K. E. CHAUHAN, J.--This judgment will dispose of two writ petitions bearing Nos, 69 of 1971 and 1642 of 1970.
2. Election to the National Assembly Seat No, N. S. 42-IV Sargodha was held on 7-12-1970. Babu Karam Bakhsh respondent No, 1 was a candidate in that election but his nomination paper was objected to by his rival candidate Malik Mubammad Anwar Khan Tiwana on the ground that the respondent was disqualified on account of the provisions of Article 9 (2) (h) of the Legal Framework Order of 1970, inasmuch as, he had a share or interest in a contract with the firm of which he was a member, had taken in the form of leaies/Licenses from the Government under the Pakistan Mining Concession Rules, 1960, framed under the Regulation of Mines and Oil Fields and Mineral Development (Federal Control) Act XXIV of 1948. This objection was overruled by the Returning Officer who passed a short order on 17-7-1970, which reads as follows:-- "Mr. D. M. Awan has objected on the Nomination Paper of Babu Karam Bakhsh that he has entered into a contract with the Government signed by the Director, Mineral and Development Corporation on behalf of the Government and as such he is disqualified to contest the election under Article 9 (2) (h) of the Legal Framework Order, 1970.
Babu Karam Bakhsh has stated before me that he is one of the partners of the Firm `M/s. Malik Karam Bakhsh & Company' and that he has only taken a lease of Mine from the Director, Mineral and Development, Government of West Pakistan and as such objection is not based on facts. The lease deed signed by Malik Karam Bakhsh on behalf of the Firm cannot be considered as a contract. As such the objection is overruled and the Nomination Paper is accepted."
Thereafter, the polls took place in which respondent No, 1 secured the highest number of votes and was declared a returned candidate under section 39 (4) of the National and Provincial Assemblies (Elections) Ordinance XXII of 1970. The rival candidate Muhammad Anwar Khan Tiwana filed a Writ Petition No, 1642/1970 challenging the election of the contesting respondent. During the pendency of that writ petition, on 304-1971 he then filed an election petition under section 50 of the Ordinance, where he inter alia, raised the same points on which he had filed the writ petition. Haji Muhammad Siddiq who claims to be a voter in a ward of the Constituency concerned had, however, filed the present writ petition on the same subject praying as follows:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to require respondent No, 1 to show that he, being disqualified under Article 9 (2) (h) of the Legal Framework Order, 1970, under what authority of law, claims to be elected and to be a Member of the National Assembly of Pakistan from Seat No, N. W.-42-1V Sargodha and further declare his election to be without lawful authority and of no legal effect.
It is further prayed that pending decision in the writ petition, respondent No, I may be restrained from assuming seat in the ensuing session of the National Assembly of Pakistan.
It is also prayed that respondent No, 4 may kindly be directed to send the complete record of the contracts of Coal Mines No, PL-35/218, PL-35/382, PL-53/386 and PL-53/387 to this Honourable Court.
3. Learned counsel for the parties have raised some Interesting and important points in the case to which we are presently adverting.
4. The first objection raised by Mr. Batalvi was that since there exists an adequate remedy of an election petition, therefore, the present writ petition is not maintainable, especially, in view of section 50 of the National and Provincial Assemblies (Elections) Ordinance XIII of 1970, where it was written, that "No election shall be called in question except by an election petition made by a candidate for that election. " He submitted that the scheme of the said Ordinance, as evident from subsection (3) of section 64, was that from the decision of the Election Tribunal, an appeal was provided to this Court and from that point of view also the law should not be allowed to be circumvented and direct attacks on elected members should not be allowed to be encouraged in the form of writ petitions. Another argument raised was that a right of franchise was not a Common Law right but was a creation of the Statute and from that point of view it could be exercised by those whom the Legislature allowed it to exercise. The precise argument was that since in section 50 aforesaid it was only a candidate at the concerned election, who had been given a right to call the said election in question and that too by a petition therefore, no body else could challenge an election in any indirect form. These contentions in our opinion are no bar to the filing of an appropriate application under Article 98(2)(b)(ii) of the late Constitution of 1962, and the point seems to be concluded by a recent judgment of the Supreme Court reported in Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore , where at page 113 it was so held by Hamoodur Rahman, C. J., with whom the other learned Judges agreed, in the following words :-- "The question however, is whether, even so, a pre-election disqualification can be questioned under Article 98. It has been strenuously contended on behalf of the respondent that once the name of the person has been registered on the role of electors, his nomination paper accepted and he has been allowed to contest the election successfully, his election cannot be challenged in any other manner save under the specific law providing for challenging elections, notwithstanding the fact, that no provision has been made in the Constitution or any other law, for prescribing a special procedure to meet such a case.
I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not,1 a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available precisely for such a purpose." In Article 171 of the late Constitution it was laid down that "provision may be made by law for other disputes arising in connection with such an election to be finally determined by a tribunal established for that purpose, and no dispute arising in connection with such an election shall be decided otherwise than under such a law, and the validity of such an election shall not be called in question except in accordance with such a law." Attending to this provision of law in the said case it was held as follows : - "In my view, therefore, Article 171 of the Constitution of 1962 did not and could not bat a proceeding under sub-clause (b) (ii) of clause (2) of Article 98 for challenging the title of the disqualified persons from continuing to hold the office of a Member of the National Assembly which was in every sense of the term a public office."
In an earlier paragraph, the learned Chief Justice held as follows:-- "In this view of the matter it cannot also be said that there was any adequate alternative remedy available within the meaning of clause (2) of Article 98 of the Constitution of 1962 to defeat the right given by sub-clause (b) (ii) of clause (2) of Article 98 to call upon any person holding or purporting to hold a public office to show under what authority of law he claims to hold that office.
To refuse the remedy in such a case, would produce the strange result that the Court would be thereby perpetuating an illegality."
What has been written above is a sufficient answer to the preliminary objection which was raised by the learned counsel for the contesting respondent and the same is thus overruled with the observation that in cases of inherent pre-election disqualification, an appropriate petition in the nature of quo warranto under Article 98 (2) (b) (ii) of the late Constitution may be instituted at the instance of a person other than a contesting candidate depending upon the facts and the circumstances of each individual case. What are the circumstances in which such a petition may also fail, have been noticed in pares. 11 and 12 of this judgment, where due effect has been given to the principle relevant in the context of the peculiar facts of this case.
5. The second preliminary objection raised by the learned counsel for the contesting respondent was that in Article 98(2)(b)(ii) it was written that on the application of any person a High Court may make an order: "requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
It was submitted that this provision contemplated such situation where the respondent was "holding or purporting to hold a public office." It was urged that in Article 12 of the Legal Framework Order, 1970 it was laid down as follows:-- "12. Oath of members of Assembly.--A person elected as a member of an Assembly shall, before entering upon the office, take and subscribe, before a person presiding at a meeting of the Assembly, an oath or affirmation in the following form, namely:-- I, . . . . do solemnly swear (or affirm) that I will bear true faith and allegiance to Pakistan and that I will discharge the duties upon which 1 am about to enter honestly, to the best of my ability, faithfully in accordance with the provisions of the Legal Framework Order, 1970, the Law and rules of the Assembly set out in that Order, and always in the interest of the solidarity, integrity, well-being and prosperity of Pakistan."
The argument raised was that so long as the oath contem-plated in the above Article was not taken, a member-elected, could not be called as holding or purporting to hold the public office of the seat of a National Assembly. Apart from the wording of sub-Article 2 (b) (ii) of Article 98 of the late Constitution support for this proposition was sought from the following passage occurring in Halsbury's Laws of England, (3rd Edition), Volume 11, paragraph 277 at page 147, which reads as follows:-- "277. Possession of office essential.--An injunction can be granted only if the person has acted in the office. An information in the nature of quo warranto did not lie unless the Court was satisfied that the person proceeded against had been in actual possession and user of the particular office in question. A mere claim to be admitted to the office was not sufficient; there had to be a possession or user as well as a claim. Whether particular acts constituted a user of an office was a question of fact, but there was a sufficient user of the office to enable an information to issue if the steps necessary to constitute admission to the office had been taken."
6. The legal proposition which has been propounded by the learned counsel for the contesting respondent calls for no comments, but the point to be seen is as to whether in the instant case the contesting respondent can be called as holding Or purporting to hold the public office of the seat of the National Assembly. For this purpose, we may refer to certain provisions of the Legal Framework Order (hereinafter called the L. F. 0.) and the relevant provisions of the National and Provincial Assemblies (Elections) Ordinance of 1970 (hereinafter called the Ordinance). Article 4 (i) of the L. F. 0. states that there shall be a National Assembly of Pakistan consisting of 313 Members of whom 300 shall be elected to fill general seats and thirteen to fill seats reserved for women. Article 4 (2) states that in conformity with the population figures appearing in the Census of 1961, the number of seats in the National Assembly shall be distributed amongst the Provinces and Centrally Administered Tribal Areas, as set out in Schedule I. Article 6 (1) says that except as provided in clause (2), the members shall be elected to the general seats from territorial constituencies by direct election on the basis of adult franchise in accordance with law. According to Schedule I of L.
F. 0. 82 seats in the National Assembly are earmarked for the Province of Punjab. According to Article 8 of the Delimitation of Constituencies Order No, 3 of 1970, the "Delimitation Commission" was to divide each Province into as many territorial constitutencies as the number of such seats set out in column 2 of the entry in Schedule I for that Province. In pursuance of the aforesaid provisions of law, the Constituency involved herein was created and was termed as N. W. 42-IV Sargod ha. Under section 12 of the Ordinance, any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency. The scrutiny was to be made under section 14 and after polls the result was to be declared under section 39 which reads as follows:-- "39. Declaration of results.--(1) The Returning Officer shall, after obtaining the result of the count under section 37 or of the drawal of the lot under section 38, declare by public notice the contesting candidate who has or is deemed to have received the highest number of votes to be elected.
(2)The public notice shall contain the name of, and the total number of votes received by, each contesting candidate.
(3)The Returning Officer shall, immediately after publi-cation of the notice under subsection (1), submit to the Commission a return of the election in the prescribed form together with a copy of the consolidated statement.
(4)The Commission shall publish in the official Gazette the name of the returned candidate."
In section 50 (1) of the Ordinance, it is laid down that:-- "No election shall be called in question except by an election petition made by a candidate for that election."
In section 65, it is stated as follows:-- "65. Ground for declaring election of returned candidate void.--(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that--
(a) the nomination of the returned candidate was invalid; or (b)the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or (c)the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d)a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2) The election of a returned candidate shall not be declared void on the ground-- (a)that any corrupt or illegal practice has been committed if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or (b)that any of the other contesting candidates was, on the nomination day, not qualified for, or was disqualified from, being elected as a member."
Section 66 reads as follows:-- "66. Ground for declaring a person other than a returned candidate elected.--The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected."
All the material reproduced above will show that a person elected has been termed at various places in the Ordinance as a returned candidate. We are now to see as to what is the status of such a returned candidate.
7. In Article 11 of the L. F. 0. it is written as follows:-- "Resignation etc.--(1) A member may resign his seat by notice in writing under his hand addressed to the Speaker.
(2)If a member is absent from the Assembly without leave of the Speaker for fifteen consecutive sitting days, his seat shall become vacant.
(3)If a member fails to take and subscribe an oath in accordance the Article 12 within a period of seven days from the date of the first meeting of the Assembly after his election, his seat shall become vacant: Provided that the Speaker or, if the Speaker has not been elected, the Commissioner, may, before the expiration of the said period, for good cause shown, extend the period.
(4)A person elected to be a member who wishes to relinquish his seat before the first meeting of the Assembly may resign his seat by notice in writing under his hand addressed to the Commissioner."
In Article 9 of the L. F. O., it is written that, "if any question arises whether a member has, after his election, become subject to any disqualification, the Commissioner shall place the question before the Election Commission and, if the opinion of the Commission be that the member has become so subject his seat shall become vacant." Article 10 (2) of the L. F. O. lays down:-- "Nothing in clause (1) shall prevent a person from being at the same time a candidate for election from two or more constituencies, but if a person has been elected as a member for two or more constituencies and does not, within fifteen days of the notification of his election by the constituency by which he has been elected last, make a declaration in writing under his hand addressed to the Commissioner specifying the constituency which he wishes to represent, all his seats shall become vacant, but so long as he is a member for two or more constituencies he shall not sit or vote in an Assembly."
Coupled with this is Article 6 (3) of L. F. O. which states that:-- As soon as practicable after the general election of members of the National Assembly, the members from a province for the seats reserved for women in that assembly shall be elected by persons elected to the general seats from that Province in accordance with law.
This may be read with section 49 (2) of the Ordinance which states that:-- "The members for seats reserved for women in an Assembly shall be elected, subject to the provisions of clauses (3) and (4) of Article 6 of the Legal Framework Order, 1970, by persons elected to the General seats in that Assembly so that there is one member for each of the constituencies for seats reserved for women in that Assembly."
In Article 19 of the L. F. 0., it is written that:-- "The speaker, the Deputy Speaker and the other members shall be entitled to such allowances and privileges as the President may, by order, prescribe."
If all these and other allied provisions are kept in view the following corollaries follow- (i)that a seat in an assembly is a public office which is a creation of the Statute; (ii)it is to be filled up by the electors of the Constituency concerned; (iii)who are to elect a duly qualified person to be a member for that Constituency (See section 12 of the Ordinance); (v)the procedure is that after the election, the Returning Officer is to, "declare by public notice the contesting candidate, who has or is deemed to have received highest number of votes to be elected thereafter, the Election Commission shall publish in the official Gazette the name of the returned candidate; (vi)a contesting candidate who wants to challenge the said election can file an election petition under section 50 of the Ordinance within forty-five days of the aforesaid publication in the official Gazette (see rule 31 of the National and Provincial Assemblies (Elections) Rules, 1970;
(vii) the provisions regarding vacations of seats by registration or otherwise reproduced above show that so long as the contingencies mentioned in that respect do not take place, the returned candidate occupies his seat and it is only in the eventualities relevant in that behalf, that his seat becomes or falls vacant. This can happen even prior to the taking of oath. In the provisions hereinbefore mentioned such a seat has all along been referred to as his seat; and
(viii) that a returned candidate by virtue of his this status or office is to perform a public function of electing women candidates.
8. All these aspects lead us to hold that a returned candidate does occupy the seat from which he has returned and after the election the said seat is no longer vacant, but gets filled up and it can become vacant only in accordance with law herein-before referred to. The returned candidate by virtue of his such occupation of the seat, is to perform a public function to vote for an election of women members. He can, therefore, very safely be called to hold or purport to hold a public office of this peculiar nature. In Article 14 of the L. F. O. it is written as follows:-- "14. Summoning of National Assembly etc.--(1) After the close of the general election of members of the National Assembly, the President shall, for the purpose of framing a Constitution for Pakistan, summon the National Assembly to meet on such day and at such time and place as he may think fit; and the National Assembly so summoned shall stand constituted on the day of its first meeting: Provided that nothing in this clause shall be construed as preventing the President from summoning the National Assembly on the ground that all the seats of the members have not been filled.
(2)After meeting as convened under clause (1) the National Assembly shall meet at such times and places as the Speaker may decide.
(3)The National Assembly shall, subject to reasonable adjournments, meet from day to day to transact its business."
It appears to us that the "constitution of the National Assembly" or "the date of the constitution of the National Assembly", are concepts quite separate from the point as to whether a returned candidate can be said to hold a public office for the purposes of performing the limited functions relevant to that status. A returned candidate as the definition in section 2 (xx) of the Ordinance shows is a candidate who has been declared elected as a member. So long as that declaration stands, he occupies the relevant seat and can perform such functions which the law may allow him to perform in that limited capacity. If this interpretation is accepted, then a High Court will be well-within its competence to scrutinise the credentials of such a person and if a proper case is made out may stop him from becoming a full-fledged member and from taking an oath and in this way may stop the happening of an illegality. On the contrary the interpretation put by the learned counsel for the contesting respondent will lead to prolong and perpetuate the illegality which, in our opinion, should not be encouraged. The position is analogous to an appointment order which appoints a person to an office from the date of its issue though it allows some joining- time to the appointee. If the seat was not occupied why the Legislature, in various places, called it as "his seat" or use the phrase as resignation from his seat or his seat becoming or falling vacant etc. All this shows that a returned candidate is a holder and occupier of the relevant seat, and that a declaration that he is a returned candidate, is a step sufficient to enable him to embark upon and use the said office by taking an oath or act otherwise wherever so permitted. Again there is a difference between holding and occupying an office on the one hand and entering upon the duties of that office on the other hand. Lastly, the phrase, "purporting to hold", as used in Article 98(2)(b)
(ii) can, in our opinion, be aptly used and invoked in situations of the present type; because if that were not so, then the High Court will never be able to scrutinise the credentials of usurpers of offices because they will always come up with the pleas that they do not strictly hold the office. In any case the objection raised is no bar on the part of this Court to examine the validity of issuing an injunction to restrain the respondent from embarking upon the "claimed office". In support of the view which we have taken regarding the concept of holding or purporting to hold office as used in Article 98 of the Constitution we may refer by way of analogy to a passage occurring in the judgment of Das, J., In re : Banwarilal Roy and others where the question was as to whether one Mr. Nomani, who after the supersession of Howrah Municipality had been authorised to exercise and perform all the powers and duties which by or under any law for the time being in force be exercised and performed by or on behalf of the Chairman and the Commissioners of the Howrah Municipality during the period of supersession. The objection was that since--(till the debate of the question)--he had not been appointed as the Chairman or a Commissioner of the Howrah Municipality he did not claim to hold any office and the position which he held was not an "office".
The argument was repelled in the following words in para. 49 of the judgment at page 805 which reads as follows:-- "49. The learned Advocate-General frankly stated that he could not say that the office of Chairman or that of a Commissioner is not an 'office' in respect of which proceeding by in formation in the nature of quo itarronto might lie. His argument was that here there had been no usurpation of any `office' for Nomani had not been appointed as the Chairman or a Commissioner of the Howrah2 Municipality and he did not claim to hold any such office. The position he held was not an 'office'.
This argument to my mind takes a very narrow view of the term 'usurpation.' The order of appointment under clause (7) of rule 51-F can only be made consequent on the order of supersession under clause (6) of that rule. There can be no order under clause (7) before an order under clause (6) is made. In this case the two orders were made together. They were made by the same notification. There was one common recital at the top. The duration of Nomani's appointment is co-extensive with the duration of the supersession. The duties of Nomani are to exercise and perform all the powers and duties which may, by or under any law for the time being in force, be exercised and performed by or on behalf of the Chairman and the Commissioners of the Howrah Municipality. In the facts and circumstances of this case I cannot see how it can be said that there has been no usurpation of the office of the Chairman and those of the Commissioners. In my judgment the circumstances that Nomani has not been given or has not assumed the name of the office makes no difference in substance at all. The usurpation, so far as the Chairman and the Commissioners are concerned, has been as effective and as complete as it would have been if Nomani had assumed the name. After all, what is in a name? If the function is usurped, the office is usurped. There is also authority that even if a wrongful claim is made to an office which does not exist or if a new office is set up, an information in the nature of a quo warranto may lie. See the cases of R. v. Geo Price Lloyd (1860) 2 L T N S 232 Lloyd v. The Queen (1862)2 B., & S 656 and R. v. Boyles (1795) 2 S tr. 836. Therefore, the position that has been conferred on Nomani and which he has assumed, apart from the office of Chairman or Commissioner, may by itself be regarded an 'office' which he has arrogated to himself."
In the above case it was held that the position which had been conferred on Nomani and which he had assumed apart from the office of the Chairman or Commissioner may by itself be regarded as an office which he had arrogated to himself. Applying the same principles to the facts and circumstances of the present case,' the status of a returned candidate can be held to be an 'office'
E of its own pecularities examinable in an appropriate writ petition by the High Court.
9. This brings us to the next contention of Mr. Batalvi. The relevant law which is being invoked by the learned counsel for the petitioner is contained in Article 9(2)(h) of the L. F. 0. which reads as follows :- "9(2) A person shall be disqualified from being elected as, and from being, a member if-
(h) he, whether by himself or by any person or body of person in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society any Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government: Provided that .................................
The analogous law was contained in Pakistan in section 116 of the Representation of the People Act XXXI of 1957. In India the corresponding law was contained in section 7(d) of the Representation of the People Act XLIII of 1951, which presented some practical difficulties and was later on amended from time to time. See "Objects and Reasons" at page 1028 of the A. I. R. Manual of the Unrepealed Central Acts (Civil and Criminal) (2nd Edition), Volume 13. In England, the corresponding provision is the House of Commons Disqualification Act, 1872 as subsequently amended from time to time.
With reference to, all this material, it was suggested to us by the various learned counsel appearing in this case that the words "any contract" as underlined* above were mistakenly used twice and that probably the real intention was to use the words "any works" as was the case in the analogous law hereinbefore referred to. We need not enter into the controversy in the face of the order which we are going to pass in this case. At this juncture, we may here refer to two further provisions of the L. F. 0. which are relevant from our point of view. The first is sub-Article (4) of Article 9, which has already been reproduced earlier. The other provision is Article 27 which reads as follows:-- "27. Interpretation and amendment of Order etc.--(1) Any question or doubt as to the interpretation of any provision of this Order shall be resolved by a decision of the President, and such decision shall be final and not liable to be questioned in any Court.
(2) The President and not the National Assembly shall have the power to make any amendment in this Order."
10. On factual plane, it is argued by the learned counsel for the petitioner that the contesting respondent is a Managing Director and partner of a registered firm known as "Messrs Malik Karam Bakhsh & Company". This firm allegedly holds a licence and leases the particulars of which are as follows :- S. No,NumberNature Particulars
(a) PL 53/218Lease It is 30 years lease over an area of 789.25 acres in Tehsil Khushab, District Sargodha with effect from 26-3-1951 up to 25-3-1981. It was superseded by Lease No, 53/ 386 mentioned at item No, (ii) here.
(b) 53/386 Lease It superseded earlier lease No, 53/218. It is with regard to an area of 1421.35 acres which includes the previous area. It is for 13 years and 8 months from 26-7-67 to 25- 3-1981.
(c) 53/387 Lease It is a lease for 1345.62 acres in Tehsil Khushab, Dis trict Sargodha for 30 years with effect from 1-2-1961 up to 31-1-1991.
(d) 53/382 License It is a prospecting license actually granted on 18-1-61 for one year and was renewed up to 17-1-1968 and its fur ther renewal is under con sideration though the firm is holding over this licence. It is with regard to an area of 516.75 acres in Tehsil Khushab, District Sargodha.
These leases/licenses have been granted to the firm aforesaid, under the Regulation of Mines and Oilfields and Mineral Development (Federal Control) Act XXIV of 1948. The standard form of Prospecting License is contained in Part I of the II Schedule, whereas the Standard Form of Mining Lease is in Part II of the Second Schedule, as annexed to Pakistan Mining Concession Rules, 1960 published in the Gazette of Pakistan (Extraordinary), dated 27-7-1960 at pages 1125 and 1141 respectively. There pro formas are to be read alongwith the aforesaid rules which were referred to us at length but we have no intention to go into all these details because of the view which we are going to take in this case, and it will be sufficient to state that the question which arises for consideration is as to whether the contracts contemplated in Article 9(2) (h) of the L. F. 0., also embrace the licenses or leases granted under the Pakistan Mining Concession Rules, 1960, which according to the learned counsel for the petitioner are in the form of statutory contracts. This is a question "as to the interpretation of a provision of this Order", and the point is, can this Court interpret the same, examine its scope and point out its extent and limitations while exercising jurisdiction in a petition for a writ of quo warranto under Article 98(2)(b)(ii) of the Late Constitution of 1962. Mr. Batalvi argued that if any petition depended upon the interpretation of any of the provisions of the L. F. 0., then since that was no more a function of this Court, that was a new fetter on the jurisdiction of the High Court in that respect, and though a petition for quo warranto may otherwise be competent but if it involved the interpretation of a provision of the L. F. 0., then that was not maintainable. This point by itself involves the interpretation of Article 27 which is as much a part of the L. F. 0., as any other Article contained therein, and it was suggested that even this Article could not be interpreted by this Court. As against this, learned counsel for the petitioner argued that the scope of Article 27 is limited in its nature and submitted that the bar of interpretation is not absolute. He referred to the provisions of the National and Provincial Assemblies (Elections)
Ordinance, 1970 and stated that under that provision of law, the Returning Officer was given a power to accept or reject a nomination paper. Against rejection of a nomination paper, there was provided an appeal, but in cases where it was accepted, the law had allowed the same to be challenged in an election petition before the Election Tribunal against whose decision an appeal was provided to the High Court. He argued that if the bar was so sweeping then how would the functionaries under the Ordinance function in a matter of present kind and on all such occasions the dispute will have to be resolved by the President which according to him could not be the intention of the law-giver. Sheikh Aftab Hussain learned Standing Counsel for the Central Government, Mr. M. B. Zaman, learned Advocate-General of the Province and Mr. Inayat Ali Shah a representative of the Election Commission whom we heard in this respect, stated that this Court could not interpret any provision of the L. F. 0., though they argued that so far as the working of the functionaries under the Ordinance was concerned, since that was promulgated by the same law- giver; who had made the L. F. 0., it should be considered that in that respect the President had delegated his functions to those functionaries. They further suggested that there was a difference between interpretation of the provisions of the L. F. 0., on the one hand, and the application of those provisions to the established facts and circumstances (where no question of interpretation was involved) on the other hand. They argued that the former function could not be performed by this Court though the latter could be. In the instant case, however, they suggested that both these jobs and functions were involved. The arguments on both sides are very attractive but we do not want to enter into the same or give our own findings or views on them and reserve them for some other occasion in a more appropriate case, because we think that the present writ petition can be disposed of on the grounds given in the following paragraphs of this judgment.
11. Jurisdiction under Article 98 of the Constitution is always discretionary and in appropriate cases, a High Court may refuse to exercise it. It is a common ground between the parties herein that to challenge election of the contesting respondent, an election petition has already been filed by his rival candidate, namely, Malik Muhammad Anwar Khan Tiwana, and the same points which are raised here occur in the said election petition. We notice that the aforesaid rival candidate has instituted an independent writ petition being W. P. No, 1642/70. The present petition is a verbatim copy of the said writ petition and in these circumstances the possibility of a collusion between the petitioner and the rival relator of the respondent cannot be ruled out. It is well-established that a High Court may refuse to exercise its discretion in appropriate cases. The relevant law is summed up in para. 281 at pages 148-150 of the aforesaid Volume 11 of the Halsbury's Laws of England and reads as follows:-- "281. Discretion of the Court.--An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The Court would inquire into the conduct and motives of the applicant, 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.
When, therefore, the title to a corporate office was in question, the Court, in accordance with these principles, would not grant leave to a relator to file a quo warranto information as a matter of course simply because a reasonable doubt as to the legal validity of the title was shown, but the Court would take into consideration the consequences which would be likely to follow should the information be granted, and also all the circumstances of the application. Thus, the Court would refuse to disturb the peace and quiet of a corporation by granting leave to file an information where to do so would be merely vexatious, as where there had been an irregularity in the election to the office which was without any material result, or which could not be shown to have been productive of harm. Again, where the circumstances of the application was 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. An information would not be refuse, however, merely because its effect would be to dissolve the corporation, or merely because a person, not a member of the corporation, had been furnishing the means of carrying on proceedings or merely because the application was a friendly proceeding."
12.The present case falls well-within the scope of this rule and is liable to be dismissed on that count as well as on the ground that since an election petition has already been filed and the matter is sub judice in that form, it is not just and fair to exercise our discretion so as to fetter the proceedings already competently instituted on the subject, specially, when the matter involves recording of evidence and determining intricate questions of fact and saw, a job which can more appropriately be performed before the Election Tribunal than in this Court.
13.The upshot of the above discussion is that the writ petition is dismissed. We will, however, leave the parties to bear their own costs.
14. Coming to this writ petition, it can be disposed of with a short observation that since the petitioner has, after filing it, instituted an election petition, under section 50 of the National and Provincial Assemblies (Elections) Ordinance, 1970, wherein inter alia, the point which is being urged here, has also been taken since the matter involves intricate questions of fact and law, which will require taking of evidence--(a function which should more appropriately be performed by the original form than this Court)--and also because from the judgment and order of the Election Tribunal an appeal under section 64 of the Ordinance is to ultimately come to this Court, therefore, we are not inclined to circumvent all that procedure--(which provides an adequate remedy to the petitioner)--so as to decide this matter here. It is a fit case where we would not like to exercise our discretion in favour of the petitioner. The writ petition is dismissed with no order as to costs. PLD 1970 SC 98 48 C W N 766