ABDUL SHAKURUL SALAM, J.-Respondent No. 1, Din Muhammad and respondent No. 3, Noor Elahi filed nomination papers for special interest seat of peasants in the Union Council Mandiala Toga, Tehsil & District Gujranwala which were accepted by the Returning Officer. Respondent No. 1 filed a revision petition before the Deputy Commissioner saying that Noor Elahi was a Tonga-driver and not entitled to represent the seat. This was accepted oh 2d-10-1981. On 27-10-1981, Noor Elahi put in an application to the Deputy Commissioner saying that the order had been obtained by misrepresentation, etc. Before this could be disposed of, Noor Elahi having been ousted from the arena by the order of the Deputy Commissioner dated 24-10-1981 and Din Muhammad remaining the sole candidate the latter was declared elected as unopposed. Notification to this effect was issued on 28-10-1981. When Noor Elahi's application dated 27-10-1981 was taken up by the Deputy Commissioner, he came to the conclusion that the order had been obtained from' him on 24-10- 1981 by misrepresentation, production of forged documents and tampering with the official record.
However, he did not grant any relief to Noof Elahi in the matter of election by advising him to seek redress from appropriate forum. This is dated 31-10-1981. The two petitioners who are members of the Union Council have filed the above-titled Constitutional petition in the nature of quo warranto challenging the authority of Din Muhammad to hold the office and act as such, including his participation in the ensuing election of the Chairmanship of the Union Council.
2. It . Was contended that Din Muhammad, respondent No. I had procured his unopposed election by obtaining an order from the Deputy Commissioner on a revision petition vide order dated 24-10- 1981 when no petition lay before the Deputy Commissioner, nor, did he have any jurisdiction to pass the said order. He having committed fraud on the Deputy Commis--sioner, as the latter had himself found vide his order dated 31-10-1981, he is not entitled to derive any benefit of his own fraud and, consequently, has no right to act as elected member to participate as such in the election of the Chairman to be presently held. The petition was admitted for regular hearing and as regards interim relief, the matter was posted for today.
3. Learned counsel appearing for the petitioners has reiterated the submissions and referred to Mian Arif IIftikhar v. Election Tribunal, West Pakistan and another (1) to contend that the petitioners are entitled to interim relief in so far as that the respondent No. 1 Din Muhammad be restrained from acting as a member of the Union Council, or, exercising the powers of the office and that this Court has the jurisdiction to grant such a relief.
4. Learned counsel appearing for Din Muhammad, respondent No. 1, has submitted .That as far as the respondent No. 1 is concerned he was eligible to contest the election and if his opponent Noor Elahi has been ousted from the contest on the ground that the latter was ineligible to contest and the said respondent No. 1 Din Muhammad was elected unopposed, after the notification of such a declaration Din Muhammad is holding public office under a legal warrant, and is entitled to exercise the powers of his office and participate in its functions, including that of choosing a Chairman. He has, further, contended that in election matters, no interim relief is to be granted restraining an elected member from performing his functions because that will create vacuum and difficulties for performance of public duties by public representatives. The learned counsel referred to Rameshwar Das v. Yakin-ud--Din Khan and another (2), E. M. Gopalakrishna Konar v. A.
Vdanga Konar and another (3) and Shamsuddin Ahmed v. Charu Chandra Biswas and others (4) for the preposition that elected members were not restrained from performing their duties on the motion of their opponents who were asking for interim injunction before the final conclusion of the controversy.
(1) PLD 1968 Lah. 1387 (2) AIR 1524 Lah. 633
(3) AIR 1932 Mad. 132(4) AIR 1934 Cal. 621
5. The learned Assistant Advocate-General has also submitted that in view of the notification of respondent No. 1 declaring him to be elected, the latter is entitled to function until the matter is finally adjudicated upon.
6. The petitioners, members of the Union Council like any relator, can challenge the holding of a public office by way of a Constitutional petition in the nature of quo warranto and ask for a decision as to whether an elected member like the respondent No. 1 can hold office if his election be based on fraud or misrepresentation. In point of fact, however, the contest was between Din Muhammad respondent No. 1 and Noor Elahi, respondent No. 3, both seeking to be elected from the peasant seat and the respondent No. 1 got his opponent respondent No. 3 thrown out of the arena by obtaining an order from the Deputy Commissioner and thus got himself elected unopposed.
Noor Elahi, respondent No. 3 had not come forward as against Din Muhammad, respondent No. 1 to challenge the proceedings. The same result of the respondent No. 1 Din Muhammad being elected as unopposed, could have come about if Noor Elahi had otherwise withdrawn in his favour from the contest either for consideration or otherwise and if there were no contestant, Din Muhammad being the only nominated person, would get elected. Therefore, how and in what manner Din Muhammad has got himself elected, is a matter which is distinct and separate and can be deter-- mined in other forum or final decision by this Court .In the present proceedings. At the moment, he (Din Muhammad) is a duly notified member of the Union Council. Except as regards what he did to his opponent, there is no inherent inelegibility in the respondent No. 1 to hold office. By his exercising the powers of that office, the petitioners cannot be said to suffer an irreparable loss or grievous injury. The hot contest has come about because there is going to be an election for the Chairmanship tomorrow. There is no way of saying that the participation of the respondent No. 1 will materially affect the result of the election tomorrow. It is equally possible that it may not do so at all either by defeat of his chosen candidate, or, the latter getting overwhelming majority without making his (Din Muhammad's) vote any difference. Result of elections like that of writings in destiny are unpredictable and uncertain. Therefore, it cannot be said that the petitioners will suffer irreparable loss or grievous injury if the respondent No. 1 performs his functions as a member of the Union Council. The judgment referred to by the learned counsel for the respondent No. 1 make it quite clear that elected office holders are not to be restrained from performing their functions without final judgment and no interim injunction should be issued. The judgment referred to by the learned counsel for the petitioners lays down that the High Court in exercise of its jurisdiction under Article 98 of the Constitution has the power to grant an interim relief pending final adjudication.
There is no qualm with the preposition that the High Court has the jurisdiction if the circumstances of the case or the law, warrant or demand that an interim injunction should be issued. In the circumstances of the case, we are not satisfied that the petitioners are entitled to an interim relief restraining the respondent No. 1 Din Muhammad from exercising the powers and performing the functions of the office for which he has been declared as elected. They will suffer no irreparable loss or injury. On the other hand, restraint order against respondent No. 1 will leave the special interest seat un-represented and the Union Council as a whole will suffer irreparable loss of a member who is to speak for a special constituency. Therefore, we are of the view that no interim order is called for. Therefore, C. M. No. 1/81 is rejected but in the circumstances the parties shall bear their own costs.