contained and as such the petitioner In the present case who is a member of the Union Committee and has a right to challenge the election of the Chairman under rule 10, within the time prescribed for it and also a right to take an appeal to the Commissioner, is not entitled to move this Court in its Writ Jurisdiction for a Writ of quo warranto. In the result, therefore, we dismiss this application, but in the facts and circumstances of the case we leave the parties to bear their own costs. Records which will be necessary for the Collector to bear the election petition should be sent down Immediately to the Collector and he should dispose of the matter at the earliest possible time as we find that almost 2 years have elapsed from the date of the election of the Chairman whose tenure is only for 5 years. M AHMUD HOSAIN, J.‑I agree. A. H. Application dismissed.