P L D 1966 (W (PLP)

3. It was urged on behalf of the respondent that at least one of the nomination papers of the respondent (Copy Exh. R 2/A) was accepted without any objection and that was good enough to support his valid candidature, thus rendering the decision on the other nomination papers totally ineffective. I consider that the objection taken by the petitioner was common to all the nomination papers and it may be that the objection was taken note of by the Returning Officer after he had disposed of the first nomination paper, the objection not having being taken at that stage owing to the absence of the petitioner or his counsel or for some other cause; but I am unable to accept that the objection to R 2/A was not made at all because it would have been absolutely senseless on the part of the petitioner to waive the objection in the case of one nomination paper and raise it in the case of others, thus completely destroying the practical utility of the objection itself.

4. In opposition to the present petition an attack was made by the learned counsel for respondent No. 2 by way of a preliminary objection that it is not competent in view of the provisions of Article 171 of the Constitution which creates a bar to the maintainability of the petition. The Article reads as follows:‑ 171.‑(1) Subject to clause (2) of this Article, provisions 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 to be finally determined by the Commissioner or an election Commissioner; 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 connec tion 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. . It was argued by the learned counsel for respondent No. 2 that Article 98 of the Constitution which confers on the superior Courts power to grant prerogative writs is subject to the other provisions of the Constitution and that Article 171 is one of those provisions which, inter alia lays down' that disputes arising in connection with an election have to be determined by a tribunal established for that purpose and that such a dispute cannot be called in question except in accordance with law to be frameo, as ordained in this Article. It is pointed out that a law has been framed in this connection, viz., the National and Provincial Assemblies (Elections) Act, 1964. Chapter VI of which deals with election disputes and section 52 whereof provides that no election shall be called in question except by an election petition under section 57, which in turn lays down that any candidate may make an election petition, challenging an election for which he was a candidate on one or more of the grounds mentioned in section

72. It was submitted' by the learned counsel for the respondent that the right to contest or dispute an election is the creation of a statute and not being an ordinary civil right or a common law right it has to be enforced within the limits of the law that has created it. Election petition being the remedy provided in that law before an election Tribunal it must be availed of and that the relief claimed in the writ jurisdiction of this Court on a matter pertaining to election dispute, without availing the remedy of an election petition, is wholly untenable. The matter raised has been considered lately by a Full Bench of this Court in Writ Petition No. 1606 of 1964 (Dost Muhammad Malik v. The Returning Officer, and the conclusions reached were as follows: --‑ "(1) A right founded on statute can be established in Court if the Special Tribunal or authority named in the statute for establishment of their rights does not exist; (2) if such a Tribunal or authority neglect to exercise its functions or acts improperly in the exercise of its functions a High Court can grant relief under clauses (a) and (b) of Article 98(2) of the Constitution; and (3) in the matter of elections to Legislatures and other 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." In paragraph 6 of the Full Bench judgment certain exceptions were noted where a writ of certiorari may be invoked from the superior Courts without first making use of the machinery set up by the law which has created the right and for the protection of which it has become necessary to seek a remedy. It was remarked that a writ of certiorari may be issued‑ (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 ; or (iii) if 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 Supreme Court case, Imtiaz Ahmad v. Ghulam Ali (P L D 1963 S C 382), referred to above, dealt with an election case. It was observed by the majority judgment delivered by Fazle‑Akbar, J., Mr. Justice Cornelius, C. J., concurring, as follows:‑ "Ordinarily, the Court in exercise of its writ jurisdiction declines to interfere in cases of the election because it is desi rable 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 speedly 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 of fact, which cannot be properly decided in the writ jurisdiction. If it was to do so, it would enter into a field of investigation which is more appropriate for a Tribunal rather than for a Court exercising the prerogative of issuing writ. The Court has, therefore, avoided interfering with the election disputes, although it cannot be said that the writ jurisdiction of the Court cannot at all be attracted in such cases. For instance, where actions are characterised as being done in bad faith, the exercise of public power may thus be called in question." In the dissenting judgment his Lordship Kaikaus, J. held that it was a case for issue of a writ of mandamus in favour of the petitioner for the restoration of his office as a member of the Union Council with a direction that the election to the Chairman of the Council be held afresh because it has taken place without admitting the petitioner as a member with a right to participate in that election, and this finding was based, on his Lordship's view of the conduct of the presiding officer as one of a "bad faith."

5. I consider that Article 171 of the Constitution is a complete bar to the present writ petition, as the dispute canvassed in the petition relates to the process of election, being one preli minary link in the whole chain of the election and as laid down in the express words employed by Article 171 it has to be decided in accordance with the law that is laid down for election disputes and not in any other manner. Not a single circumstance has been disclosed or made out to bring the case within any oil the exceptions noted in the Full Bench judgment of this Court, noticed above, for the invocation of a direct remedy in the writ jurisdiction of this Court in departure and in derogation of the specific remedy for the protection of the alleged breach of the petitioner's rights in the election contest, of which allegedly a breach has taken place.

6. The learned counsel for the petitioner, however, strenu ously argued that the law as laid down in the Act does not provide any remedy for the wrong committed against the peti tioner which is that respondent No. 2 has been allowed to contest the election on invalid nomination papers and he might thus deprive him of the votes which could otherwise be polled by the petitioner if respondent No. 2 is eliminated from the field. He has pointed out that section 72 of the Act, which is exhaustive of the grounds on which an election may be set aside, relates only to the election of a returned candidate which the respondent No. 2 at the moment is not and which he may never be. The only case where the Tribunal may declare the election as a whole to be void is provided is subsection (3) of the same section, where it can do so if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with the provisions of the Constitution or the Act and the Rules. It was pointed out by the learned counsel for the petitioner that even if it were conceded that the action of the Returning Officer or of respondent No. 2 or his proposer and seconder were to fall within the mischief of this provision, the petitioner may not want in his election petition, if he is forced to bring one, to have the election set aside as a whole, as he may desire a declaration of his successful return. I consider that what the law seeks to ensure is the fair conduct of elections according to the law and the rules and where an election may be attacked by an election petition on the ground of violation of the Constitution, the Law and the rules, the Tribunal has to determine (a) if violation has taken place and (b) the effect of the violation on the election irrespective of the general or the limited relief that may be granted to the petitioner in the election petition in the final result. I have referred to this provision only to meet the argument of the learned counsel for the petitioner that he will be left without a remedy if he is denied the relief in writ jurisdiction of this Court. But if, as maintained by the learned counsel, the relevant law does not provide a remedy for the wrong which has been allegedly done to him, it is not for D this Court to create a remedy for him as the matter has to be decided entirely on the law bearing on the subject, as envisaged by Article 171 of the Constitution. The Lagislature in its wisdom may not have considered a wrong of the type as alleged by the petitioner to be one for which a remedy need be provided by way of an election petition or otherwise. There are instances in several laws where the decisions by an authority are made final, not subject to any, appeal or review by the higher Courts and unless it is shown that such an order by the authority concerned suffers from a defect of jurisdiction or is mala fide in character, it is not amenable to challenge even in writ jurisdiction of the superior Courts.

7. It was strenuously contended by the learned counsel for the petitioner that the Returning Officer did not hold any inquiry into the objections urged by the, petitioner for the rejection of the nomination papers of respondent No. 2 and he has thus acted in an illegal and arbitrary manner. We have been referred to section 14 of the Act, subsection (3) of which states the grounds and conditions under which the Returning Officer may reject a nomination paper. This provision reads as follows:‑ "The Returning Officer may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and reject any nomination paper if he is satisfied that‑‑‑ (a) the candidate is not qualified to fill the seat for which he has been nominated; (b) the proposer or the seconder Is not qualified to subscribe to the nomination paper;. (c) any provision of section 12 or section 13 has not been complied with; or (d) the signature of the proposer or the seconder is not genuine; Provided that‑ (i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid .nomination paper; (ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forth with ............... It is significant to note hers in reference to the objection urged before us that the signatures of respondent No. 2 on the accepted nomination papers are bogus, being not those of respondent No. 2; that whereas the provision allows the holding of a summary inquiry as the Returning Officer may think fit on the allegation that the signature of the proposer or the seconder is not genuine, there is no such requirement in the case of sig natures of the candidate himself. The distinction is not without significance. It seems that the Legislature has intended that the signatures of the candidate himself must be accepted on its face value as it is appended to a declaration of assent and oath on solemn affirmation by the candidate as required by subsection (3 of section 12 of the Act, clauses (a) and (b), which if untrue have to be made by the candidate at his own risk. This leads me to the conclusion that the Returning Officer was not at all required under the law to hold an inquiry of any kind into the allegations regarding the forgery committed in respect of the signatures of respondent No, 2 on the declaration of assent and oath purport edly signed by him. As for the objection regarding the time and the order In which respondent No. 2 appended his signatures, whether before or after the proposal had been signed by the proposer and the seconder, I do not consider that it merited any consideration at all, as the sequence in which these signatures are made does not, in my view, involve a violation of the rule contained in section 12 of the Act and, at any rate, even if the allegations of the petitioner in this context were to be accepted as correct it was not a defect of a nature which could not be condoned by the Returning Officer under section 14 (3) (d) (ii) of the Act. In result, I am constrained to dismiss this petition, but in the circumstances of the case I leave the parties to bear their own costs. MUHAMMAD GUL, J.‑I agree. K. B. A. Petition dismissed.