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‑‑‑ S. 37(2)(f)‑‑Constitution of Pakistan (1973), Art. 199‑‑Election Contention that respondent when elected as member local council in 1979 elections was President of an unregistered political party and incharge of election affairs of that party and thus disqualified for election‑Petition, held, submitted suffering from laches and no explanation furnished in support thereof nor any admissible evidence produced to show that respondent was office‑bearer of unregistered political party and as such disqualified‑Petition dismissed.

‑‑ Art. 199 ‑Quo warranto writ of‑Grant discretionary with High Court‑Conduct and motive of petitioner ‑ Enquiry‑Quo warranto not issued as matter of course on sheer technicalities on a doctrinaire approach.

Kamal Hussain v. Sirajul Islam P L D 1969 S C 42 and Muhammad Siddiq v. Karam Bakhsh P L D 1971 Lah. 928 fol.

---‑Art. 199 read with Sind Local Government Ordinance (XII of 1979), S. ‑37(2)(f)‑Election petition‑Constitutional jurisdiction Petitioner having alternate remedy available before Election Authority where disputed questions of fact involving recording of evidence and decision more appropriately would have been adjudicated‑Delay in filing of petition also not satisfactorily explained and matter involving recording of evidence and determining intricate questions of facts ‑ Petitioner, held, cannot invoke constitutional jurisdiction after lapse of almost two years, in circumstances.

Rasool Bux Unar for Petitioner.

Nemo for Respondent.

Date of hearing : 2nd September, 1981.

K. A. GHANI, J.‑The brief facts of the case are , that the respondent No. 1, resident of village Tahir Hingoro in Town Committee, Oderolal Station, is enrolled as such in the Electoral Rolls for the said Town Committee Oderolal Station. The Sind Election Authority notified the election programme for holding elections to the local councils in the Province of Sind and called upon the electorate to elect their representa tives in the respective local councils. According to the petitioner the date for filing the nomination papers before the respective Returning Officers for the purpose of this petition, was filed as 8th September, 1979 and it was subsequently extended upto 15th September, 1979.

The respondent No. 1 filed his nomination papers to seek election in one of the electoral units of Town Committee T. C.‑1. Oderolal Station and none else filed any nomination paper in this constituency. No objection at the time of scrutiny of the nomination papers of the respondent No. 1 was raised and accordingly the nomination paper of the respondent No. 1 was accepted. There being no other candidate the respondent No. 1 was declared elected unopposed as a member of Town Committee. Oderolal Station from Electoral area T. C.‑I, Oderolal Station. The name of the respondent No. 1 was notified in the gazette notification by the Sind Election Authority, Karachi, in the issue dated 28th October, 1979 wherein the respondent No. 1 was shown to have been elected as unopposed member of the said Town Committee, Oderolal Station.

The respondent No. 1 was sworn on 11th November, 1979 as a member of the Town Committee. Oderolal Station.

Subsequently he was also elected as the Chairman Town Committee, Oderolal Station and has been performing the public functions attached to the said public office since then.

2. The petitioner, who claims to be the resident and voter of the aforesaid Town Committee, Oderolal Station filed this petition on 11th July, 1981, seeking relief to the effect that the election of the respondent No. 1 and the declarations and notifications made/issued by the respondent No. 1 "Civil Judge, Hala and Returning Officer" and that of the respondent No. 3 (Sind Election Authority) be declared as illegal and against the provisions of Election Laws and that the respondent No. 1 is holding statutory public office as Chairman, Town Committee, Oderolal Station unauthorisedly, illegally and incompetently. He sought further declaration that the seat of T. C.‑t Town Committee; Oderolal Station, is lying vacant and also prayed for restraining the respondent No. 1 from acting as.

3. At the time of hearing of the above petition for katcha peshi, the learned counsel for petitioner sought to rely upon the provisions contained under section 37(2)(f) of the Sind Local Government Ordinance, 1979 in support of his submission that the respondent No. 1 was the President of Pakistan Peoples Party, Oderolal Station and at the time of election to the Local councils in the month of September, 1979 he was the President of Pakistan Peoples Party for Taluka Hala and incharge of election affairs of that party and was thus disqualified from being elected as a member of elective body under any law for the time being in force.

Section 37(2)(f) of Sind Local Government Ordinance, 1979 on which the learned Counsel relied reads as follows :‑

Section 37 (2).‑A person shall be disqualified from being elected as, and from being a member, if ‑

(a)-------

(b)-----

(c)

(d)

(e)

(f) be is for the time being disqualified for membership of an elective body under any law for the time being in force." , .

4. On 24th August, 1981 the above Petition came up for kateha peshi and the following order was passed by a learned Division Bench of this Court :‑

"We have pointed out to the learned Advocate that the petition prima facie appears to be suffering from laches and that there was no evidence whatsoever before us to show that respondent No. 1 was an office‑bearer of an unregistered political party. He requests for time, so as to prepare himself on these two points."

5. On 2nd September; 1981 the learned Advocate for the petitioner was further heard on the points mentioned above but he was neither able to explain the laches in filing the petition nor any admissible evidence was produced to show that the respondent No. 1 was an office‑bearer of an unregistered political party and was disqualified within the meaning of section 27(2)(f) of Sind Local Government Ordinance, 1979.

In the circumstances of the case we are also of the view that it is necessary for this Court to inquire into the conduct and motives of the petitioner in order to determine whether the Court should exercise it discretion to decline the grant of writ of quo warranto. In order to reach c the conclusion, we may refer here to the principles laid down by the Honourable Supreme Court of Pakistan in the case of Kamal Hussain v. Sirajul Islam (P L ,D 1969‑S C 42) wherein at page 51 the Hon'ble Court held ,.,as follows :‑

"Under Article 98(2)(b) any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority. On that account it cannot be doubted that Mr. Sirajul Islam did have the locus standi to file the petition, but the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer tenchnalities on a doctrinaire approach. In the present case, considering all the circumstances I cannot escape the feeling that Mr. Sirajul Islam is not entirely playing his own game, for high altruistic motives, and that he‑ has instituted the writ petition not so much for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations."

As regards the delay in filing the petition it was further, observed :‑

"The delay that has occurred in the filing‑ of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief."

6. The learned High Court of Lahore also in the case of Muhammad Siddiq v. Karam Bakhsh (P L D 1971 Lab. 928) declined to entertain petition in which writ in the nature of.quo warranto was sought to be issued on the principles laid down in para: 281 at pages 148, 150 of Vol. II of Halsbury's laws of England to the effect that an information in the nature of a quo warranto would not issue and an injunction in lieu thereof will not be granted, as a matter of course and that it is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The learned author further proceeded and stated :‑. .

"The Court would inquire into the conduct and motives of the appli cant, and the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective. It is conceived that the Court will follow similar principles in determining whether to grant an injunction in lieu

Again, where the circumstances of the application are such as to throw suspicion upon the motives of the relator, the Court would not grant an information the consequences of which might be to dissolve the corporation ; similarly where there was ground for supposing that the relator was not the real prosecutor but was the instrument of other persons who were incompetent as relators, or that he was applying in collusion with strangers."

In the present case as well, we find that the matter would involve recording of evidence and determining intricate questions of facts. The petitioner could have availed remedy before the Election Authority by way of alternate remedy where the disputed questions of fact involving recording of evidence and decision on the disputed questions of fact would more appropriately be adjudicated. Further delay in filing the petition has also not been satisfactorily explained.

7. Considering the facts and circumstances of the case and for the reasons stated above we are of the opinion that it is not a fit case in which the petitioner whose bona fides are not beyond doubt can invoke the constitutional jurisdiction of this Court, after lapse of almost .two years.

8. The petition was dismissed by short order passed on 2nd September, 1981 and the above are reasons for the same.

M.Y.M. Petition ‑dismissed.

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