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Writ Petition No. 17 of 1956 decided on 1st March 1956.

S. 223‑A‑Writ of Quo‑warranto‑Election to West Pakistan Interim Legislative Assembly‑Jurisdiction of Court barred under S. 12 (6), Establishment of West Pakistan Act, 1955‑Writ not to issue where other specific speedy and effective remedy provided--- Petition for writ necessitating elaborate inquiry and recording of evidence‑Issue of writ not desirable.

Subsection (6) of section 12 of the Establishment of West Pakistan Act, 1955 creates a bar to the jurisdiction of the High Court to question the election of members to the West Pakistan Interim Legislative Assembly held under the Act.

Section 223‑A of the Government of India Act confers an extraordinary and exceptional jurisdiction on a High Court so that whenever there is a specific legal right for which a specific legal remedy is provided, the person claiming that right should first seek that specific legal remedy. Section 223‑A, is not a substitute for the specific legal remedy, it only reinforces the remedy, and comes to the help of the aggrieved person, when the specific legal remedy is found to be not convenient, speedy, beneficial, effective and adequate.

Where a specific remedy is provided for a specific legal right, the decision of controversial points involved in a writ petition requiring an elaborate inquiry and recording of evidence is possible only in proceedings taken under that remedy, and certainly not in proceedings taken by way of a petition under section 223‑A, Government of India Act.

N. P. Ponnuswami v. The Returning Officer Namakhal Constituency A I R 1952 S. C. 64, Amin Ahmad v. Nand Lal Sinha A I R 1953 Pat. 293, Ram Krishna Mohan v. Daoosing Sheoprasad Singh and others A I R 1953 Nag. 357 and Polaki Kotesam and others v. S, M. Patnaik A I R 1954 Orissa 87 ref.

‑Omission to use words "Notwithstanding any other provision" before an exclusion clause, makes no difference.

Subsection (6) of section 12 of the Establishment of West Pakistan Act, 1955 excluded jurisdiction of Courts to question results of election to the West Pakistan Interim Assembly but the subsection did not use words like "Notwith standing any other provision" etc.

An election was therefore sought to be questioned under section 223‑A. Government of India Act, 1935 by a prayer for the issue of a writ of quo‑warranto.

that the jurisdiction of the High Court was barred and the omission to use these words made no difference.

Dr. Abdur Rahim for Petitioner.

Kazi Abdul Wahab for Respondent (1).

Muhammad Ali, Additional Advocate‑General for Res pondents 2 to 5.

The Establishment of West Pakistan Act, 1955, (hereinafter called "The Act"), brought into existence with effect from the 15th of October, 1955, the Province of West Pakistan, incorporating into it the Governors' Provinces of the Punjab, the North‑West Frontier Province and Sind, the Chief Commissioner's Province of Baluchistan and the Capital of the Federation, the States of Bahawalpur and Khairpur, and the Baluchistan States Union, as well as the Tribal Areas of Baluchistan, the Punjab and the North‑West Frontier, and the States of Amb, Chitral, Dir and Swat. Under section 11 of the Act, until a Provincial Legislature was constituted for West Pakistan in accordance with the Government of India Act 1935, an Interim Provincial Legislature for West Pakistan was formed, which was to consist of the Governor of West Pakistan, and the Legislative Assembly composed of 310 members, out of whom, as laid down in the Second Schedule to the Act, six members were to be elected from the members of the Council of Elders (Jirgas) of the Tribal Areas, adjoining Hazara and Mardan Districts of the erstwhile Governor's Province of North -West Frontier (hereinafter called Constituency No. 43), In exercise of the powers conferred upon him by the Proviso to subsection (3) of section 11 of the Act, His Excel lency the Governor‑General of Pakistan, by Notification No. F. 4 (6)/55‑CON (1), dated 20th of December 1955, appointed Deputy Commissioner Hazara to be the Returning Officer in respect of Constituency No. 43, for the purpose of the first General Election to the Interim Provincial Legislature. The election by the order of the same authority was to be held at Batagram; nomination papers were to be received by the Returning Officer between the hours of 10 a.m. and 1 P.m., on 12th of January 1956 ; the scrutiny thereof was to take place on the 13th of January 1956, withdrawal, if any, five days later and polling on the 19th of

January 1956, between the hours of 9 a.m. and 1 p.m. By Notification No. 2678 dated 79th January 1956, published in the Gazette of West Pakistan (Extraordinary), the 24^th January 1956, Mr. Muhammad Jan Khan, in his capacity as a Returning Officer, declared Hon'ble Sardar Bahadur Khan, Malik Gajju Khan of Jalkot, Sadullah Khan of Kalilar, Quresh Khan of Dewal, Rustam Khan of Hill, and Muhammad Ayub Khan of Biari, as duly elected as members of the Interim "Provincial Assembly" of West Pakistan from Constituency No. 43.

Ziarat Khan, son of Hazratji Khan, of Gandaf, by petition No. 32 of 1956, and Malang Khan, son of Muhammad Jehangir Khan ' of Batgram, and Faqir Muhammad Khan, son of Niamatullah Khan, of Bandigo, by petition No. 34 of 1956, have prayed for the issue of a writ of quo‑warranto, or any other writ which this Court might deem fit under section 223‑A of the Government of India Act, restraining the six persons named above from exercising their functions as members of the Legislative Assembly of West Pakistan, as well as for the issue of the orders to the Government of Pakistan, through the Secretary Law Department Karachi, the Government of West Pakistan, through its Chief Secretary Lahore, the Secretary Interim Legislative Assembly of West Pakistan Lahore, Deputy Commissioner Hazara, and the Election Commissioner West Pakistan Lahore, to cancel the Gazette Notification of Election from Constituency No. 43, published in the West Pakistan Gazette, dated 24^th January 1956 and to place before this Court all the information, lists, orders, instructions, correspondence, nomination papers etc. concerning the aforesaid election to Constituency No. 43, and to hold a proper election; fairly and honestly in due discharge of their statutory obligations.

Ajun Khan, son of Azim Khan, of village Bada, and Khan Abdur Rahman Khan, son of Habib Khan, of village Kiya Bala, by two separate petitions Nos. 22 and 17 of 1956, have also prayed for the issue of the same writ and the orders, but only as against Quresh Khan and Sadullah Khan respectively. In these two petitions no prayer is made as against the Election Commissioner West Pakistan Lahore, nor has he been cited as a respondent.

Since all the four petitions involve common questions of law and fact, they can conveniently be disposed of by one single order.

In order to appreciate the application of the relevant law to these four petitions, it is necessary to formulate the grounds upon which they are based some of these grounds are common to all the petitions and the rest particular to one or the other of them. When put together they would be somewhat to the following effect: ‑

(1) No Council of Elders (Jirgas) as contemplated by the West Pakistan Act 1955 ever existed in this area, nor have the Government of Pakistan, the Government of West Pakistan and the Deputy Commissioner, Hazara, deliberately elected.

(2) The petitioners contacted the authorities for lists of the people who would be allowed to elect members to the aforesaid Assembly on 19th January 1956, but it was revealed that no such lists existed, and that they were in the course of preparation, but the names could not be dis closed till the last minute.

(3) In utter violation of Rule 5 of the Special Areas Election Rules published in the West Pakistan Gazette (Extraordinary), dated 30th of December 1955, the Deputy Commissioner. Hazara, neither called upon any Jirga to nominate any person, nor did he openly carry out the proceedings.

(4) The two Governments mentioned above, and the Deputy Commissioner Hazara, divided Constituency No. 43 into six territorial Constituencies contrary to the letter and spirit of the West Pakistan Act 1955.

(5) The entire proceedings which took place on 19th January 1956, constituted a deliberate and studied fraud on the Statute, and were actuated with the sole object of securing collusive returns and Were opposed to all canons of justice and fair‑play.

(6) No proper notice as laid down in Rule 3 of the Rules mentioned above was given‑ about the election.

(7) Ajun Khan handed over his nomination‑papers to the Returning Officer with the greatest of difficulty.

(8) No proper scrutiny of the voters for Quresh Khan respondent No. 1 was held.

(9) Several persons were not allowed to go to the Poling Station to cast their votes on one pretext or the other.

(10) A number of bogus voters were deliberately allowed for Quresh Khan to poll their votes.

(11) In spite of the pre‑arranged dishonesty Ajun Khan secured a clear majority, but even then he was not declared elected.

(12) The counting of the votes in the case of Quresh Khan was not done honestly and that the returning officer was hand in glove with him.

A perusal of the above grounds alone would make it amply clear that these petitions are nothing more but election petitions in disguise. Their only object is to question the validity of the election of the six persons mentioned above from Constituency No. 43. This, the Court is debarred to do under subsection (6j of section 12 of the Act, which runs as under: ‑

"The validity of an election under section 11 of this Act shall not be questioned in any Court."

This provision of law, in our view excludes the juris diction of the High Court to question the validity of an election by a petition under section 223‑A of the Government of India Act.

There are corresponding provisions in the Constitution of India both to section 223‑A of the Government of India Act, and subsection (6) of section 11 of the Act in the shape of Articles 226 and 329 respectively. Similar questions have come up before different High Courts of India, and they have also held the same view as we proposed to do in this case. Some of those cases are as under: ‑

N. P. Ponnuswami v. The Returning Officer Namakhal Constituency (A I R 1952 S C 64).

"The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution, and another after they have been completed by means of an election petition. Any matter, which has the effect of vitiating the election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal, and should not be brought up at an intermediate stage before any Court. Under the election law, the only significance, which the rejection of nomination‑paper has consists in the fact that it can be used as a ground to call the election in question. Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground and other grounds, which may be raised under the law to call the election in question could be urged. It follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage, and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329 (b) and in setting up a special tribunal."

Amin Ahmad v. Nand Lal Sinha (A I R 1953 Pat. 293).

"The issue of notification under sections 151 and 39 (2) of the Representation of the People Act is a part of the process of election within the meaning of Article 329 (b) of the Constitution and Article 329 (b) excludes the juris diction of the High Court to issue a writ under Article 226."

Ram Krishna Mohan v. Daoosing Sheoprasad Singh and others (A I R 1953 Nag. 357).

"Election includes all proceedings commencing with the nomination and ending with the declaration of result. It continues till final decision is reached regarding the poll by whosoever it be and in a case where the proceedings are taken under section 98 (b) of the Representation of the People Act, until the tribunal declares the election of the candidate void. The result so announced must be final because as the only process under which an election dispute can be decided has been gone through there can be no other mode of reopening the question. To allow it to be) questioned otherwise would be setting up a rival procedure not warranted by Art. 329 (b). The opening words "Notwithstanding anything in this Constitution' of Art. 329 are wide enough to exclude the powers of the High Court under Art. 226 and Art. 227, and hence the Court will have no jurisdiction to issue a writ of certiorari against the order of the tribunal declaring the election of a candiate void."

Polaki Kotesam and others v. S. M. Patnaik (A I R 1954 Orissa 87).

"To attract Article 329 (b), there must be 'Election'. Word 'Election' has been used in the Constitution in a very wide and comprehensive sense to connote the entire process culminating in a candidate being declared elected. No writ can issue to Returning Officer with a view to quash his order rejecting or accepting a nomination paper, and that his decision can be questioned only by means of an election petition after the election is completed. Article 329 (b) thus constitutes a bar to a Court's inter ference because the process of election has already com menced, and the petitioners are not entitled to any relief under Article 226."

The only possible argument which could be advanced was that the words "Notwithstanding any other provision" in the Act are missing from subsection (6) of section 12, and, therefore, this provision of law does not exclude the jurisdiction conferred on a High Court under section 223‑A of the Government of India Act. In our view, the absence of these words would not make any difference at all, because if they did, then subsection (6) of section 12 would become absolutely redundant. When the Legislature says that a certain act cannot be questioned by any Court of law, then it means it notwithstanding any provision contrary to it in any other law. We consequently hold that subsection (6) of section 12 of the Act creates a clear bar to the jurisdiction of this Court to question the election of the six declared candidates from Constituency No. 43.

Apart from that, the persons aggrieved by the election are not left, by the law without a remedy. This remedy is provided by section 12 itself, which says that if any doubt or dispute arises as to whether a person has or has not been validly elected to the Legislative Assembly, it shall be raised by a petition to the Governor of West Pakistan, who shall then appoint a tribunal consisting of a Chairman, who shall be or has been a Judge of a High Court, and two other persons who shall be or have been District and Sessions Judges in Pakistan. This tribunal has got to be set up within six weeks of the receipt of the petition by the Governor.

Section 223‑A of the Government of India Act confers an extraordinary and exceptional jurisdiction on a High Court. Whenever there is a specific legal right for which a specific legal remedy is provided, then the person claiming that right should first seek that specific legal remedy. Section 223‑A, is not a substitute for the specific legal remedy, it only reinforces the remedy, and comes to the help of the aggrieved person, when the specific legal remedy is found to be not convenient, speedy, beneficial, effective and adequate. If section 223‑A, is held to provide an additional remedy to all kinds of wrong, then the ordinary remedies provided by different laws would be rendered nugatory. Not only that, section 223‑A in itself would become a mere mockery, and would lose its beneficial effects.

In any case, .the four petitions raise controversial points and in order to get at their truth, it is necessary to hold an elaborate inquiry. The parties must produce their evidence, because in the absence thereof it is very difficult to decide those points. All this can be done more effectively by means of an inquiry held under section 12 of the Act, but it is certainly not possible under section 223‑A of the Government of India Act.

The result is that we are firmly of the opinion that the four petitions before us are not only misconceived but also ill‑advised. They are hereby dismissed with costs. Pleader's fee Rs. 200 in each case.

The certificate of fitness as contemplated by section 205 of the Government of India Act is hereby granted to all the petitioners in the four petitions.

A.H.

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