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Civil Appeals Nos. K‑9 and K‑10 of 1967, decided on 16th October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 27th June 1966, in Petition No. 48 of 1966).

, r. 5(3) and Constitution of Pakistan (1962), Art. 98 Election‑Voters putting cross marks on ballot papers not precisely on dotted line against which name of candidate appeared but in between respective dotted lines bearing names of rival candidates -Presiding officer rejecting ballot papers on ground that they did not adequately disclose intention of voters‑Voter psychologically more likely to use space above line for his candidate than below it and there being no requirement under rulr5 (3) to put cross mark precisely on dotted line‑Held, possibility of doubt or dispute as to person in whose favour marks had been put being out of question, action of Presiding Officer was wholly arbitrary, not inspired by any sense of duty to do justice between rival candidates and such exercise of power was mere colourable exercise of power or even abuse of power.

The High Court, in the instant case, had held that the reasons given by the Presiding Officer for his action were wholly irrelevant, for, all that sub‑rule (3) of rule 5 of the Election of Chairman Rules provided was that a cross mark should be placed against the name of the candidate for whom the voter wishes to vote. This sub‑rule did not make any reference to any space or require that the cross should be precisely on the dotted lines. All that it required was that the cross should be "against the name of the candidate." 1f the dross was, therefore, put in the space between tile names of the two candidates it was clearly against the name of the candi date whose name appeared on the lower dotted line. The High Court was also satisfied after looking at the invalidated ballot papers that "a voter is psychologically more likely to use the space that is above the line for his candidate than below it" and, therefore, the cross marks on the ballot‑papers in question left no room for doubt that the intention of the voter was to cast his vote in favour of the petitioner.

The Supreme Court examined those ballot‑papers and had no hesitation in saying that the remarks made by the High Court were fully justified. There was no possibility of any doubt or dispute as to the person in whose favour the marks had been made on the said ballot‑papers. In the circumstances, the action of the Presiding Officer in declaring those ballot‑papers invalid was held to be wholly arbitrary and not inspired by any sense of duty which he had to perform, i.e. to do justice between the rival candidates. Such an arbitrary exercise of power may well be said to be a mere, colourable exercise of power or even an abuse of power.

Art. 98‑Election Courts in exercise of writ jurisdiction ordinarily to decline to interfere in election cases‑Relief in nature of writ‑A supple mentary remedy, supplying want of and not superseding legal remedy‑Exercise of writ jurisdiction to be refused only when other remedy is "competent to afford relief upon the very subject matter of the application" and is "equally convenient, beneficial and effective".

Ordinarily the Court in exercise of its writ jurisdiction would decline to interfere in cases of election, because, it is desirable that the decision on a matter of disputed elections should as soon as possible become final and conclusive. But this is not the only reason. Another valid reason for so declining to interfere is because by so doing it would involve itself into a field of investigation which is more appropriate for a tribunal rather than for a Court exercising the prerogative power. The fact, therefore, that an alternative remedy is provided by law should not only upon the above principles but upon general principles too disincline a Court to invoke its extraordinary jurisdiction in a case where such a remedy is still available.

Though Article 98 of the Constitution has been couched in very wide terms it may safely be assumed that it incorporates within it orders or directions in the nature of those which could have been issued under the prerogative writs of mandamus, pro hibition and certiorari. So far as these writs are concerned the principle is undoubtedly universally accepted that it would not be in the exercise of sound judicial discretion to interfere where there is another "adequate and specific legal remedy competent to afford relief upon the same subject‑matter." A relief of this nature is a supplementary remedy which does not supersede legal remedies but rather supplies the want of such a remedy. But it is not any and every kind of remedy which will defeat this constitutional right. In order that the other remedy should be sufficient to warrant refusal to exercise this jurisdic tion it is necessary, that the other remedy must be "both specific and adequate" in the sense that it must be "competent to afford relief upon the very subject‑matter of the application and be equally convenient, beneficial and effective."

Imtiaz Ali v. Ghulam Ali and others P L D 1963 S C 382 ; Badrul Haq Khan v. The Election Tribunal, Dacca and others P L D 1963 S C 704; Dost Muhammad Malik v. The Returning Officer and another P L D 1965 Lah. 560; Wolverhampton New Water‑Works Co. v. Hawkesford (1859) 6 C B (N S) 336 and Eerris on Extraordinary Legal Remedies, p. 247 ref.

Writ- Mandamus‑Election‑Defeated candidate not seeking in Writ Petition to declare election void but merely seeking enforce ment of duty cast on Presiding Officer (declaration of candidate obtaining highest number of votes as elected)‑Enforcement of such duty available by writ independently instead of by election petition‑Duty to declare result of election‑A ministerial duty‑Can be enforced by mandamus‑West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, rr. 5 (5) & 7.

Ferris on Extraordinary Legal Remedies, p. 391 ref.

Art. 98‑Election Disputed questions of fact‑Not to be gone into in writ proceedings‑Writ to issue only where record itself shows that authority concerned failed to discharge his duty.

If the officer concerned has failed to discharge a mandatory duty imposed upon him by law he can certainly be compelled to do that which the law required him to do. This is not the same thing as contesting the validity of an election or challenging the election of a declared candidate. In a proceeding of this nature disputed questions of fact will not, of course, be gone into and it is only where it is shown upon the face of the record itself that the officer or the authority concerned has failed to discharge his duty that a direction of the nature contemplated by Article 98 will issue.

Writ-- Mandamus‑Does not lie where duty of officer is purely discre tionary‑Discretion, however, to be exercised reasonably, honestly, and not arbitrarily or capriciously or in bad faith.

Akbar Ali v. Raziur Rahman P L D 1966 S C 492 and Ferris on Extraordinary Legal Remedies, p. 241 ref.

r. 7 [as substituted by West Pakistan Government Notification No. BDI/6‑4/60 dated 20th February 1966]‑Merely enlarges scope of reliefs claimable in election petitions and as such retrospective in effect.

Akhtar Ahmad Kazi, Additional Advocate‑General West Pakistan (Rustam J. E. Kaikabad, Advocate Supreme Court with him) instructed by Shafiq Ahmad, Senior Attorney for Appellant.

A. S. Pirzada, Semor Advocate Supreme Court (A. H. Pirzada, J Advocate Supreme Court with him) instructed by A. H. Mernon, Attorney for Respondent No. 1.

N. A. Faroorqui, Advocate Supreme Court instructed by K. A. Ghani, Attorney for Respondent No. 2.

N. A. Farooqui, Advocate Supreme Court instructed by K. A. Ghani, Attorney for Appellant.

Abdus Sattar Pirzada, Senior Advocate Supreme Court (A. H. Pirzada, Advocate Supreme Court with him) instructed by A. H. Memon, Attorney for Respondent No. 1.

Kazi Akhtar Ahmad, Additional Advocate‑General West Pakistan (J. E. Kaikabad, Advocate Supreme Court with him) instructed by Shafiq Ahmad, Senior Attorney for Respondent No. 2.

Date of hearing : 30th May 1967.

.‑These two appeals arise out of the ‑same judgment of the High Court of West Pakistan, Karachi Bench, in a petition under Article 98 of the Constitution filed by the first respondent herein on the 20th of January 1966, to have the declaration of the result of an election made by the appellant in Civil Appeal No. K‑9 of 1967 declared as made without lawful authority and for directions upon him to declare the said respondent elected.

The election in respect of which the dispute arose was in respect of the chairmanship of Union Committee No. 4, Hyderabad City. The respondents Nos. 1 and 2 in Civil Appeal No. K‑9 of 1967 were the rival candidates at this election which was held on the 18th of January 1966. Altogether 16 ballot‑papers were issued but only 15 were cast. One ballot‑paper was found missing at the count. Out of these 15 the appellant in Civil Appeal No. K‑9; who was the Presiding Officer at this election, rejected 4 on the ground that they did not adequately disclose the intention of the voters. The result after this was that 7 valid votes were found to have been cast in favour of the respondent Lal Muhammad Bin Yousaf and 4 in favour of respondent Sadruddin Ansari. The former was consequently declared elected ac Chairman.

The precise defect, for which the said 4 ballot‑papers were declared invalid, was that the cross marks on them were not put precisely on the dotted line on which the name of the candidate was written but were located somewhere in between the respec tive dotted lines on which the names of the rival candidates were written.

It was to challenge this declaration that the petition under Article 98 was filed on the ground that the ballot‑papers had been arbitrarily and capriciously declared to be invalid and since these ballot papers were manifestly cast in favour of the respondent No. 1 it is he who should have been declared elected and not the respondent No. 2.

This petition came up for admission on the 26th of January 1966, but the High Court without admitting it called for a report from the Presiding Officer. The matter then came up on the 11th of February 1966, along with the report but it was again adjourned at the request of the counsel appearing to support the petition to enable him to consider certain legal objections raised by the Court itself as to the maintainability of the petition. It came up for hearing again on the 15th of February 1966, when the petition was after perusal of the report admitted to regular hearing and notices were directed to be issued to the respondents as well as the Additional Advocate‑General.

Two days before this date, namely, the 12th of February 1966, the said respondent No. 1 had, out of abundant caution, also filed an election petition but did not disclose this fact to the Court when it admitted the constitutional petition on the 15th of February 1966.

The election concerned was held under the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. It may be useful, therefore, to quote the relevant rules at this stage. Rule 5, which relates to the vote, provides as follows:‑---

"5. Poll.‑(1) Votes for the office of the Chairman shall be given by ballot.

(2) The Presiding Officer shall provide a ballot‑box which shall be shown empty to the members, and thereafter nailed or locked, and placed in a separate compartment.

(3) The Presiding Officer shall issue to each member of the Basic Democracies a ballot in the form appended to these rules. Each member shall after taking the ballot proceed to the compartment where the ballot‑box is kept; make a cross on the ballot‑paper against the name of the candidate for whom he wishes to vote and thereafter drop the ballot in the ballot‑box. If a member cannot read or write, he may request the Presiding Officer to assist him in the marking of the ballot paper.

(4) When the ballots have been cast, the Presiding Officer shall open the ballot‑box in the presence of the members, and count the votes cast in favour of each candidate. If there is any doubt or dispute about the marking of a ballot‑paper, the Presiding Officer may decide the issue after holding such summary enquiry on the spot as may be necessary.

(5) The candidate obtaining the highest number of votes shall be declared by the Presiding Officer to have been elected as the Chairman. If for the purposes of the declaration of the result there is a tie between two or more candidates who have obtained an equal number of votes, the result shall be declared by the Presiding Officer by drawing lots."

Rule 7, as it then stood, read as follows:‑

"7. Election Petition.‑(I) No election of a Chairman shall be called in question except by a petition presented to the Controlling Authority within thirty days of the declaration of the result.

(2) The Controlling Authority may after such enquiry as may be necessary, uphold the election of the Chairman, or declare the election as void for any material irregularity, or any suffici ent reason to be recorded.

(3) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules."

It will be observed from the above that under sub‑rule (4) of rule 5 a duty is cast on the Presiding Officer to count the votes immediately after the close of the poll in the presence of the members, but he is given only the right to decide, after such summary enquiry on the spot as may be necessary, "any doubt or dispute about the marking of a ballot‑paper." Then sub- rule (5) casts a duty upon the Presiding Officer to declare the person, in whose favour the highest number of votes are cast, to have been elected.

Again, up to this stage under rule 7 the only jurisdiction that the Controlling Authority had in an election petition was to declare an election to be void and to order a fresh election according to the rules.

During the pendency of the petition in the High Court, however, rule 7 was entirely substituted by a new rule 7 by the Governor of West Pakistan by his notification No. BDI/6‑4/60, published in the Gazette of West Pakistan on the 26th of February 1966. The new rule 7 reads as follows:‑‑

"7. Election Petition.‑(1) No election of a Chairman shall be called in question except by an election petition presented to the Controlling Authority or such other officer as Government may appoint in this behalf within ninety days of the declaration of the result.

(2) The election petition under sub‑rule (1) may be presented by any member of the Basic Democracy, and in the election petition, the petitioner may claim any of the following declarations‑---

(a) that the election of the returned candidate is void, or

(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected, or

(c) that the election as a whole is void.

(3) The Controlling Authority, or the officer appointed by Government under sub‑rule (1), as the case may be, may, after such enquiry as it or he may consider necessary, uphold the election, or award any declaration prayed for under sub‑rule (2), for any material irregularity, or any other sufficient reason to be recorded.

For the purposes of this rule 'material irregu larity' means any non‑compliance with the provisions of the Order, or these rules which materially affects the result of an election.

(4) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules."

Under the substituted rule the period of limitation for filing an election petition was first extended from 30 to 90 days. Secondly not only a candidate but also any member of the Basic Democracy was given the right to present such a petition, and thirdly the reliefs that could be prayed for in this petition were enlarged. The power of the Controlling Authority was no longer confined to merely declaring the election to be void, for, he was then empowered not only to declare the election as a whole to be void but also to declare the election of a returned candidate to be void and in such event to declare that the petitioner before him or some other person has been duly elected.

The reliefs claimed in the petition under Article 98 of the Constitution were as follows:‑

"13. The petitioner, therefore, prays that this Honourable Court be pleased to:

(a) declare that Annexures A' and 'B' declaring the respondent No. 2 to be elected Chairman is without lawful authority and of no legal effect and that the petitioner has secured the majority of the lawful votes.

(b) direct the respondent No. 1 to declare the petitioner to be the elected Chairman of Union Committee 4, Hyderabad.

(c) award special costs."

None of these reliefs, it will be observed, could have been obtained under rule 7, as it stood before the 26th of February 1966, but under the substituted rule 7 the second relief could have been obtained after getting the election of the respondent No. 2 declared void.

The respondent No. 1, nevertheless, pressed his petition before the High Court without filing any fresh election petition or seeking to amend the election petition already filed by him on the 12th of February 1966, although, it is contended, he could have done so even after the new rule was notified on the 26th of February 1966, for, the period of limitation thereby fixed had not yet expired.

The petition under Article 98 came up for final hearing before the High Court on various dates between 1‑3‑66 and 2‑6‑66 and was heard at considerable length upon elaborate arguments advanced from both sides.

It was strenuously argued on behalf of the present appellant by the learned Additional Advocate‑General that the petition was not maintainable, as at any rate after the introduction of the new rule 7 an adequate alternative remedy had clearly been provided. The High Court, however, repelled this contention as, in its view, the new rule 7 could not be given retrospective effect so as to apply to the election in dispute which had become a past and closed transaction before the new rule was framed.

The possibility of the respondent No. 1 being successful in amending the election petition already filed on the 12th of February 1966, or of maintaining a fresh election petition was also considered to be doubtful, because, the relief which he might seek either in the amended petition or in the fresh petition would be inconsistent with the relief that he had already asked for in his earlier petition, namely, the holding of afresh election.

In this view of the matter the High Court thought that the respondent No. 1 had "neither a satisfactory right to amend the pending election petition nor to file a new one."

As regards the merits of the action of the Presiding Officer in declaring 4 of the ballot‑papers cast in favour of the said respondent invalid the High Court held that the reasons given by the Presiding Officer for his action were wholly irrelevant, for, all that sub‑rule (3) of rule 5 of the Election of Chairman Rules provided was that a cross mark should be placed against the name of the candidate for whom the voter wishes to vote. This sub‑rule did not make any reference to any space or require that the cross should be precisely on the dotted lines. All that it required was that the cross should be "against the name of the candidate." If the cross was, therefore, put in the space between the names of the two candidates it was clearly against the name of the candidate whose name appeared on the lower dotted line. The High Court was also satisfied after looking at the invalidated ballot‑papers that "a voter is psychologically more likely to use the space that is above the line for his candidate than below it" and, therefore, the cross marks on the ballot‑papers in question left no room for doubt that the intention of the voter was to cast his vote in favour of the respondent No. 1. In the circumstances the reasoning employed by the Presiding Officer and by the Additional Advocate‑General, who suggested that the person in whose favour the vote has been cast would have to be ascertained by measuring the distance of the cross mark from the lines on which the names are written, were considered by the High Court to be not only "factually misconceived" but also "without foundation and wanton." Upon this conclusion the High Court held that the action of the Presiding Officer was amenable to correction under Article 98 of the Constitution, declared his action to be without lawful authority and directed him to declare the result of the election in terms of sub‑rule (5) of rule 5 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, consistently with the views expressed by it.

Against this decision both the Presiding Officer and the other rival candidate applied for leave to appeal to this Court. Leave was granted to both of them to consider (i) whether the petition under Article 98 was maintainable after the respondent No. 1 had actually filed an election petition before the disposal of his petition under Article 98 and (ii) whether after the new rule 7 of the above Rules was substituted it was still open to the said respondent either to amend the election petition already filed by him or to file a fresh election petition.

The learned Additional Advocate‑General appearing in support of the appeal has contended that tote jurisdiction under Article 98 of the Constitution can only be exercised if no other adequate remedy is available to the person seeking relief under that Article. According to him, where a statute or a statutory rule having the force of a statute, as in this case, creates a right, provides a special forum and a special procedure for the enforce ment of that right, as has been done by the Basic Democracies (Election of Chairman) Rules, 1960, it is not only incumbent upon the person seeking relief to approach the special forum and follow the special procedure provided but normally the High Court also should not, acting under Article 98, interfere until the special remedy available has been invoked and exhausted, for, it is not the purpose of Article 98 to defeat an existing jurisdiction. In support of this contention the learned Additional Advocate General has relied upon two decisions of this Court in the cases of Imtiaz Ali v. Ghulnn Eli and others (P L D 1963 S C 382) and, Badrul Haq Khan v. The Election Tribunal, Dacca, and others (P L D 1963 S C 704) and a Full Bench decision of the West Pakistan High Court in the case of Dost Muhammad Malik v. The Returning Officer and another (P L D 1965 Lah. 560). In all these cases it was, no doubt, held that ordinarily the Court in exercise of its writ jurisdiction would decline to interfere in cases of election; because, it is desirable that the decision on a matter of disputed elections should as soon as possible become final and conclusive. But this is not the only reason. Another valid reason for so declining to interfere is because by so doing it would a involve itself into a field of investigation which is more appropri ate, for a tribunal rather than for a Court exercising the prerogative power. The fact; therefore, that an alternative remedy is provided by law should not only upon the above principles but upon general principles too disincline a Court to invoke its extraordinary jurisdiction in a case where such a remedy is still available.

Our Constitution embodies in Article 98 the general rule that an extraordinary remedy of the nature therein contemplated should not be granted unless the Court "is satisfied that no other adequate remedy is provided by law." But this is not the same thing as saying that the existence of any alternative mode of seeking some other kind of remedy is by itself sufficient. This is not a case of a competition between a common law right and a statutory right to which the principle enunciated by Willes J. in the case of Wolverhampton New Water‑Works Co. v. Hawkes ford ((1859) 6 C B (N S) 336) can be made applicable. Article 98 confers a constitutional right to a particular kind of remedy, namely, to obtain a direction upon a persona performing functions in connection with the affairs of the State 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. Though this Article has been couched in very wide terms it may safely be assumed that it incorporates within it orders or directions in the nature of those which could have been issued under the prerogative writs of mandamus, Prohibition and certiorari. So far as these writs are concerned the principle is undoubtedly universally accepted that it would not be in the exercise of sound judicial discretion to interfere where there is another "adequate and specific legal remedy competent to afford relief upon the same subject‑matter". It has often been said that a relief of this nature is a supplementary remedy which does not supersede legal remedies but rather supplies the want of such a remedy. But it is not any and every kind of remedy which will defeat this constitutional right. In order that the other remedy should be sufficient to warrant refusal to exercise this jurisdiction it is necessary, as observed by Ferris in his book on Extraordinary Legal Remedies (page 247), that the other remedy must be "both specific and adequate" in the sense that it must be "competent to afford relief upon the very subject‑matter of the application and be equally convenient, beneficial and effective."

Applying this test in the present case, it is clear that on the date that the petition under Article 98 was filed none of the remedies sought in the petition could have been made available to the petitioner therein by any other remedy. An election petition was then only maintainable under the old rule 7 for having an election declared void. Thus, at any rate, up to the date on which the petition under Article 98 was admitted for regular hearing there was no bar to its maintainability, for, there was no other specific or adequate remedy available which would have given relief to the respondent No. 1 upon the subject‑matter of his application in an equally convenient, beneficial or effective manner.

The question now is whether this position was altered after the introduction of the substituted rule 7 by the notification of the 26th of February 1966. It will be observed that even under the substituted rule a declaration simpliciter that a person has been duly elected is not possible unless he or some other member has first obtained an order to the effect that the election of a returned candidate is void. In the present case, the respondent No. 1 did not, by his petition under Article 98, seek to have any election declared void but merely desired to have the duty cast upon the Presiding Officer, under sub‑rule (5) of rule 5, enforced by the direction of the High Court after having the illegal declaration set aside or quashed.

This was clearly a duty cast upon the Presiding Officer by this D rule and I for my part am unable to see why this duty could not be got enforced by a writ independently instead of filing an election petition and getting relief indirectly after taking upon himself the additional burden of having the election of the returned candidate declared void. It is well recognised that the duty to declare the result is a ministerial duty which can be enforced by mandamus. Thus Ferris in his book on Extra ordinary Legal Remedies observes at page 391, that "the rule is that it is the bounden duty of a board of canvassers to ascertain, if possible, the highest vote cast for any candidate, as appears on the face of the returns, and to declare such candidate elected, without regard to discrepancies, irregularities or other considera tions not essential to determine for whom the votes were cast." So where an officer clearly charged with the duty to declare a person, obtaining the highest number of votes at an election, elected refuses or neglects to do so upon mala fide or upon wholly irrelevant considerations or in a wanton, arbitrary or fanciful manner then I see no reason why the aggrieved party cannot seek this expeditious remedy under Article 98 of the Constitution to compel the officer concerned to declare him elected without having to resort to an election petition.

If the officer concerned has failed to discharge a mandatory duty imposed upon him by law he can certainly be compelled to do that which the law required him to do. This is not the same thing as contesting the validity of an election or challenging the election of a declared candidate. In a proceeding of this nature disputed questions of fact will not, of course, be gone into and it is only where it is shown upon the face of the record itself that the officer or the authority concerned has failed to discharge his duty that a direction of the nature contemplated by Article 981 will issue.

In the present case, it is further claimed that since sub‑rule (5) of rule 5 also vested a discretion in the Presiding Officer to resolve the doubt or dispute about the marking of a ballot‑paper the exercise of such a discretion should not have been interfered, with. It is true that a mandamas does not lie where a duty is purely discretionary but from this it does not follow that a party upon whom the duty rests can exercise his discretion in any and every manner. The mere fact that there is an element of discretion in the duty to be discharged is not by itself sufficient to exclude relief by way of mandamus, for, even a discretion must be exercised reasonably and honestly and not arbitrarily or capriciously or in bad faith.

It is well settled, as observed by Ferris in his book on Extraordinary Legal Remedies at page 241, that "mandamus will issue to correct an abuse of discretion if the cause is otherwise proper." The question, therefore, is whether the action of the Presiding Officer in the instant case fell within this category. The High Court has held that he acted "wanton4y" upon "irrelevant" considerations and "without foundation" in declaring the 4 disputed ballot‑papers cast in favour of the respondent No. 1 invalid and, therefore, the case fell within the. scope of the principles enunciated by this Court in Akbar Ali v. Raziur Rahman (P L D 1966 S C 492).

I have myself examined those ballot‑papers and I have no hesitation in saying that the remarks made by the High Court were fully justified. There was no possibility of any doubt or dispute as to the person in whose favour the marks had been made on the said ballot‑papers. In the circumstances, the action of the Presiding Officer in declaring those ballot‑papers invalid was, in my opinion, wholly arbitrary and not inspired by any sense of duty which he had to perform, i.e. to do justice between the rival candidates. Such an arbitrary exercise of power may well be said to be a mere colourable exercise of power or even an abuse of power. Not only was, therefore, in my opinion, the petition under Article 98 of the Constitution maintainable but sufficient grounds also existed for the issuance of the direction that was made by the High Court.

This by itself is sufficient to dispose of these appeals but since another question has been raised and argued at some length, namely, as to, whether the substituted rule 7 was merely a procedural amendment which could take effect retrospectively or whether, as held by the High Court, the substituted rule 7 could not so take effect, I would, for the sake of completeness, like to add that in my view since the new rule 7 only enlarged the scope of the reliefs that could be claimed in an election petition it was a matter relating to procedure and would, therefore, take effect retrospectively. The doctrine of past and closed transactions was hardly applicable in the facts of this case, for, the election was itself under challenge before the Controlling Authority and he could have granted anyone of the new reliefs. The new remedy did not alter the nature of the claim or take away any vested, right, for, there could be no vested right in a state of the law which left the injured party without, or with only, a defective remedy.

It now remains only to mention that the learned counsel appearing for the appellant in Civil Appeal No. K‑10 of 1967 has contented himself merely by adopting the arguments of the learned Additional Advocate‑General. But in the view that I have taken I would have no hesitation in holding that both these appeals must fail and would accordingly dismiss them both but would make no order as to costs.

I agree.

.‑I agree.

‑I agree.

I agree,

S. A. H.

Appeals dismissed.

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