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Petition No. 492 of 1965, decided on 1st May 1967.

‑"Other adequate remedy"‑[Election of Chairman of Union Committee]‑Held, the other adequate remedy was available under rr. 10, 11, 12, 13, East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules, 1965 ‑ Rules, self‑contained [Application under Art. 98 instituted by a member of Committee; an application by defeated candidate, in fact, was already pending under r. 10 before Collector]‑Application for writ dismissed-- Position would not be same if applicant under Art. 98 was an ordinary citizen and not a member of Committee or Council --Finality of order, in dispute petition under the Rules, leaves High Court's jurisdiction under Art. 98 unaffected.

Held, 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 there was 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.

A defeated candidate had in fact already proceeded under the Rules before the Collector by filing dispute petition under rule 10 thereof which was still pending for disposal by the Collector. It cannot be said, nor had it been said that the proceedings before the Collector and the appeal before the Commissioner would take long time.

Therefore the petitioner who was a member of the Committee was not entitled to obtain a relief from the High Court under Art. 98, Constitution of Pakistan (1962).

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.

The rules are self‑contained and as such the petitioner in the present case who had 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, was not entitled to move the High Court in its writ jurisdiction for a writ of quo warranto. In the result, therefore, the application under Article 98 was dismissed.

The position, however, would not be same if the petitioner is an ordinary citizen and not a member of the committee or the council.

Farid Ahmad with M. Narullah for Petitioner.

T. H. Khan G. P. with Razzaq Rahman for Respondents Nos. 1 and 2.

A. K: Brohi with Siddique Ahmed Chowdhury, Kamal Hussain, A. K. M. Shafiqur Rahman and K. S. Nahi for Respondent No. 3.

Dates of hearing: 2nd, 3rd, 4th March, 5th, 10th, 13th and 28th April 1967.

.‑This is an application under Article 98 of the Constitution by one Dakhina Ranjan Barua, who is a member of Chowkbazar Union (II) Committee, Chittagong for a declara tion that respondent No. 3 has been illegally elected as Chairman of the Chowkbazar Union (II) Committee, Chittagong and that his election as such Chairman is void and is of no legal effect. After he prayed for a Rule upon the respondent No. 3 to show cause under what authority of law he claims to hold public office namely the chairmanship of Chowkbazar Union Committee, Police Station Kotwali, District Chittagong, he also prayed for an injunction restraining the respondent No. 3 from functioning as such Chairman and for a direction upon the respondents Nos. 1 and 2, namely, Sub‑Divisional Officer, Sadar North, Chittagong and M. Rahman, Assistant Registrar, Co‑operative Societies, Chittagong to hold a fresh meeting of the members of the Chowkbazar Union Committee for the election of its Chairman. The petitioner obtained a Rule nisi on 6th of September 1965, from this Court in terms of prayers A and B of his petition, but the Court did not grant any order of injunction fn favour of the petitioner.

When the Rule came up for hearing on 16‑2‑1967 the Bench which normally hears Writ Application could not take it up as one of the learned Judges of the said Bench felt embarrassed to hear the matter. Thereafter this matter was sent to this Bench by the learned Chief Justice for its disposal.

During the hearing of this application by us we called upon the Advocate‑General to assist the Court in view of the fact that the Government in this case was not properly represented and also in view of the fact that certain complicated questions arose for decision on account of the person who contested the respondent No. 3 in the election for the office of Chairman of the said Union Committee was not made party to this applica tion and also that the said defeated one Syed Ahmed Khan has filed an application challenging the validity of the election of respondent No. 3 before the Collector of Chittagong under Rule 10 of the East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules, 1965 published in the Dacca Gazette, Extraordinary, on 16th August 1965. There after the petitioner made an application for addition of said Syed Ahmed Khan as a party to this petition and a rule was issued on the said Syed Ahmed Khan by this Court on the 13th of March 1967, to show cause as to why he should not be added as a party respondent to this petition After the said Syed Ahmed Khan appeared in response to the said rule served on him the matter was set down for hearing on 28‑4‑1967. On that date Mr. A. K. Brohi appeared for respondent No. 3 to oppose the petition.

Allegations made by the petitioner in his petition dated 6th of September 1965, in short are that after publication of Notifica tion No. S‑X/IE‑42/65/433, dated 16‑8‑1965, declaring the members of the Electoral College of Unit No. 9 to be members of Chowkbazar Union Committee, Chittagong, the respondent No. 2 being authorised by respondent No. 1 in accordance with Rule 3 of the East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules, 1965 (hereinafter referred to as the Rules) convened a meeting of the aforesaid Union Committee on 25‑8‑1965 for the purpose of election of the Chairman of the Union Committee. That meeting of the members of the Chowkbazar Union Committee which consists of 9 members was held on 28‑5‑1965 at 2‑00 p. m. in the Chittagong Municipal Office of which respondent No. 3 is the Vice‑Chairman. The meeting was presided over by respondent No. 2. Two members contested the election for the office of Chairman‑Obaidur Rahman Nizam and Syed Ahmed Khan. Out of 9 votes cast, each candidate had secured 4 valid votes and there was a voting paper containing cross‑marks in ink against the names of each of the two candidates and as such the respondent No. 2 after counting the votes under sub‑rules (2) of rule 7, declared that there was an equality of votes and a report shall be made accordingly to respondent No. 1. It is then alleged that respondent No. 3 Obaidur Rahman Nizam who is a rich and influential man and Vice‑Chairman of the Municipality persuaded respondent No. 1 Sub‑Divisional Officer, to declare him to have been elected as Chairman on the ground that the disputed vote has been cast in his favour. Further allegation of the petitioner is that suspecting foul play, the petitioner informed Captain Md. Bakhtyar, who seconded the candidature of Syed Ahmad Khan, who at the time was standing outside the Municipal office about what was going on and immediately the said Captain Md. Bakhtyar came into the office, examined the voting papers and submitted a petition to respondent No. 2 stating that the ballot paper which contains two cross‑marks should not be taken as valid and the same should be cancelled in terms of subs-rule (2) of rule 11 of Election Rules of 1965. A copy this application has been annexed and marked A'. Then it is alleged that the respondent No. 3 contacted respondent No. 1 on telephone and respondent No. 1 came to the Municipal office and had some consultations with respondent No. 2 and the latter at about 3‑45 p.m. declared respondent No. 3 to have been elected Chairman by polling 5 votes as against 4 votes secured by his rival Syed Ahmed Khan. This meant that the ballot paper containing two cross‑marks was counted in favour of the respondent No. 3. It is further stated in the petition that Syed Ahmed Khan protested against the illegal decision of respondent No. 2 and demanded a fresh election but respon dents Nos. 1 and 2 did not comply with his request. In paragraphs 13 and 14 of the petition it is stated that there being equality of votes between two candidates, respondents Nos. 2 and 3 were legally bound to convene a fresh meeting as provided in rule 8 and that there has been no valid election of the Chairman of the said Union Committee. That the declaration of res pondent No. 3 to have been duly elected as Chairman to the office of the Chairman of the Union Committee on the basis of Invalid votes has caused serious loss and injury to the petitioner and upon these grounds he has asked for a declaration that the election of respondent No. 3 is illegal and void and that he be directed to satisfy the Court as to under what authority he is holding the said public office of the Chairman of the said Union Committee.

In para. 16 of the petition it is stated that in view of the facts stated above there is no other adequate, speedy, alternative remedy except an application under Article 98 of the Constitu tion.

Respondent No. 3 contested this application by filing affidavit‑in‑opposition in which he has taken the points first that this application is not maintainable in law inasmuch as he has not exhausted the remedy available under Rules and that the only remedy in the matter, for the petitioner is an application under the said rules to the authorities named therein. Secondly that the defeated candidate Syed Ahmed Khan having submitted dispute petition before the Collector under Rule 10 of the Rules on the selfsame grounds which is pending disposal, this application under Article 98 of the Constitution, which is in effect by the said Syed Ahmed Khan in the name of his friend and supporter Dakhina Ranjan Barua is not maintainable. Syed Ahmed Khan is trying to obtain two sets of remedies for the said cause in two different forums, the present application is a colourable one, that disputed questions of fact have also been raised in the affidavit of the respondent No. 3. He has denied all other allegations of his influencing either respondent No. 2 or respondent No. 1 or for the matter of that other high officials, of the Government concerned with the conduct of election of union Committees and Union Councils. He has dented the statement of the petitioner that on the relevant date he was Vice- Chairman of Chittagong Municipality; that the allegations of respondent No. 3 having influenced the officials have been made by the petitioner with an ulterior motive. He has, of course, in his affidavit stated that there was no question of equality of votes between him and Syed Ahmed Khan and that he was elected duly by obtaining 5 votes out of 9 cast for the election of the Chairman on the relevant date. He has further denied that respondent No. 2, to have, after counting the votes, made statement that there was equality of votes and as such he has made a report to the respondent No. 1. Respondent No. 3's case is that there was no such statement made by the respondent No. 2, on the contrary respondent No. 2 having counted the votes found 5 in favour of respondent No. 3 as against 4 in favour of Syed Ahmed Khan who is added respondent in the petition, and they‑after duly declared respondent No. 3 to have been elected Chairman of the said Union Committee other such allegations made La the petition have been stoutly denied by respondent No. 3.

Respondent No. 2 who was Presiding Officer has filed an affidavit‑in‑opposition on his behalf and on behalf of respondent No. 1. So far as he himself is concerned, he has denied to have declared at the first instance that there was an equality of votes between the two candidates. He stated in his affidavit in this connection "this deponent further stated that at the time of counting the votes one Captain Md. Bakhtyar pointed out that one ballot paper was doubly crossed and asserted that the ballot paper should be declared invalid. Then the respondent No. 2 scrutinised the particular ballot paper and found that clear mark on the space meant for respondent No. 3 and another slight re -impression of the original cross‑mark given in favour of respon dent No. 3 was spotted on the line demarcating the names of respondent No. 3 and Mr. Syed Ahmed Khan. That this slight re‑impression was there due to the fact that just after original marking, the voter folded the ballot paper to put it into ballot box and for this hurried folding of the ballot paper to put it into the ballot box well before the ink dried up, the original mark left a slight impression on the demarcating line. That as such the respondent No. 2 found no reason to corroborate with tie assertion of Captain Md. Bakhtyar to declare that the particular ballot paper is invalid" In para. 7 of his affidavit‑in‑opposition this deponent states "that respondent No. 3 is not a rich and influential man of the Municipality, rather he is a service holder and on the appointed date he had no connection whatsoever with the Municipal Administration". Thereafter he has denied to have had any talk with respondent No. 1 on 25‑8‑65 on any matter on the appointed date far less the election matter. With regard to the other assertion of the petitioner this .respondent has denied those and further states that he had no manner of communication with respondent No. 1. He asserted that the result of the election was declared by him on the spot under rule 7 (2) of the Rules.

In para. 16 of his affidavit the respondent No. 2 has raised all questions of maintainability of this petition on the ground of alternative remedy.

Last para. of the affidavit of respondent No. 2 which relates to the affirmation of the statement made by him does not give us any indication as to which part of his affidavit is based on his knowledge and which of it are submissions to the Court. Reading the para. as it is, it seems that, all the submissions up to para 16 are true to his knowledge and the rest are submissions to the Court, although there is no other para. which can be referred to as the rest.

The petitioner gave an affidavit‑in‑reply in which he has reiterated all that he has said in his petition. The added respondent No. 4 Syed Ahmed Khan has put in an affidavit in which he has in all particulars supported the allegations made in the petition by Dakhina Ranjan Barua.

The respondent No. 3 has almost on the same lines put in an affidavit‑in‑opposition to the affidavit of added respondent Syed Ahmed Khan, the details of which we need not refer to, as those are covered by the statement made in the petition and referred to in affidavit‑in‑opposition of respondent No. 3.

Before we take up the points of law that arise for our consideration in this application we cannot help observing that the affidavit of respondent No. 2 has not been properly prepared and the Government if they wanted to make any submission have not done so in proper manner.

Respondent no 2, has, in our opinion, gone out of his way to support respondent No. 3's contention even with regard to the matters which do not relate to the legality or illegality of the proceedings, and in respect of which the respondent No. 3 alone had the authority to speak. Even though the respondent No. 2 has tried to deny the allegations of influence by respondent

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.

.‑I agree.

A. H.

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