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Writ Petition No. 646 of 1965, decided on 7th May 1965.

Arts. 98 & 171 and National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 52, 57 & 72‑Election disputes Superior Court's power to grant writs ‑Subject to other provisions of Constitution (e.g. Art. 171)‑Disputes arising in connection with election----To be determined by Tribunal established for purpose‑Exception where direct remedy by way of writ can be invoked.

A writ petition was filed in the High Court seeking decla ration that one of the respondents, a rival candidate for a seat in the Provincial Assembly of West Pakistan, should not be treated as a contesting candidate by the Returning Officer because his nomination papers were accepted by the Returning Officer in violation of the provisions of section 12 read with section 14 (3) the National and Provincial Assemblies (Elections) Act, 1964. A preliminary objection was raised that the petition was not competent in view of the provisions of Article 171 of the Consti tution of Pakistan, 1962 which creates a bar to the maintainability of such petition. It was argued that the superior Court's power to grant writs under Article 98 of the Constitution is subject to other provisions of the Constitution and that Article 171 of the Constitution was one of those provisions. It was pointed out that as regards matters pertaining to election to Provincial Assemblies a law has been framed, namely, the National and Provincial Assemblies (Elections) Act, 1964, section 52 whereof provides that no election shall be called in question except by an election petition under section 57 of the Act. It was urged 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 relief claimed in the writ jurisdiction of High Court on a matter, pertaining to election disputes, without availing the remedy of an election petition was wholly untenable. As against this the petitioner argued that the law as laid down in the National and Provincial Assemblies (Elections) Act, 1964 did not provide any remedy for the wrong committed against the petitioner. The rival candidate had been allowed to contest the election on invalid nomination papers and he could thus deprive him of the votes which otherwise could be polled by the petitioner. It was pointed out by the petitioner that section 72 of the Act which mentions the grounds on which an election may be set aside, relates only to the election of a returned candidate which the respondent at the moment was not and which he might never be. It was further pointed out that even if it were conceded that the action complained of were to fall within mischief of the provision of subsection (3) of section 72 of the Act, the petitioner may not want in his election petition, if he be forced to bring one, to have the election set aside as a whole as he may desire a declaration of his success ful return:

Held, that Article 171 of the Constitution was a complete bar to the writ petition, as the dispute canvassed in the petition related to the process of election, being one preliminary link in the whole chain of the election and as laid down in the express words employed by Article 171 it had to be decided in accordance with the law laid down for election disputes and in no other way. As was observed in Imtiaz Ahmad v. Ghulam Ali P L D 1963 S C 382: "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 and that is that 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 Courts have, therefore, avoided interfering with election disputes, although it cannot be said that the writ jurisdiction of the Court cannot at all be attracted in such cases, Actions can be called in question in writ jurisdiction, where:

(1) a right founded on statute can be established in Courts if the Special Tribunal or authority named in the statute for gad establishment of their rights does not exist;

(2) if such a Tribunal or authority neglects 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 Legislature 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

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.

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;

(iv) if there is an error on the face of the record.

Not a single circumstance had been disclosed or made out in the petition to bring the case within any of the excep tions noted and hence the petition was held not competent.

Held further, 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.

If the relevant law does not provide a remedy for the wrong which has been allegedly done to the petitioner it is not for the 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 Legislature 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.

Dost Muhammad Malik v. The Returning Officer W. P. No. 1606 of 1964 (unreported) and Imtiaz Ahmad v. Ghulam Ali P L D 1963 S C 382 ref.

S. 14(3)(d)‑Returning Officer to hold inquiry only when signature of proposer or seconder alleged to be not genuine Signature of candidate himself to be accepted on its face as appended.

M. Ismail Bhatli for Petitioner.

Respondent No. 1 in person,

Karam Elahi Chuhan for Respondent No. 2.

Dates of hearing : 5th, 6th and 7th May 1965.

.‑This is a writ petition by Mr. Ahmad Saeed Kirmani, who is a candidate for election to the Provincial Assembly of West Pakistan from Constituency No. P.W. 78 Lahore III, against a rival candidate for the same seat, Mr. Eid Muhammad, respondent No. 2, for a declaration that the latter should not be treated as a contesting candidate by the Returning Officer (respondent No. 1) because his nomination papers were accepted by him in violation of the provisions of section 12 read with section 14 (3) of the National and Provincial Assemblies (Election), Act, 1964 (hereinafter described as the Act).

2. The facts bearing on the alleged invalid acceptance of the nomination papers filed by respondent No. 2, as contended by the petitioner, may be stated: "The candidature of respondent No. 2 was sponsored by four nomination papers which were filed on the 10th of April 1965, which was the last date for the filing of the nomination papers. Each nomination paper was signed by a proposer and a seconder and also contained a declaration of assent and oath by the candidate himself (respondent No. 2) as required by subsection (3) of section 12 of the Act. Copies of these nomination papers with copies of the orders made thereon by the Returning Officer have been filed by the respondent as annexures to the written statement, marked as R 2/A. R 7/B, R 2/C and R 2/D. R 2/A, R 2/B and R 2/C were accepted by the Returning Officer but the last one, R 2/D was rejected, the reason for the rejection being that Muharram Ali, elector No. 829, who was a seconder in the nomination paper (Copy Annexure R 2/B) had already proposed the petitioner Mr. Ahmad Saeed Kirmani, on the latter's form No. 2/27. On the other nomination papers the orders made by the Returning Officer may be reproduced:‑

R 2/.A.‑"I have examined this nomination paper in accord ance with the provisions of section 14 of the Act and decide as follows Accepted."

R 2/B.‑ "I have examined this nomination paper in accordance with the provisions of section 14 of the Act and decide as follows: Mr. Bhatti, counsel for Mr. Kirmani objected that the form is not signed by the candidate, and that the candidate signed the form before proposal and as such the nomination paper is invalid. Aqa Bedar Bakht denied but further stated that the date 10‑4‑65 is the date of presentation. Objection overruled. Accepted."

R 2/C."I have examined this nomination paper in accord ance with the provisions of section 14, of the Act and decide as follows: Mr. Bhatti objected that this paper was signed by the candidate before the proposal and hence invalid. A, son of the candidate denied and stated that the papers were received yesterday. Counsel for candidate denied also the objection. Objection overruled. Nomination paper accepted."

It would appear that whereas no objection is recorded on R 2/A, the objections noted with regard to R 2/11 and R 2/C are that the candidate had signed the form before the proposal had been signed by the proposer and the seconder and, as such, it was invalid. There is also noted a further objection in form R 2/B that the form is not signed by the candidate. Before us an affidavit was filed by the petitioner which, inter alia contains a statement that the signatures on the assent and oath in the nomination papers are not in the handwriting of the respondent and his learned counsel, Mr. Ismail Bhatti, has on the factual plan argued the petition on that basis, although he reverted to the other argument also that if the signatures of respondent No. 2 on the declaration of assent and oath were made prior to the proposal of his candidature by the proposer and the seconder, his nomination is invalid as it would constitute a violation of section 12 of the Act. The objections that the signatures on the nomination papers were not those of the respondent No. 2 himself and that in the alternative these signatures were made before his nomination by the proposer and the seconder were based on the fact as stated by the petitioner in his petition that the respondent No. 2 had left Pakistan for Haj on the 23rd/24th of March 1964, and had returned to Pakistan on the 23rd of April 1964. He could not have, therefore, signed the declaration of assent and oath contained in the nomination paper on the 10th of April 1964, being himself out of the country on that date, and if at all he had signed them, he must have done so before leaving the country and the proposal in each nomination paper was signed by the proposer and the seconder thereafter.

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.

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