P L D 1968 Lahore 381 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑‑

Respondent No. 1, Sarfraz Khan, was duly elected as a member of the Electoral College from Unit No. 605 of the Union Council No. 50 in Chiniot Tehsil, District Jhang. The petitioner, Khizar Hayat, has filed this petition with a prayer: "that a writ of quo warranto be kindly issued to the respondent No. 1, restraining him from acting as a member of the Electoral College from Unit No. 605."

2. The petitioner admittedly is not enrolled in the Electoral list for Unit No.

605. He was also not a candidate from the said Unit. He contested election from another unit but was defeated. His case, however, is that he is living in the same Union Council of which Electoral Unit 605 is a part, that Rahmatullah son of Muhammad Khan, respondent No. 2, who is at present the Chairman of the Union Council No. 50 is to seek re‑election and the respondent No. 1, Sarfraz Khan, is "going to vote for him." In order to establish his locus standi, he alleges that he is the, resident of the Halqa and in that capacity can file the petition. For his case that the respondent is ineligible to be elected as a member of the Electoral College, he relies on the birth entry as is recorded in the District Council Primary School, Kot Sultan, where he is shown as born on the 10th of March 1940.

3. The first question which arises is whether the petition is competent. Under Article 170 of the Constitution of 1956, High Court had the jurisdiction to issue to any person or authority writs in the nature of quo warranto. It was not provided nor was it indicated as to what was the scope of such a writ. It was, therefore, understood to mean that a High Court could issue a writ of quo warranto in all cases and circumstances where an English Court could exercise such a power. 1n Halsbury's Laws of England, Volume 11, in para graph 273, it is said that a writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined. The scope of a writ of quo warranto, however, was limited in the Constitution of 1962 and under Article 9 8 (2) (b) (ii), it is provided:‑-- "98. (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) . (b) on the application of any person, make an order‑ (i) . (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." Under Article 98 a quo warranto cannot be claimed against person who claims a franchise and it can be available only against the person who claims or usurps an office. The respondent was elected as a member of the Electoral College. A member of the Electoral College is elected from the members enrolled on the "Electoral Roll for an Electoral Unit" and he has to be "not less than 25 years of age". The electors for all electoral units in both the Provinces constitute the Electoral College of Pakistan and they are known as the members of the Electoral College. Under the Constitution, the function of the Electoral College is to elect the President under Article 165 and the members of the National Assembly under Article

168. The members of the Electoral College further Provinces of East and West Pakistan elect the members of the respective Legislatures of the Provinces. The Electoral College under the Constitution has no other function. Under clause (4) of Article 158 of the Constitution "the members of the Electoral College shall, in addition to their functions under the Constitution, have such other functions as may be conferred on them by law and, in particular, provision may be made by law for conferring on members of the Electoral College functions in relation to matters of local Government." It is provided in section 57 of the Electoral College Act that "for the purpose of conferring on the members of the Electoral College functions in relation to matters of local Government, the Provincial Government shall arrange the electoral units in the rural and urban areas into groups so that each such group is a Union or, as the case may be, a Town; and declare, by notification in the official Gazette, that the members for the electoral units within a Union or Town shall, with effect from such date after they have once performed their functions of electing a President and the members of the National and Provincial Assemblies as may be specified in the notification, constitute the Union Council or Committee for the Union or, as the case may be, the Town Committee for the Town." This petition was filed on the 11th of January 1965. At that time the powers as contemplated in section 57 had not been conferred They had only at that time constituted the members of the Electoral College. The question is whether any member of the Electoral College did hold any public office. Indeed their function only was one relating to franchise and was restricted to the election of the President or the members of the Legislatures. As members of the Electoral College they are to take oaths under Article 159 in a form which is set out in the First Schedule. The oath, they take is, only as members of the Electoral College. The learned counsel, however, tried to rely on an oath which a member of the Basic Democracies has to take under the Basic Democracies Order as is provided in its Articles 22 and 23 Admittedly the respondent was not a member of the Basic Democracies at the time when the petition was filed. He has not taken any such oath so far. The learned counsel for the petitioner states that the Governor has, by a notification, constituted the Union Councils and the respondent may have to take that oath. That oath, of course, will be in respect of an office. Since the respondent does not hold any office at the moment, a writ of quo warranto is not competent.

4. There is yet another aspect of the case. Under Article 98 (2) (b), the High Court, on the application of any person, can make an order "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." This power can be exercised by the High Court subject to the Constitution if it is satisfied that no other adequate remedy is provided by law. An application under clause (2) of Article 98 of the Constitution is, therefore, subject to the other provisions of the Constitution. It is provided in Article 171 of the Constitution that a "provision 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 Commission; 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." It is further provided that "no dispute arising in connection 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." Under Article 158 "the person enrolled on the electoral roll for an electoral unit shall, in accordance with law, from time to time elect from amongst themselves a person who is not less than twenty‑five years of age, who shall be known as the Elector for that unit." The Electors for all electoral units in both Provinces constitute udder clause (2) the Electoral College of Pakistan. The election of the Electoral College is, therefore required to be held under the Constitution. To provide for the constitution of the Electoral College of Pakistan as required by the Constitution, the Electoral College Act (Act IV of 1964) was enacted. Chapter VIII of the Act deals with the election disputes. Under section 58(2) an election petition can be made to challenge the election of a member, and it is provided in clause (1) of section 58 that no election shall be called in question except by an election petition under sub section (2). The Tribunal to decide the election petition ‑appointed under section 59 and the trial of the election petition is held under section 60 of the Act. The decision of the Tribunal on an election petition is made final under clause (3) of section

60. The Election Tribunal can determine the disputes arising in connection with the counting of the votes at an election and also decide other disputes arising in connection with such an election. In our opinion, however, the decision of the Tribunal as to the disputes relating to the count of votes will not assume finality under the Constitution for the reason that in order to give a constitutional finality to the decision on such disputes it is necessary that the provision is made by law giving the powers of such decision to the Commission or the Commissioner. Here the power of final decision about disputes as to the count has been given to the Tribunal and not to the Commission or the Commissioner. The finality of such a decision, therefore, will not be under Article 171 but under the Electoral College Act which is sub‑constitutional legislation. On the other hand, the decision of the Tribunal, in respect of all disputes other than the disputes relating to count will have the finality under the Constitution because the provision contained in Chapter III of the Act providing for the final determination of such disputes by the Tribunal is in accord with the requirement of Article 171 (1) of the Constitution. The case of the petitioner is that the respondent was not 25 years of age and as such was not qualified to contest the election. The dispute as to the age of the respondent, of course, arises in connection with the election, and can be valid ground for an election petition under section 58 of the Electoral College Act. Under clause (1) of Article 171, this dispute cannot be C decided otherwise than under such a law and the validity of such an election cannot be called in question except in accordance with such a law. The High Court under Article 98 can assume jurisdiction only subject to the Constitution. Since Article 171 of the Constitution read with section 60(1) of the Act, creates a bar for the decision of such disputes except by the Election Tribunal, the High Court cannot decide under Article 98(2) any dispute about the election. That being so, a. person who is elected under the Constitution whether as a member of the Electoral College or a member of the Legislature cannot be required by the High Court on the application of any person to show under what authority he claims to hold that office, because it is in fact a challenge of the election itself. . What is in fact alleged in such cases is that a person has not been validly elected for an inherent defect, either on account of a lack of qualification or that he was disqualified to be elected. The remedy against such a person is only by an election petition. This point can be examined from another angle also. If the High Court calls upon a person who is so elected to show under what authority of law he claims to hold that office, the respondent can refer to the provisions of the Electoral College Act and say that he was so elected. He will thus show the authority. If any person wants to go beyond it, he will have, of course, to challenge the election and an election cannot be challenged except by an election petition as is contemplated in section 60 read with Article 171 of the Constitution.

5. The petitioner cannot succeed even on merits. In order to show that the respondent was less than 25 years of age, he relied on a school certificate wherein his age was shown as less than that. The respondent had denied this allegation. The allegation is not made on an admitted fact. It calls for an elaborate inquiry. The mere entry in the school register is no proof of the date of birth of a person. The petition has no merit and is accordingly dismissed. There shall be no order as to costs. A.H. Petition dismissed.