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1963 Civil Appeal No. 6 of 1962, decided on 13th May.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 5th April 1960, in Writ Petition No. 196 of 1960).

Other (Special) remedy given by statute‑Must be (ordinarily) availed of before invoking writ jurisdiction of High Court [Fazle‑Akbar, J., Cornelius, C. J. agreeing; Kaikaus, J. (contra)] ‑ (Election case) ‑ Constitution of Pakistan (1956), Art. 170‑-(Mala fides alleged in Presiding Officer at election of Chairman, Union Council).

‑Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of. Hence 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 con stitution of the Council or Legislature may be distinctly and speedily 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.

Woolverhampton New Water Works Co. v. Hawkesford (1859) 6 C B (N S) 336 and Nevile v. London Express Newspaper Ltd. (1919) A C 368 ref.

Per Kaikaus, J. (contra).

Administration of oath to members before election of Chairman of Council‑Identity of members‑Description (father's name) given by member himself not tallying with that given in list supplied to Presiding Officer‑Oath not administered to such member‑Held : (1) Presiding Officer not bound to make enquiries to establish identity of member; (2) Not guilty of mala fides in failing to institute inquiry ; (3) Absence of objection from other members immaterial‑[Per Fazle‑Akbar, J., Cornelius, C. J., agreeing; Kaikaus, J. (contra)]‑Actions of Government regarded as having been taken bona fide unless contrary is established [Sai Muhammad v. West Pakistan Province P L D 1958 S C (Pak.) 181 ref.].

Whether too strict adherence to, helps course of justice (Kaikaus, J.).

Mahbub Elahi Advocate Supreme Court instructed by Amjad Hussain Attorney for Appellant.

Maqbool Ahmad Attorney for Respondent No. 1.

Respondents Nos. 2 & 3 : Ex parte.

Date of hearing : 6th March 1963.

This appeal, by special leave, calls in question the propriety of a writ issued by the High Court of West Pakistan setting aside, in favour of the petitioner Ghulam Ali, the election of the appellant, Imtiaz Ahmad as Chairman of Union Council 9 J. B. (183), Lyallpur District. This election took place at the first meeting of the members, for which the second respondent, Ch. Khushi Muhammad, a Sub‑Divisional Officer of Canals in the P. W. D. (Irrigation Branch) was appointed as Presiding Officer. As such, his duty was to give the oath to the elected and nominated members, whose names and descriptions appeared on a list supplied to him, and thereafter to sit as Chairman while the members elected one of their number to be their Chairman. There were 19 members in all, and it is clear that Ghulam Ali was one of the elected members. There was, however, an error in the description of Ghulam Ali, viz., that in the papers of the Election office, his father's name was printed as Muhammad Ali instead of All Muhammad. The error appeared in the Gazette Notification of the election to this Union Council, which was of date the 31st January 1960, and Ghulam Ali became aware of it when he received an identity card from the Tahsildar, whereupon he applied to the Election Officer to make a correction, and this was apparently done on the 11th February, a corrigendum being issued the following day. The name of his father was corrected in the identity card, but it seems the correction was not attested. The first meeting of the Council was fixed for the 27th February 1960, and a notice was sent to Ghulam Ali, in which the father's name was again entered as Muhammad Ali, but was corrected to Ali Muhammad; again the correction was not attested.

When the Presiding Officer read out the name and particulars of Ghulam Ali as is required, for the purpose of verification, before administration of the oath of office, Ghulam Ali gave his father's name as Ali Muhammad, but in the list with the Presiding Officer the name was Muhammad Ali. Ghulam Ali protested that a correction had been made by the District Election Officer, and produced his notice and identity card, which did not carry conviction, since the corrections there made were not attested. Ghulam Ali was accordingly not given the oath, and the remaining members proceeded to elect the appellant Imtiaz Ahmad as their Chairman. It seems Ghulam Ali intended to stand for Chairman, and in his petition, he averred that ten out of the nineteen members had assured him of their support, and that they had, in writing testified concerning his identity, and that the description in the Presiding Officer's list was erroneous. He contended that the Presiding Officer's action was "manifestly illegal, arbitrary and singularly cruel."

The appellant Imtiaz Ahmad raised the preliminary plea that the election of a Chairman could only be called in question by means of an election petition. He expressed a suspicion that the correction made in the District Election office was made after the election of Chairman, in collusion with Ghulam Ali. He denied that Ghulam Ali had the support of a majority for election as Chairman, and supported the action of the Presiding Officer. The latter, in a written statement, explained the reason for his action, viz., that the difference in the father's name appeared in the list given to him, with which a corrigenda had been supplied, in which the name of Ghulam Ali did not appear; the correction in the notice he produced was not attested, he himself examined the records supplied to him "minutely" and "satisfied himself that the petitioner was not entitled to take part in the Election proceedings." The application from Ghulam Ali's "supporters" was placed before him after the election of Chairman for Union Council 9 J. B. (183) had been finished, and "proceed ings for election of a Chairman of another Council were on." There was a third respondent, namely, Malik Alain Khan, District Election Officer, who admitted that an application for correction of the mistake in question had been allowed on the 11th February 1960, but at the same time, raised the plea that the appropriate remedy for Ghulam Ali was by way of an election petition.

The main question raised in this appeal is: Whether the High Court was justified in setting aside the election of the Chairman in the exercise of its powers under the writ jurisdiction. It is urged that there can be no challenge to the validity of election except by way of election petition and the authority to which and the manner in which such petition is to be presented have been embodied in the rules framed under West Pakistan Basic Democracies (Election of Chairman) Rules 1960. It is contended that the jurisdiction that is created in the Controlling Authority is a special jurisdiction which should be invoked in such a case.

It is well recognised that where a right or liability is created by A statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of. See Woolverhampton New Water Works Co. v. Hawkesford ((1859) 6 C B (N S) 336) and Novile v. London Express Newspaper Ltd. ((1919) A C 368). Hence 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 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 there fore 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. For instance, where actions are characterised as being done in bad faith, the exercise of public power may thus be called in question. Here the respondent Ali attempted to show that the Presiding Officer in refusing to administer oath to him acted mala fide. Two questions arise, viz., one of fact, namely; whether there was bad faith, and the other of law, namely, whether in the circumstances, the action of the public authority was illegal and void. The Court has therefore, first to decide what was the duty which he was required to perform in relation to his duty as a Presiding Officer, and secondly whether the manner in which he acted was a performance of duty in accordance with the rules.

Under rule 7 of West Pakistan Local Councils (Assumption of Office) Rules, 1960, the Presiding Officer is to administer the oath of office to all the members present at the meeting.

Hence before administering the oath the Presiding Officer had to be satisfied as to the identity of the person to whom he was administering oath. The Gazette Notification described Ghulam Ali as the son of 'Muhammad Ali' whereas to the Presiding Officer he gave his father's name as 'Ali Muhammad.' He relied on the circumstance that in the notice of the meeting sent to him and in his identity card, the name of his father had been altered from "Muhammad Ali" to "Ali Muhammad." As, however, the said corrections were not initialled by any competent authority, the Presiding Officer was unable to rely on the same. The corrigenda relating to the Electoral Roll supplied to him by the Election Officer also did not contain the alleged correction. Hence nothing in the nature of bad faith or bias on the part of the Presiding Officer appears or can be deduced from anything contained in the record. There is also nothing to show that the Presiding Officer knew Ghulam Ali from before.

The learned Judges of the High Court have held that the Presiding Officer acted in bad faith. The grounds upon which their decision is based are as follows:--

(1) the Presiding Officer did not reply to the allegation con tained in the second affidavit of the petitioner Ghulam Ali ;

(ii) that in spite of the fact that Ghulam Ali's identity was not questioned by any of the members present, the Presiding Officer refused to administer oath to him ; and

(iii) that the office of the District Election Officer was about 2 furlongs from the place of the meeting and the Presiding Officer could have easily verified the assertion of the petitioner Ghulam Ali.

I do not find it possible to endorse the views expressed by the learned Judges. It may be mentioned here that in the petition for writ which was filed on the 4th of March 1960, there was no allegation of mala fide on the part of the Presiding Officer. There was a hearing on the 8th March, where counsel for the petitioner sought, and was granted permission to "file an affidavit as to bad faith, if it is true that his name was rejected in bad faith." He took advantage of this facility. In the second affidavit it was alleged that before commencement of the meeting the respondent Imtiaz Ahmad had remained closeted with the Presiding Officer for more than half an hour. The Presiding Officer filed a reply to the allegations contained in the writ petition, but as this was never amended so as to include the allegation of bad faith, the Presiding Officer's reply which was filed on the 18th March 1960, contains no answer on this point. This allegation was however strenuously denied by Imtiaz Ahmad in his affidavit- in‑opposition. According to him the Presiding Officer arrived at 8‑20 a.m., and the proceedings commenced at 8‑30 a.m., it was "entirely incorrect" that he was closeted with the Presiding Officer "for any fraction of time." This denial is not noticed in the judgment of the High Court, and not nearly enough weight is given to the Presiding Officer's oral submission in Court that he was never given a copy of the petitioner's second affidavit. Therefore his silence on the point cannot be a ground for any inference against him. Secondly, the learned Judges seem to think that in the absence of any objection from the members present the Presiding Officer should have accepted the identity of Ghulam Ali in spite of his father's name being different from that appearing in the list supplied to him. I am unable to see that a mere authority to give the oath to a number of persons whose names appeared on a list supplied to him, and to occupy the chair while these persons elected a Chairman, clothed the Presiding Officer with powers of enquiry to investigate so important a question as that of identity, turning upon the person being the son of another than the person named in the aforesaid list. The mere allegation that in the Election office, the list had been corrected was insufficient to weigh against the patent fact that in two documents placed before the Presiding Officer to establish identity, viz., the notice of the meeting, and his identity card, the corrections were unattested, and may have been made by anyone, e.g., by the person himself.

It was entirely for the Presiding Officer to be fully satisfied as to the identity of the member to whom he was to administer oath. If there had been an error, the responsibility would have been his. Simply because there was no objection from any quarter as to the identity of Ghulam Ali, was not a circumstance obliging him to overlook the patent difference appearing in the father's name. It cannot, therefore, be said that he acted illegally or capriciously in not accepting Ghulam Ali's identity in the circumstances in which he was placed. In any event it falls far short of proving mala fide or bad faith.

Thirdly, the learned Judges thought that the Presiding Officer could have easily verified the assertion of Ghulam Ali from the office of the District Election Officer which was about 2 furlongs from the place of the meeting. As in my opinion he was not bound to hold such an enquiry, no adverse inference could be drawn against him for his failure to do so. It is established by affidavit that he had to perform similar functions for several other Union Councils the same day, and moreover, he was not an officer of the general administration, or from the judicial service, with training and experience in the holding of enquiries of this kind. For both these reasons, it was natural that he should go by the letter of the documents provided to him, in conducting his proceedings, and no inference of bad faith can arise simply from this circumstance.

As pointed out in Sai Muhammad v. West Pakistan Province (P L D 1958 S C (Pak.) 181) :‑

"The correct attitude in estimating the actions of Government is indeed that they must be regarded as having been taken bona fide until and unless the contrary is established."

The facts on which the learned Judges relied, in my opinion, are not sufficient to rebut the presumption of bona fides of the action of Presiding officer in this case. The Rules provide for a member who fails to take the oath at the first meeting, to be given the oath on a subsequent occasion, and Ghulam Ali could very well have been inducted later under this provision. It is true that he would not have been able to participate in the election for Chairman, which is required to be held at once, but such may equally have been the result if he had fallen ill, or suffered an accident on the way to the meeting, and thus been prevented from attending. The accident in the present case appears to have been that a correction made by the District Election Officer was not entered in the list supplied to the Presiding Officer. If Ghulam Ali had been a little more careful, he would have seen to it that this precaution was taken, or at least that the corrections in his notice and identity card were duly attested. It appears that he wished the Presiding Officer to act contrary to the document, viz., the list supplied to him, on the basis of oral submissions by himself, which were apparently not contradicted by others present, but that would not have excused the Presiding Officer, had he in fact been led into error, for his responsibility was plain, viz., to act according to his list. Ghulam Ali alleged that the Presiding Officer refused to act on a written application by his supporters, but the Presiding Officer in his reply made it plain that this writing was only given to him after the election for Chairman was over, at which stage such support was merely illusory and gratuitous.

For the above reasons I am of opinion that the order of the High Court setting aside the election of the Chairman must be set aside and the writ issued by it should be recalled. In the circumstances of the case I would make no order as to costs.

Ultimately the important question which may have to be decided in this appeal is whether a wrong done by the Administration can be undone or whether the officers who are dealing with the election matters can by their mistakes perpetrate an irremediable injustice.

I will state first the facts as I understand them. Ghulam Ali respondent No. 1 (hereinafter referred to as the respondent) was elected as a Member of the Union Council 9‑J. B. (183) along with Imtiaz Ahmad appellant and eleven others and the election was notified in the official Gazette on the 31st January 1960. The appellant's father's name is Ali Muhammad, but in the Gazette Notification it appeared as Muhammad Ali. This mistake the respondent came to know when he approached the Tahsildar for an identity card which would have enabled him to cast his vote of confidence in favour of Field Marshal Muhammad Ayub Khan as President of Pakistan. He applied for correction of his name to the District Election Officer and by means of office corrigendum No. 1851/DEO/HC, dated the 12th February 1960, a correction was made and the respondent was informed of this correction vide endorsement No. 1739/DEO/HC, dated the 11th February 1960. In accordance with the rules relating to the assumption of office the 27th of April 1960, was fixed as date of the first meeting on which oath was to be administered to the Members of the Union Council and the Chairman was to be elected. When the Presiding Officer read out the name of the respondent from the list which he had with him the respondent said that his father's name was Ali Muhammad and not Muhammad Ali as appeared in the list and that a correction had already been made by the District Election Officer. A notice had been issued to the respondent of this meeting and the name of the father had in the first instance been shown as Muhammad Ali, but it had been scored out and instead Ali Muhammad had been written. This correction did not bear the initials of any person. The Presiding Officer refused to administer oath to the respondent on the ground that his description did not tally with the list which he had with him. When the respondent asked the Presiding Officer to verify the correction from the office of the District Election Officer which was at a short distance, the Presiding Officer refused to do so. When the respondent showed the Presiding Officer the notice of meeting which he had received the Presiding Officer refused to act on it on the ground that the correction in it had not been signed or initialled. The Presiding Officer did not feel called upon to verify from the Office of the District Election Officer whether the correction in the notice had in fact been made by that Office or was a forgery.

That the respondent was the person who had been elected was not a matter in doubt. It is accepted by the Presiding Officer that no one not even the appellant Imtiaz Ahmad objected that the respondent was not the person who had been elected. There were nineteen Members in all in this Union Council, six being nominated Members, and out of them according to the allegations of the respondent ten supported his election as Chairman. An application was submitted by ten Members to the effect that they would vote in favour of the respondent in the election of the Chairman. According to the Presiding Officer this application was submitted after Imtiaz Ahmad appellant had been declared elected as he was the only candidate proposed. To me it is immaterial whether the application was submitted before or after the declaration because there was not time enough for these ten members to change their opinion. If they put in an application even after the election I am quite prepared to accept that even before the election they were supporting the respondent.

The learned Judges of the High Court were of the opinion that the conduct of the Presiding Officer evidenced bad faith. It was obvious to him that it was the respondent who had been elected and that there was just a clerical mistake in the Gazette or the list which was before the Presiding Officer. He had been told that by means of a corrigendum the father's name had been changed to Ali Muhammad. Before him was also the notice issued to the respondent of this meeting which contained a correction which was not initialled. He did not choose to verify whether in fact a corrigendum had been issued or whether the correction in the notice was authorised through the Office of the District Election Officer which was at a short distance.

The more I go into the facts the worse is the impression created in my mind as to the conduct of the Presiding Officer. He had, according to the West Pakistan Local Councils (Assumption of Office) Rules, 1960, "to administer an oath of office to the members present." The question before him was whether a particular person was a member or not and with respect to this there could be no doubt in the mind of the Presiding Officer. Nobody was saying that this person who was mentioned in the list before him as Ghulam Ali son of Muhammad Ali was another person. After all some body had been elected with the name of Ghulam Ali and that person who was elected was obviously the respondent and a mistake had been made in the Gazette and in the list which was before the Presiding Officer as to his parentage and the mistake related only to the reversal of the order of two words "Muhammad" and "Ali". Any person who understands Urdu language knows well that if the word "Muhammad" be written below the letter "ain" it is difficult to distinguish whether the name is "Muhammad Ali" or "Ali Muhammad". The person presiding I believe is a person who knew Urdu. There could not have been in the mind of the Presiding Officer the slightest doubt that the respon dent was a member and according to the rule relating to administration of oath which I presume he had with him to ever , member present he had to administer an oath. If the Presiding Officer was a layman not well‑versed in these matters and he wits behaving bona fide what would he do in such a situation

The natural impulse of every person acting bona fide who is himself not sure of the law would be at once to get into touch with some person better aware of procedure than he was i.e., the District Election Officer. He could ask the District Election Officer as to what he should do as a situation had arisen for which he was not prepared. But as a matter of fact he had no need to do even that. There was before him a clear allegation that the name had already been corrected. The Office of the District Election Officer was not far away and in a few minutes the matter could be cleared up. What was the reason then for not clearing up the matter Has he given any answer to this in the affidavit which he filed My learned brother Fazle‑Akbar has said that he was not bound to make inquiries from the District Election Officer. Whether he was so bound or not is a matter which I will presently discuss, but just now I am con sidering the question of his bona fides. He does not say that he failed to make inquiries because it was not his duty to do so and perhaps such an autocratic defence has not entered his mind. What I am considering is whether it was the natural conduct of a layman acting bona fide. If he was not bound to make inquiries from the Office of the District Election Officer was he not competent to do so If he was competent then why did he not ask and why did he by this omission inflict an obvious injustice on the respondent I am trying to find out what was the motive of his action. I will presume that he had read the provision under which he was going to act. In accordance with that provision oath was to be administered to every member. This provision does not say that he was to administer oaths to persons entered in a list. If there existed a statutory list of members I could understand the argument that as the law has provided the existence of such a list it has to be corrected before oath was administered. The law does not provide for any statutory list and the Presiding Officer was just to find out who the member was and to administer oath to him. He does not say he was not prepared to accept any proof apart from the list which had been provided to him by the Office and in fact he accepts in his written statement that he did not act on the notice in which the name of the father had been changed to Ali Muhammad because the correction was not signed or initialled. So he was prepared to act on a genuine correction. Twice he has stated in his reply to the petition that the notice had not been properly initialled or signed. I put myself this question: if he was prepared to go behind the list why did he not enquire into the existence of the corrigenda or the genuine nature of the correction in the notice There is no answer to this consistent with a bona fide performance of duty. Did he believe that the respondent was making an untrue statement as to corrigenda or the notice There is no difficulty in answering this question in the negative. My learned brother Fazle‑Akbar is of the opinion that the Presiding Officer's duty was only to administer oath to the persons entered in the list supplied to him ; that the Presiding Officer was not even entitled to go into the question of identity of the persons who were entered in the list. My learned brother has said "I am enable to see that there authority to give the oath to a number of persons whose names appeared in a list supplied to him and to occupy the chairs while these persons elected a Chairman, entitled the Presiding Officer to investigate so important a question as that of identity turning upon the person being the son of another than the person named in the list." At another place my learned brother has said that the plain duty of the Presiding Officer was to act according to the list. Here is the fundamental difference in our approaches. I think the Presiding Officer was not bound to act according to a list for which there is no provision in law and which was just information supplied by the Office of the District Election Officer like any other information, and which may not be absolutely correct. His duty under the relevant rule was to administer oath to the members. If he thought he was to act in accordance with the list of names provided to him he misconceived his duty. But actually that is not what the Presiding Officer says. He was prepared to go behind the list and without any justifiable ground refused to do so. Later in this judgment I have discussed the question as to the duty of the Presiding Officer in greater detail. Why then did he not find out from the Office of the District Election Officer whether this was a genuine correction or an interpolation by the respondent Why should he presume that it was a forgery without any proof to that effect If the Office could make a mistake in a name could it not make another mistake in not initialling this correction. This attitude of the Presiding Officer is one to which I attach importance. He has no explanation whatsoever as to why he did not find out whether this correction was authorized or not. He was relying on the records of the District Election Officer for his information as to who were the members and was not relying on any statutory list. What justification had he then for relying partly on the records of the District Election Officer and for not informing himself as to the whole of that record Why did he ignore totally the claim of the respondent that there was a corrigenda and that the correction in the notice was authorized

The attitude which the respondent had adopted in this writ petition does not strengthen his case of bona fide conduct. He denies even now that the respondent was in fact the duly elected member of the Union Council. He has even now no knowledge as to whether any corrigenda had been issued for correction of the name of the father of the respondent or whether the correction in the notice was authentic though all these facts are admitted by the District Election Officer who has contested the writ petition on legal grounds.

Assuming that the Presiding Officer was not acting with the intention of helping Imtiaz Ahmad appellant I would still hold that his action was wholly arbitrary and was inspired not by a sense of the duty which he had to perform, but by a conciousness of the possession of a power on account of which it was entirely in his discretion to harm an individual or to do justice to him. Such an arbitrary exercise of power is mala fide because it takes place not in the discharge of a duty but on account of an attitude of mind which is not consistent with the performance by a public officer of his, functions. It is only those acts of a public officer which are performed while the officer is honestly trying to perform his duty that can be protected by law and even then they will not be protected if they proceed on a ground of action not available under the law. But here the attitude was not one of performance of duty. It is not necessary to find bad faith in the sense that the Presiding Officer was in league with Imtiaz Ahmad appellant. It is sufficient to find that his attitude was not one of performance of duty.

This is what I think of the conduct of the Presiding Officer and if a finding of bad faith be justified then, of course, a petition for a writ of mandamus lies, but I am quite prepared to overlook the question of bad faith and to assume that what has happened is a mere mistake. What is the legal position in that case Should this writ petition be dismissed on the ground that the remedy of the respondent was by way of an election petition as has been held by my learned brother.

In order to determine what were the remedies open to the respondent let us consider what were his grievances. He was in fact a member of the Union Council; he had not been admitted into the Union Council on the ground that he was not a member ; he had not been allowed to assume office ; and the Union Council had been constituted without him. After the improper constitution of the Union Council another event had happened namely that the Chairman had been elected. He was himself a candidate for the Office of the Chairman and he not only believed but produced proof of the fact that he had a majority of members with him. Now although it was a serious matter for the respondent that he was not allowed to participate in the election of the Chairman this was not his only grievance. He had a right to take part in all the business that was transacted and all the functions that were performed by the Union Council and of participation in this he had been deprived. In short his basic grievance was that he had not been allowed to assume office as member and to act as such. If he wanted to be installed in the office of a member of the Union Council what was his remedy He stood in need of a direction to the Presiding Officer that oath be administered to him and he be permitted to assume office. Wherefrom could he get this relief No election petition lies for the purpose of installing a person in an office which has been illegally refused to him. The respondent was bound, therefore, to come to the High Court for this purpose and ask for a writ of mandamus. He had in fact made this grievance before the High Court and had asked for a writ for restoration to his office. In para. 15 of his petition he said: "that the dispossession of the petitioner from the office of an elected member of the Union Council is illegal and void. He is entitled to the restoration of that public and representative office." In para. 16 of his writ petition which relates to reliefs one of the reliefs is thus stated:

"(a) that the petitioner be restored to his public office as a member of the Basic Democracy (Union Council) 9‑J. B. (183)."

My learned brother Fazle‑Akbar has not adverted to this aspect of the matter. Let us assume that the respondent was not interested in the election of the Chairman and only wanted restoration to his office so as to take part in the functions exercised by the Union Council. Could he not have approached the High Court in the exercise of its writ jurisdiction and asked for a simple mandamus to the effect stated above In fact the only appropriate remedy under the circumstances was a writ petition, because a remedy by a suit is on account of the long delay that must elapse in the determination of the suit not an adequate remedy. While my learned brother has not discussed the question as to why such a remedy could not be allowed to him, there is an observation made by my learned brother while discussing the question as to the bona fides of the Presiding Officer that tinder the rules an oath could have been administered to the respondent in a subsequent meeting. My learned brother was only using this as an argument against the bad faith of the Presiding Officer, but it may possibly be that a provision for oath in a subsequent meeting was also regarded as an alternative remedy which might have been pursued instead of a petition for a writ and, therefore, I would briefly discuss the question as to whether a petition for a writ of mandamus could have been dismissed on the ground of the existence of an alternate remedy in spite of the fact that in the judgment of my learned brother there is no discussion of this question.

I may point out in the first place that the relevant rule under which in a subsequent meeting oath can be administered does not cover a case like the present. I reproduce here rule 7 of the West Pakistan Local Councils (Assumption of Office) Rules, 1960. It runs :

"7(1) Oath of Office.--‑At the first meeting of a Division Council, District Council and a Tahsil Council, the Presiding Officer shall take the oath of office in the form specified in the Schedule, and thereafter administer the oath of office to all members present at the meeting, turn by turn.

(2) At the first meeting of a Union Council, Union Committee or Town Committee, the Presiding Officer shall administer the oath of office in the form specified in the Schedule to the members present, turn by turn.

(3) When the oath of office has been taken by all members present at the meeting, the Local Council shall be deemed to have assumed office.

(4) If any member of a Local Council is unable to be present at the first meeting of the Local Council, the Chairman of the Local Council at a subsequent meeting of the Local Council, shall administer the oath of office to such member. When such member has taken the oath, he shall be deemed to have taken his seat on the Local Council."

This rule it would be observed applies only to the case of a member who was "unable to be present at the first meeting of the Local Council." If a person puts himself up as a member of the Union Council in the first meeting and asks for administration of oath to him and the Presiding Officer refuses to administer an oath on the ground that he is not a member there is no provision in the rules enabling the member concerned to demand the administration of oath at a subsequent meeting. There is no provision in the rules for a reconsideration of the decision once given by the Presiding Officer that the person concerned is not a member. According to rule 7 oath had to be administered to every member present and unless the Presiding Officer finds that a particular person present is not a member he cannot refuse an oath to him. Once the Presiding Officer declares a person not to be a member he is not bound to reconsider his own decision. If a person who put himself up as a member and was rejected could apply again there would be no end to such proceedings. At the same time no person is bound to approach the authorities again for a grant to him of the right which has once been refused to him. One refusal entitles him to approach the High Court in the exercise of its writ jurisdiction. As there was never any plea before the High Court or before us that the relief as to restoration to office should be refused on this ground I do not think this matter requires serious notice. But I may point out that the Presiding Officer does not even now accept, as his written statement shows, either that the respondent is a duly elected member or that a correction had been duly made of the father's name and it would have in any case been useless to approach this Presiding Officer again.

This then is the position if we are to consider the rights of the respondent apart from his claim to stand in the election of the Chairman. He is entitled to a mandamus for restoration to the office in which the Presiding Officer had refused to install him. The next question to consider is whether when he filed the petition for such a mandamus he should have included in it a prayer for a mandamus directing a fresh election or should have filed a separate election petition. My learned brother has refused to act in the exercise of writ jurisdiction on the ground that another remedy by way of an election petition was open to him and the right in dispute being a creation of a statute the remedy provided in the statute is the one he should ordinarily pursue.

My learned brother has assumed that an election petition by the respondent did lie. I will now discuss firstly whether an election petition lay at all and secondly if it did lie whether the present case was one in which the discretion which we have to grant or to refuse a writ should have been exercised against the respon dent.

Let me at the outset state the various points which need discussion. They are :

(i) had the respondent a right to file an election petition at all

(ii) was the refusal of the Presiding Officer to administer an oath a ground which could be given effect to in an election petition

(iii) was not the election wholly void

(iv) was the writ an appropriate remedy because otherwise there would be a multiplicity of proceedings

(v) whether apart from the above considerations there were not the following reasons for an exercise of discretion in favour of the respondent

(a) the case was not an ordinary one where a writ petition was being used as a substitution for an election petition but was based on special circumstances ;

(b) the respondent was being kept out of his rights by the mistake of the administration;

(c) a writ had already been granted to him by the High Court and the question was whether this exercise of his dis cretion should be interfered with ; and

(d) the limitation for filing an election petition having expired long ago and there being no provision for extension of time refusal to entertain a writ petition would amount in this case to depriving the respondent of any remedy.

The first two points being connected may be taken up together. It would be convenient to reproduce here rule 7 of West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 :‑

"7. Election Petition.‑(1) 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 sufficient 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."

This rule does not state who is to file an election petition and the result should be that any person aggrieved may file it. Was the respondent a person aggrieved It will appear from rule 7 of the Local Councils (Assumption of Office) Rules, 1960, which has already been reproduced that when oath has been administered to members of Union Council the Council is constituted. As so constituted the Union Council consists only of the members who have already taken the oath. Whoever has not been administered an oath at the time of the election of Chairman was not a member of the Union Council at that time and it cannot be said that he was a person aggrieved. I might mention as an illustration the case of a member who is nominated after the election of the Chairman. Can it be said that he is a person aggrieved The election of the Chairman is a matter between persons who are members of the Council on that date and if those members chose not to challenge the election of the Chairman no one else has any grievance. There is another point that arises in this case and that is this. Whoever contends that an election petition can be filed even by a person who was not a member on the day of the election will at least have to accept that on the date of filing the petition he should be a member which means that he should be a person who has already taken an oath of office because till the oath is taken office is not assumed. The result is that the person Who was not a member op the date of election will at least have to apply to the Presiding Officer for administration of oath to him before he files an election petition. But as there is no provision forcing the Presiding Officer to administer an oath by any particular date or within any particular time the locus stand of such a member will depend upon whether the Presiding Officer administers an oath in time. It will be a very unsatisfactory state of the law that whether a person will be able to file an election petition will depend on the uncontrolled exercise of discretion by the Presiding Officer.

But the greater difficulty arises when we consider the question whether in an election petition the ground that election is void because the petitioner had not been administered an oath can be given effect. Can the Election Tribunal set aside an election on the ground that a person who was in fact a member had not been administered an oath and election of the Chairman had taken place without his being one of the members so that he was not entitled to stand in the election. The simple reply of any Election Tribunal to such a ground would be that the Tribunal is concerned only with the election of the Council as it was constituted on the date of the election and the Tribunal was not concerned with any bigger Union Council which might have been constituted if some other person was also administered an oath. The Election Tribunal was not entitled to go into the question whether the Council was legally constituted. If it was not legally constituted the election of the Chairman was no election at all and no petition lay, because the Election Tribunal was deciding election petitions against an election in a properly constituted Union Council. If on the other hand the Union Council was legally constituted there could be no objection to the election of the Chairman on the ground that a person had been excluded from it. Let us consider a case where oaths that were administered in one meeting and the election of the Chairman took place in a subsequent meeting and the Presiding Officer was not the same in both the meetings. Will it be possible in such a case to urge that there was any defect in the proceedings conducted by the Presiding Officer who held the election of the Chairman If there was no defect in his proceedings how could an election petition lie To put the matter simply the Election Tribunal is not entitled to go behind the constitution of a Council. It has no control over proceedings in which the Council was constituted.

The next point to consider is whether the Council was legally constituted. I have already reproduced rule 7 of the West Pakistan Local Councils (Assumption of Office) Rules, 1950. According to it "when the oath of office has been taken by all members present at the meeting the Local Council shall be deemed to have assumed office." It is clear that the assumption of office by the Local Council takes place only when all the members present at the meeting have been administered an oath. The rule does not say when all persons who according to the Presiding Officer are members have taken an oath but when all members have taken an oath, that is those who in fact are members. The right of a person who has been elected and notified as a member to be administered an oath and to assume office does not depend upon any adjudication by the Presiding Officer. He has an absolute right which is to be enforced. If any one of the members who is present is not administered an oath there is no proper con stitution of the Council. However, I do not think this is a matter which it is necessary to decide finally for the purpose of the present case because I think on other clear grounds the decision of this appeal ought to be in favour of the respondent.

I will now briefly deal with the question whether this is a fit case for the exercise of writ jurisdiction even if an election petition did lie. I do not think it is proper to refuse to exercise writ jurisdiction in the present case. I have indicated at the outset of this part of the discussion the various reasons that exist for exercise of discretion in favour of the respondent. There will be multiplicity of proceedings if there is a separate election petition. In the writ petition the election of the Chairman will be automatically set aside on the finding that the respondent was improperly excluded from the election of Chairman. The present case is an extraordinary one. To refuse writ jurisdiction in this case amounts to refusal of remedy altogether as limitation has expired. The objection is one that relates to the very constitution of the Union Council and is not an ordinary ground for avoiding an election which relates to some defect in the election itself. The respondent will be suffering only on account of the mistake of the administrative machinery. We should refrain from producing a result which is obviously unjust.

I now come to what I regard as the most important question to decide in this appeal. My learned brother has ostensibly accepted this appeal on the ground that another remedy was open to the respondent which he did not pursue but truly speaking he has decided on the merits against the respondent. The implication of what my learned brother has said is that if a mistake like the present occurs the person concerned has no remedy at all. The mistake committed by the authorities con ducting the election proceedings is according to my learned brother just like any accident which may have happened and, therefore, the respondent should accept it as a misfortune, and forget about the election of the Chairman. After saying that the rules provide for the taking of oath in a subsequent meeting, a matter which I have already discussed, my learned brother says: "it is true that he would not have been able to participate in the election for Chairman, which is required to be held at once, but such may equally have been the result if he had fallen ill, or suffered an accident on the way to the meeting, and thus been prevented from attending. The accident in the present case appears to have been that a correction made by the District Election Officer was not entered in the list supplied to the Presiding Officer." My learned brother is further of the opinion as already observed that the Presiding Officer was not entitled at all to go into the question of identity, and that his plain duty was to act according to the list supplied to him. While dealing with the argument that the Presiding Officer did not make an enquiry as to the alleged corrigenda my learned brother has observed that he was not bound to make such an enquiry. With great respect I must express my dissent from these conclusions, I am of the opinion in the first place that the Presiding Office was empowered as well as bound to make an enquiry as to identity. Let me first take up the question as to whether he was empowered at all to make an enquiry. Was it his duty simply to put a question to the persons present with reference to the list of members supplied to him and to administer oaths only to those who answer in the affirmative or is it that he could make some summary inquiry in order to discharge his function. The proposition that he was not to make any inquiry at all will not be easy to support. Suppose two persons came before him and each of them claimed to be the member mentioned at a particular place in the list supplied to him. Would he not to have made any inquiry as to which of them was the member who was entitled to be administered an oath Of course the enquiry he makes, will have to be such summary enquiry as the circumstances permit but it could not be said that he had no power at all to make an enquiry. The next question to be asked is: was he confined in his enquiry to the list supplied to him by the Office of the District Election Officer. I have already observed that this list finds no place in the rules If a statutory list was provided there could be an argument that he was bound by it and it had to be corrected though even in that case he will have to consider whether in fact it had been corrected. His duty under rule 7 was to administer oath to "members" not to persons mentioned in a list supplied by the Office of the District Election Officer. As a matter of fact he does not) say he could not make an enquiry and he had been making enquiries in this case. He accepted that if the notice of meeting had been properly corrected that is if the correction had been initialled then he would have been prepared to administer an oath to the respondent. The list before him was only an information supplied to him. Even the list of corrigenda which he received was not any statutory list. He was prepared to act on the corrigenda. If by looking through the list and the corrigenda he was not making any inquiry as to who were the persons entitled to be administered an oath what other name can be given to that process

A Presiding Officer has to administer an oath of office in accordance with rule 7 to ‑the members. He has to find out who the members are. For this purpose he would get a list from the Office. If there is any corrigenda he would get hold of that corrigenda and if there be any difficulty either on account of some slip or omission or on account of some dispute as to identity be would have to solve that difficulty though in a summary way. He could not just stick to the wording of the list supplied to him. The next question to consider is whether the Presiding Officer was bound to make an enquiry. My learned brother says he was not bound to make one. I as the question: suppose in C this case he had in fact inquired from the Office of the District Election Officer ask to whether a correction had been made and he had found that in fact the correction had been made and he had administered an oath to the respondent and the respondent had then been elected Chairman could Imtiaz Ahmad appellant have attacked the election on the ground that this inquiry by the Presiding Officer was illegal and oath should not have been administered to the respondent I do not think any person will go to the extent that the administration of oath to the respondent would in these circumstances be illegal, but then see the result. It just depends upon the whim of the Presiding Officer to permit or not to permit the election of the respondent as Chairman (assuming the respondent had majority of votes). If the Presiding Officer chose to be kind to the respondent then he could make an enquiry from the Office of the District Election Officer, verify that there is correction, and administer an oath to him, and if he chose he could refuse to make on enquiry from the Office of the District Election Officer and refuse to administer an oath to him with the result that he would be prevented from becoming a Chairman. In either case the action of the Presiding Officer would not be open to any objection. If he permitted the respondent to become a Chairman the appellant could not object and if he did not allow the respondent to become a Chairman the respondent could not object. The Presiding Officer would then be the Great Mughal with a vast discretion which nobody could interfere with. He could harm or benefit a person at his own sweet will with no objection as to his conduct. That a person who is entrusted only with the simple duty of administering an oath should have vast and plenary powers of harming or not harming a person is not an interpretation of the law which is acceptable to me. I would hold that he was bound to make an enquiry. Of course the enquiry could only be a summary one. He was not to record any evidence and then come to a decision. But a summary enquiry he was bound to make if it could reveal whether in fact there was a corrigenda or whether the correction in the notice was authentic. He failed in his duty when he did not make the inquiry. I have not found good faith in him, but there is in any case a clear disregard of duty. I refuse to accept a state of law where officers can in the discharge of their duties, according to their own whim or arbitrary discretion, cause or not cause harm to persons concerned. With respect to what I regard as the proper attitude of the Presiding Officer in this case I would go a step further. Assuming that as yet a correction had not been made I think the proper course for the Presiding Officer if he thought he could not administer an oath to the respondent without a correction was to have a correction made. There was not the slightest doubt that the respondent was the person who had been elected. A slight clerical mistake had been made in his description. As he was a member he was according to the relevant rules entitled to be administered an oath and to be installed in his office. If the Presiding Officer found that before he could administer an oath to the respondent the name of his father should be corrected he should have just told the District Election Officer that there was a clerical mistake which stood in his way and that it should be corrected. This is my conception of the functions of a public officer. He is not to govern but to serve and he has to discharge his duties in a manner most consistent with the proper administration of justice.

I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of o administration of justice on which our own is based may be to certain extent technical but we are not to take from that system its defects. Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent. The ideal must always be a system that gives t every person what is his.

I am unable to place the mistakes committed by the Admi nistration on the same footing as mere accidents. The difference is that in one case the harm caused to a party being the result of a mistake committed by the Administration there is an obligation on our part to undo it as far as that is possible. There is no such obligation in the case of an accident. In relation to Courts there is a well-known saying that the act of Court will not prejudice anybody. I do not see why the principle of this maxim does not apply to the whole machinery of the Admi nistration of which the Courts are only a part. No mistake committed by this machinery should prejudice any person as far as that can be helped. If the mistake of the election authorities is like a misfortune why are elections set aside on the ground of irregularities committed by the officers who conduct the elections Why does not the law regard these irregularities like events, which have happened and cannot be helped It cannot be the intention of the law that rights of persons should be affected by the mistakes committed by public officers. I would not allow the respondent to be deprived of his right to be elected Chairman because of a slip by some person in the Office of the District Election Officer or by the refusal of the Chairman to see even the records of the Office of the District Election Officer. We must put the parties in the same position, as they would have been if no mistake had been committed by the administration as long as we can do that. Let them be prejudiced by their own misfortunes by all means but not by our acts. I say "our" because we too are a part of this administration.

Let me explain here that the right of a person who has in fact been elected does not depend on any determination by the. Presiding Officer as to whether he is or he is not a member of the Union Council. He has an absolute right to assumption of office and it is the duty of the election authorities to administer an oath to him. The Presiding Officer does not perform any judicial functions. If the Presiding Officer does not administer oath to a member there is a violation of the right of that member.

The approval of the action of the Presiding Officer by my learned brother means that in future also Presiding Officers should in a case where a similar mistake has been made by the election authorities refuse to make any enquiry as to the identity of a member and should refuse an oath to a person who is admittedly a member though a slight enquiry from the Office of the District Election Officer would show that the person concerned was a member, so that the injustice perpetrated in the present case would be only the beginning of a large number of similar acts of injustice.

I would hold that the respondent was illegally refused the assumption of office of member of Union Council. I would grant a mandamus for his restoration to his office with a direction that the election of the Chairman be held afresh. I would leave the parties to bear their own costs.

In accordance with the view of the majority, we set aside the order of the High Court and recall the writ issued by it. We make no order as to costs.

A. H. Writ recalled.

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