1. ' ABDUL HAYEE. KURESHI, C. J.-On the conclusion of the hearing of this petition, we had passed a short order, dismissing the petition, but with no order as to costs, the reasons for such short order presently follow.
2. ' The brief facts of the case are that petitioner Abdullah Hussain Haroon is a sitting Councillor of Karachi Municipal Corporation (which, for the sake of brevity, is hereinafter referred to as the Corporation). He was elected for a repeat term on 29-9-1983 in a general constituency. Abdus Sattar Afghani, the respondent No. 4, had also been elected as a Member of the Corporation from a general constituency in 1979, and thereafter he was elected as a Mayor of the Corporation. He, however, did not contest for a seat to the Corporation from any general constituency, but on 27-10- 1983, he filed a nomination paper against the reserved quota of seats for workers. Such nomination paper was filed before the Commissioner of Karachi, who was the Returning Officer (respondent No. 2). Elections to the reserved seats for workers was held on 30-10-1983, and respondent No. 4 was elected.
3. ' Subsequently, the- petitioner and respondent No. 4 contested in the election for the Mayor of the Corporation, and in such election, the petitioner was defeated and respondent No. 4 was elected. It was stated before us at the time of hearing that the respondent No. 4 obtained a sizable majority of over 29' votes in the Corporation House, consisting of 220 Members.
4. ' The original petition was submitted in this Court on 30-10-1983, which date had been fixed for the election of the Members of reserved seats, including workers. The prayers in the petition were for a declaration that the respondent No 4 could not contest the election on the reserved seat of workers, and both the Returning Officer and the Provincial Election Assembly had erred in failing to exercise jurisdiction legally and lawfully inasmuch as that they had not rejected the nomination paper of respondent No. 4, and also a general prayer that all proceedings in the elections concerning, or, arising out of the nomination of respondent No. 4 be declared null and void. On 30- 10-1983, the case was placed before a Division Bench of this Court, which had called for comments.
5. On 6-11..1981, the petition was admitted to regular hearing by a Division Bench of this Court.
6. However, on 10-11-1983, an amended petition was filed, wherein the recital of facts was slightly different from the original recital in the initial petition. It appears that, since comments had been received in this Court from the Provincial Election Authority, and the Returning Officer, the petitioner found it necessary to amend the petition. However, in the present petition, the prayer is couched in similar language.
7. ' The. Contention of the petitioner in the petition are that respondent No. 4 is not a worker within the meaning of clause (82) of section 3 of the Sind Local Government Ordinance, 1979 (which statute, for the-sake of brevity, shall hereinafter be referred to as the Ordinance), ' It is also contended that, besides such lack of .Qualification, the respondent No. 4 was suffering even from a disqualification, as he was enjoying such privileges and benefits as Mayor, which disqualified him from contesting the elections, as, by holding such post, he acquired personal financial interest. It is contended that the Returning Officer had acted wrongly by accepting, the nominal paper of respondent No. 4, and the Provincial Election Authority also acted with error in refusing to entertain the objections of the petitioner. It is also contended that the programme set out by the Provincial Election Authority for presentation of nomination papers, scrutiny, appeals against orders of Returning Officer in regard to nomination and voting for the reserved seats were al o illegal. It is, also stated that failure of justice bad been occasioned for the reason that no time and place for scrutiny of nomination papers had been fixed. It is even alleged that scrutiny did not take place, and that the objections to the nomination of respondent No. 4 were not heard by the Returning Officer, and that the Provincial Election Authority also had the power to review the orders of the Returning Officer in regard to acceptance of nomination paper; but, having failed to exercise that jurisdiction, they were in legal error.
8. ' During the hearing of the petition, a fact was stated before as by Mr. Naseem Farooqui, the learned Advocate appearing for the petitioner, and that was that the petitioner in person had visited the office of the Returning Officer on 27-10-1983, viz. The date for filing nomination papers.
9. The report of the Returning Officer indicated that the petitioner did appear before the Returning Officer, but only after the nomination paper of respondent No. 4 had been accepted. We wanted to know the reason for the petitioner's visit to the office of the Returning Officer, and, for such reason, we asked the learned Advocate for the petitioner to obtain a reply from the petitioner; who was present in Court, whereupon the petitioner made a statement before us that he had two purposes, underlying his visit to the Commissioner's office on 27-10-1983 ; one was to support some persons, who wete Contesting to the reserved seats, and the other was to object to nomination paper of respondent No 4. We recorded such statement in open Court, and signed the same. The same has been placed on record.
10. ' Comments of respondent No. I were submitted under the signature of Mr. M.
1. Farooqui, the Secretary of the Provincial Election Authority. It was admitted that the petitioner had filed an appeal before the said respondent against the acceptance of nomination, paper, but, reference has been made to sub-rule (5) of rule 55 of the Sind Local Councils (Election) Rules, 1979, and a statement has been made that an appeal lies only against the rejection of a nomination paper. It is sought to he stated by reference that, since the nomination paper of respondent No, 4 had been accepted, no appeal lay. In such context, it reads as follows "(5) Any candidate whose nomination paper has been rejected may file with the Returning Officer an appeal addressed to toe Election Authority before such time as may be specified by it Such an appeal shall be disposed of before such time as may be specified by the Election Authority, and any order passed on such' appeal shall be final."
11. ' It is also stated that the provision, which relates to the election for general seats, had to be adopted even for election to the reserved seats. This respondent has taken a stand that the appeal, which had been filed by the petitioner, challenging the acceptance of the nomination paper of respondent No. 4, was not legally competent, and, therefore, the respondent acted rightly in dismissing the same summarily. The respondent No I also stated that the programme set out by the Provincial Election Authority for election to reserved seats was properly drawn up and was in accordance with the law and rules. It may, at till stage,, be profitable to reproduce the said programme, for the same would show the time schedule for the submission of nomination papers and scrutiny thereof. Significantly, no separate date, or, time has been specified for scrutiny of the nomination papers, which would indicate that the scrutiny was to be a simultaneous process.
12. However, a note has been suffixed to the programme, which would indicate that the Returning Officer had to give notice. For inviting the nominations and giving separate date, time and place for the polls of each council and also the programme of scrutiny of nominations and withdrawal of candidature. Such programme made as follows "Programme Thursday Presentation of nomination papers before 27-10-1983.
13. Returning Officers and scrutiny of nomination papers by Returning Officers
2. Appeals against nomination papers address- Friday ed to Election Authority shall be pre- 28-10- 1983. seated to the Returning Officers on
3. Hearing and decision on appeals by Appel- Saturday late Authority at Karachi and with- 29-10-1983. drawal of nomination papers and publication of final list of candidates by the Returning Officers Voting by members of the Electoral Sunday College and announcement of result 30.10-1983 and Monday 31-10-1983.
14. ' Note.-The Returning Officers shall by notice invite nominations. Giving separate date, time and place for the pulls of each council and also the programme of scrutiny of nominations and withdrawal of candidature for such council."
15. ' The Commissioner of Karachi (respondent No 2), who was the Returning 'Officer, also submitted his comments on 2-11-1983. In regard to most of the averments contained in the petition, nothing specific was stated regard to the averment of the actual fact of scrutiny, and the objection raised 'by the petitioner in regard to the nomination paper of respondent No. 4 the Returning Officer has stated that, on the date fixed for filing of nomination papers, the petitioner did appear before the Returning Officer to enquire, whether objections against nomination of the candidates would be heard, and, if so, at what time, to which a reply was made that there was.No provision for hearing of objections in the rules, although the petitioner was also informed that the nomination paper of respondent No 4 had been found to be valid after due scrutiny.. Mr. Syed Sardar Ahmad, the Commissioner of Karachi, who was the Returning Officer, has also filed a counter-affidavit, and,':in the said counter-affidavit, which is fairly detailed fuller facts have been given. It is stated that, at the time of scrutiny of the nomination paper of respondent No. 4, the petitioner was not present at all ; nor did any person raise any objection in regard to the, nomination. It is stated that the scrutiny was carried out in the presence of such persons, who were present, and the nomination parer was accepted.' The affidavit further reads that, after considerable time, the petitioner appeared before the Returning Officer, when the scru tiny had been completed, and nomination paper had been accepted, and enquired, whether objection could be raised to the nomination of respondent No. 4, but he was, told that there was no provision in law for entertaining objections after scrutiny and acceptance of nomination paper. The allegation, that the nomination paper was accepted in a mechanical manner without due application of mind, is not correct, as due scrutiny had already been carried out. It is also stated that, on the basis of material, that had been placed before this respondent by respondent No. 4, in regard to the latter's eligibility to contest on a seat reserved for workers, this respondent was satisfied, and accordingly accepted the nomination paper. It has been denied in the said affidavit that any separate, or, distinct hours bad been specified, or, announced for the submission of nomination paper, or, for scrutiny of nomination papers. It is averred that the time of receipt and scrutiny was between 9-00 a. m. And 4-00 p. m. And, on receipt of each nomination paper, scrutiny followed in the presence of the candidate as well as such other persons, who were present, and raised any objection.
16. ' The respondent No. 3, viz. The Corporation, has also filed its comments, wherein it has been stated that the Corporation would not be concerned with the elections to reserved seats, which was the function of Returning Officer, or, the Provincial Election Authority. In regard to a disqualification attaching to respondent No. 4, on account of his obtaining some honorarium and allowances from the Corporation during his tenure of office as Mayor for the previous term, the Corporation has submitted in the comments that respondent No. 4 had been enjoying benefits and privileges under the Sind Councils Mayor and Chariman (Honoraria and Privileges) Rules, 1988. It is stated that respondent No. 4, by virtue of his office as Mayor in the previous term, had exercised a power of supervision, administration and control over the Corporation under section 48 of the Ordinance.
17. ' Respondent No. 4 has also filed several affidavits to contest the averments in the main petition, or, in the interlocutory applications. It is stated by him that the Returning Officer at the commencement of his work in relation to acceptance of nomination papers, publicly announced at 9-00 a. m. That, immediately on receipt of nomination papers, scrutiny would be carried out, and the order in regard to acceptance, or, rejection will be passed. It is stated that he had fixed time for such purpose from 9-00 a. m. To 2-00 p. And he was sitting in open ,Katchery, where he scrutinised the nomination papers publicly and passed orders after summary enquiry. It is stated that, while the respondent No. 4 remained present throughout the time with his group workers, the petitioner was not present when respondent No. 4 submitted his nomination paper at 10-30 a. m. And the scrutiny was carried out until 10-50 a. m. It is stated that, later on, the petitioner was found chatting with some of his workers in the compound of the office of respondent No. 2, but he entered the office room only at 2-00 p. m. It is stated by respondent No. 4 that no person objected to his nomination paper, and, since respondent No. 2 was satisfied with regard to the validity of the nomination paper, and the qualifications of respondent No. 4, the nomination was accepted, and thereafter no remedy was available either before respondent No. 2, or, respondent No. I to question the validity of nomination. It is stated, and indeed not controverted, tbat the petitioner did not file any objections in writing in regard to candidature of respondent No.
4. A statement has also been made in the counter-affidavit that the petitioner was not present at the time of submission of the nomination paper. Respondent No. 4 has also filed a photostat copy of his nomination paper, and the certificate appended thereto, together with a receipt given by respondent No. In token of having receiving the nomination paper, and these documents show that respondent No. 4 had delivered time nomination paper at 10-50 a. m. The column, wherein the date, time and place for scrutiny had to be mentioned, had been scored out. We may also state that respondent No. 4 has filed seven similar receipts given to seven other candidates for these reserved seats, and even in such receipts, such column, which was meant for insertion of the date, time and place for scrutiny had been scored out. On such premises, the respondent No. 4 seeks to set up a case that submission of nomination papers and scrutiny were simultaneous. Respondent No. 4 has also stated in his counter-affidavit that he was qualified for being elected from the reserved seat of workers, as he is an employee in a commercial establishment of Messrs Khan & Co. As a Shop Assistant, doing manual and clerical labour since 1950. He has gone on to state that, after being elected as Mayor in the previous terms, he had continued his service and had not joined any other vocation, or, profession. It is also stated by him that the post of Mayor is an elected post carrying honorarium, and by holding such post, the vocation of respondent as "worker" has not been affected. Respondent No. 4 has also placed on record a photostat copy of a certificate issued by, the Managing Partner of Messrs Khan & Co. On 16-10-1983 which states that the respondent No. 4 was working as Shop Assistant on, a salary of Its. 600 per month. It is also stated in the affidavit that this petition has become infructuous, as elections have already been held. In another counter-affidavit filed by respondent No. 4 to the main petition, it has been stated that an adequate alternate remedy was available, and that the matter involved enquiry into facts, which the High Court would rarely undertake in exercise of Constitutional Jurisdiction. It is also pointed out that this Court has generally been very slow in interfering with the process of elections, which are regulated by a special law, providing for all remedies, and that the case does not call for interference by this High Court.
18. ' Before we proceed to consider the points involved in this petition, we may make a brief reference to the affidavit-in-rejoinder filed by the petitioner on 26-11-1983. In this affidavit, the petitioner has stated that he had raised an objection to the nomination of respondent No. 4 at about 2.00 p. m.
19. On 27-10-1983, and it is also stated in the same breath that the nomination paper of respondent No. 4 had been accepted at 10-50 a. m. The petitioner, being conscious that the petition may not lie at his instance, as he was never contestant to the reserved seat for workers, stated, in this affidavit, that he had been authorised by one Ghulam Muhammad Chishti, a candidate for election to the reserved seat of workers, to appear and object to the nomination of respondent No. 4, and, therefore, the petitioner was aggrieved person. Alongwith this affidavit, the petitioner also produced a photostat copy of an inspection report made by a Labour Inspector of Shops and Establishments under the West Pakistan Shops and Establishments Ordinance of 1969. This certificate shows that the said Labour Inspector had visited . The shop on 19-11-1983, after the election, and found that two workers were engaged by Messrs Khan & Co. And respondent No. 4 was not shown as a worker. This document, we must straightaway state, has been prepared after the election.
20. ' Having stated the case of parties, we proceed to examine the respective contentions. The first contention, that deserves consideration, is in regard to maintainability of this petition. This point was raised by Mr. Khalid M. Lshaq, for respondent No. 4, and the remaining respondents have also adopted the same argument. Mr. Khalid M. (shag has stated that the nature of dispute in this case was an election dispute within the meaning of rule 65 of the Rules framed under the Ordinance, sub-rule (1) of the said Rule reads as follows :-
(1) No election shall be called in question except by an election, petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner)."
21. ' Mr. Khalid M. Shag has also referred to several other petitions disposed of this Court on the ground that the concerned matter was an election dispute, and therefore, the proper course for remedy was by way of an election petition. However, it would appear in the instant case that sub-rule (1) of rule 65 would not be attracted, because under this sub-rule an election can be called in question by an election petition only at the instance of a candidate for that election. Admittedly, the petitioner was not a candidate for election on a worker's seat, and therefore, he could not file an election petition. These elections were not elections to a general seat, so that any citizen could challenge the sane In fact, we are doubtful if the petitioner could have ever objected to the nomination of respondent No. 4 on the sole ground that the petitioner was not contesting that election.
22. ' There is, however, another facet to this matter. By permission of the Court, the petitioner was allowed to amend the petition, and an amended memo was actually filed on 10-4-1983. By this date, the -election of Mayor had also been held, and respondent No. 4 has been elected. The relief clause in the amended petition was substituted so as to seek a declaration that the election of respondent No. 4 as Mayor of the Corporation was illegal, and of no legal effect. There can be no dispute that, unless respondent No. 4 had been elected as a Member, he could not have been elected as a Mayor. In these circumstances, the petitioner could challenge the election of the respondent No. 4 as a Member, for it is well-established that, in matters of like nature, the very initial election to a House, from which the respondent No. 4 was elected as a Mayor, could be challenged. To that extent, the petitioner could file an election petition, challenging the election of respondent No. 4 as a Mayor, and all such objections in regard to election of respondent No. 4 as a Member of the Corporation could be agitated.
23. ' We shall also take note of the arguments advanced by Mr. Naseem Farooqui, the learned Advocate for the petitioner, in such context. The learned Advocate's main contention is that, in cases in the nature of seeking a writ of quo warranto, the doctrine of alternate remedy, barring Constitutional jurisdiction, cannot be pressed with any rigout. In short, the contention is that, despite the provision in the election rules which, we must say, are auks framed under a special law, a writ of quo warranto should be granted. Reference has been made to the case of Lt.-Col. Farzand Ali and others(1). Our attention was drawn to the following passage, appearing in the judgment :- "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 {{FOOT NOTE}}
(1) PLD 1970 SC 98 {{FOOT NOTE}} ' says that he cannot. Secondly, because, the dispute raised after an election is not, 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 right 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 arc 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 it' 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."
24. ' The learned Chief Justice set down the principle that a writ of quo wasrranto is invoked in public interest, and seeks determination of the title to hold an office as distinct from the validity of the election. The learned Chief Justice, thereafter, considered the aspect of disqualification, hut, in the last sentence, it was observed that quo warranto would lie, unless expressly barred by some statute. Notice was also taken of the English case Darley v. The Queen (t), wherein the dictum of Chief Justice Tindal in the case of Rex v. Speyer (2), had been approved. On consideration of these cases, the learned Chief Justice summed up the legal position in the following words :- "The introduction of election petitions to test the validity of elections and statutory provisions for appeals, have no doubt reduced the demand but have not excluded it altogether. It will still be available in all cases where the matter is, as in the case under consideration, outside the scope of the statutory remedy."
25. ' In Farzand All's case, the learned Chief Justice also referred to Halsbury's Laws of England (Third Edition), Vol. II, page 148, and reproduced the following passage, "even in a case where an election petition is the only remedy when an election is objected to on the ground that the person whose election is questioned was disqualified at the time of the election, yet the remedy by injunction in lieu of quo warranto is available where a person becomes disqualified after election or where there is a continuing disqualification in other words, where the objection is a continuous-holding of the office by the person disqualified."
26. On a reading of the reported judgment, we find that relief can be granted in Constitutional jurisdiction, if an adequate remedy was not available, and (D refusal of the remedy would produce the strange result that the Court would, thereby, perpetuate an illegality.
27. The next case, to which reference needs to be made, is the case of Muhammad Ali v. Muhammad Bashir and others (3). The petitioner in that {{FOOT NOTE}}
(1) 12 Cl. & F 537 (2) (1916) 1 K B 595
(3) P L n 1962 If-h. 230 {{FOOT NOTE}} ' case filed a writ petition, alleging that the person elected was suffering from a disqualification for the reason of his having undergone detention under the Punjab Public Safety Act. It was canvassed before the learned Judges of the Division Bench that rule 55 of the West Pakistan Basic Democracies Election Rules, 1959, providing that no election shall be called in question, except by an election petition presented in accordance with those rules, barred of the jurisdiction of the High Court to entertain the writ petition. The learned Judges adverted to the Laws (Continuance in Force) Order of 1958, which contemplated to preserve the jurisdiction of the High Court in the matter of issuance of writs. The learned Judges, therefore,. Considered the import of the rule, providing for a seeming ouster of jurisdiction as well as the provisions of the Constitution, and recorded conclusions in paragraph 11 of the said judgment in the following words :- "It will be noticed that, according to Ferris, the exclusion of proceedings by way of quo warranto by condition that it is not constitutionally prohibited ; and generally the statutory remedy will be considered cumulative. Now, I have already observed that in the present case the exclusion of this Court's jurisdiction sought to be spelt out of rule 55 of the West Pakistan Basic Democracies Election Rules, 1959, runs counter to the Constitutional Provisions contained in the Laws (Continuance in Force) Order, 1958, and cannot, therefore, be given effect to. That being the case, we can only regard the procedure for election petition as being cumulative, i. e. In addition to proceedings by way of quo warranto."
28. ' The argument was summed up and determined in paragraph 18 of the said judgment in the following words :- "On a consideration of the authorities, the position which emerges is this. Quo warranto is the remedy of proceeding whereby the State inquiries into the legality of the claims which a party asserts to an office or franchise, and to oust from its enjoyment if the claim be not well-founded, or to have the same declared forfeited, and to recover it, if, having once been rightfully possessed and enjoyed, it has become forfeited for misuser or non-user (Ferris). Generally speaking, the proceedings will not lie where there is another adequate remedy available, but the existence of an alternative remedy by way of an election petition does not exclude the jurisdiction of the High Court to issue a writ of quo warranto in suitable cases, particularly in cases of a continuing disqualification or a disqualification incurred after the election. The decision whether this Court will interfere, or not, in quo warrant proceedings shall depend on the facts and circumstances of each case, and the discretion of the Court cannot be fettered by laying down any hard and fast rules in this behalf."
29. ' The next case, which deserves mention, is from the Karachi Seat of the erstwhile High Court of West Pakistan. This is a case of Muneer Ahmed v. Returning Officer, Karachi, and others (1). Even in this case, the learned - Judges were seized of a case in which the question of disqualification bad arisen. It was canvassed that an election petition under section 58 of the Election College Act of 1964, providing an alternate remedy, barred the Constitutional jurisdiction. The learned Judges observed that it would be highly unjust and inequitable to force a party to resort to further litigation to establish something, which he had already succeeded in doing in the High Court. On such view of the matter, relief was extended to the extent of
(1) PLD 1966 Kar. 1 grant of a declaration that the respondent was not qualified to submit a nomination paper. It may, however, be stated that we have taken the view that the respondent No. 4 was qualified to contest on the labour seat, but this case has been referred to by us mainly to show that, in matters of lack of qualification, a remedy by way of petition, seeking relief in the nature of writ of quo warranto, was not barred.
30. Subordinate legislation, and that too by way of rules, could never be considered as an ouster of jurisdiction in the Constitutional field. Merely because the rules provide for an elation petition is no bar to grant of relief in Constitutional Jurisdiction, unless it can be shown that the Constitution itself bars remedy, or, that the alternate remedy was as efficacious and prompt as remedy by invoking the Constitutional Jurisdiction of this Court. Whenever the Constitution contemplates bar of remedy, specific mention is made in the Constitution itself. Even in the Constitution of 1973, Article 225 D was inserted, but on a plain reading of the said article, it would appear that the bar was created only to call in question an election to a House of the Parliament, or, a Provincial Assembly, and that too if a Tribunal was constituted by an Act of the Parliament. These provisions of the Constitution, without doubt, will not apply to elections of local bodies ; nor has any Act of Parliament, which would stand substituted by an Ordinance of the President, been promulgated. In such view of the matter, this petition does lie.
31. ' The next question, that deserves consideration, is in regard to qualifications' and disqualification of respondent No. 4 to be elected to a reserved seat for workers.
32. ' The question of lack of qualifications of respondent No. 4 is being considered first. It is contended by Mr. Naseem Farooqui that respondent No. 4 is not a "worker", so that he was not qualified to contest on the reserved seat from where he has been elected as a Member of the Corporation. The word "worker" has been defined in clause (82) of section 3 of the Ordinance. This clause reads as follows :- "(82) 'worker' means any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical labour for hire and reward."
33. ' The learned Advocate for the petitioner has pointed out that the definition in clause (82) of section 3 of the Ordinance is couched in the same words as the definition of 'workman' in clause (i) of section 2 in the West Pakistan (Standing Orders) Ordinance. This Ordinance defines the word 'workman' as meaning any person employed in any industrial, or, commercial establishment to do skilled or unskilled, manual or clerical labour for hire or reward. The learned Advocate has made a statement before us that respondent No. 4 before his previous election as Mayor in 1979 was a "worker", but, as soon as he became the Mayor of the Corporation, his status as "worker" was extinguished. It is common ground that respondent No. 4 was elected as Mayor of the Corporation on 9-11-1979, and, on the date of filing of his nomination, viz. 27-10-1983, he continued to be the Mayor of the Corporation. On the other hand, Mr. Khalid M. Lshaq, the learned Advocate appearing for respondent No. 4, has contended before us that, if the person, by his avowed vocation in life, could be termed a "worker", then even if such vocation is temporarily suspended, he does not cease to belong to such category of persons. In short, the argument is "once a worker is always a worker".
34. ' Mr. Naseem Farooqui has set up a case that, if the petitioner was actually a Mayor of the Corporation, which post involved heavy duties and responsibilities, he could not have performed his work as a worker in a commercial establishment. The learned Advocate has contended that the word "worker" should be construed with the same rigour as the word "workman" in the West Pakistan (Standing Orders) Ordinance. He has relied on some cases, laying down that, if words in two statutes are the same, the interpretation and meaning of these words in the two statutes should be the same. We must state that this argument has not appeared to us to be sound, because, firstly the word used in the Ordinance is "worker", while the word used in the West Pakistan (Standing Orders) Ordinance is "workman". What is more that the above principle of same interpretation of the same words in two statutes is not as broad as is sought to be conveyed. This principle has often come under discussion before the superior Courts of this country. Reference to some cases will be apt in the context. In the case of M. Abdul Bari and others v. West Pakistan Soil Reclamation Board, Lahare and others (1), the point was considered. The Supreme Court was considering the import of the words "occupier's rate", as appearing in section 3 of the Canal and Drainage Act and section 17 in the Punjab Soil Reclamation Act. Both the statutes used the same word. In such context, the Supreme Court, at page 458 of the report, observed as follows :- "Where certain words have been given a statutory definition in one statute and the same worth- are used in a similar connection in a latter statute then, in the absence of any contrary indication in the latter statute, it may be presumed that the same meaning attaches to the said words. It would seem, therefore, that even under the Soil Reclamation Act the only way in which the 'occupier's rate' can be recovered is under the provisions of section 46 thereof'.'
35. ' The next case in point is the case of Malik Muhammad shape v. Erose Theatre, Karachi (2). (One of us was a party to this judgment). This case also considered this. Principle, while dealing with a case involving questions under the Partnership Act. The construction of the word "person" as appearing in section 4 of the Companies Act, was in point. At page 560 of the report, following passage would appear to be relevant :- "Thus, as 1 have pointed cut, section 4 is only an isolated provision in the Companies Act dealing with partnerships. But according to partnership law, a minor is not a person. Now as two statutes cover the same field, the rule of construction would be so to construe them as to avoid inconsistency between them. As observed by Maxwell in his Interpretation of Statutes (11th Edition, p. 153) the language of every other statutes which it does not in express terms modify or repeal'.
36. Therefore, that construction of the woord 'person' in section 4 is to be preferred which is consistent with the law of partnership."
37. In fact, the rule would appear to be that the same words in two statutes have to be construed in the same manner, if the two statutes relate to matters in the same connection. ' The paramount rider in regard to the objects of two pieces of legislation is that, if both the statutes relate to the same object {{FOOT NOTE}}
(1) PLD 1966 SC 451
(2) PLD 1973 Kar. 522 {{FOOT NOTE}} ' and are in the same connection, the interpretation of same words should normally be the same, unless the interpretation in one of the statutes would be inapt, or, inappropriate for the purpose of construction of the other statute. Applying this principle, we would venture to examine the object and purpose of the Sind Local Government Ordinance and the West Pakistan (Standing Orders)
38. Ordinance. While the Sind Local Government Ordinance deals with. Composition and election to local bodies, their functions and responsibilities, the mode of ,collection of finances, etc., the object of the West Pakistan (Standing Orders) Ordinance is to regulate the terms and conditions of service of persons in Commercial and Industrial establishments. It would, therefore, appear to be unreasonable and improper to put the same interpretation on the word worker" as appearing in the Sind Local Government Ordinance as the interpretation given to the word "workman", as appearing in the West Pakistan Industrial Relations Ordinance. It may be stated that, while the West Pakistan (Standing Orders) Ordinance is designed to regulate relationships between employer and employee, the Sind Local Government Ordinance is designed to provide a structure for local bodies, their constitution and their working. The objects appear to be different. We may also state that seats are reserved for workers, cultivators, etc;, meaning thereby a class of persons, but the word "workman", as used in the West Pakistan (Standing Orders) Ordinance relates to an individual workman, who is agitating for his rights. Mr. Khalid M. Ishaq has urged before us that mere suspension of a person, taking out his living by becoming a worker for the reason of his having been elected to a representative body would not disqualify him. I fact, one could not say that the Mayor, or, Mayors of Karachi are following a vocation, or, profession in the broad sense of the word ; nor can it be said that the Mayor, or, Mayors of Karachi constitute such class of persons, who could be recognised as such a class that needs to have representation in the local bodies. The object of providing of these reserved seats is to hay representation from a broad based class of persons, following the same employment and constituting such a substantial chunk of population that needs to be represented in a representative house. Surely, the Mayor, or, Mayors of Karachi cannot constitute such a class and this could not have been in the contemplation of the Legislature. We would then refer to certain documents that have been placed on record by the two parties.
39. Respondent No. 4 has filed an affidavit of Muhammad Ismail Khan, the Managing Partner of Messrs Khan & Co. In whose employment respondent No. 4 has worked since 1930. In paragraph 2 of the affidavit, it is clearly stated that respondent No. 4 is employed in the commercial establishment known as "Messrs Khan & Co." as Shop Assistant since 1950, and is being treated as a workman. A certificate to that effect has also been issued by Messrs Khan & Co. And the same has been placed on record. On the other hand, the petitioner has produced an inspection report signed by the Labour Inspector of Shops and Establishments at Karachi. This inspection report has been prepared on 19-11-1983 at 12-30 p. m. When the inspection was held. On the back of the inspection report, the names of employees in the establishment of Messrs Khan & Co. Are mentioned, but the name of respondent No. 4 does not appear. Whether such inspection report prepared on 19-11-1983 viz. Far after the filing of the nomination and the election would be relevant in the context is an open question. On the other hand, whether respondent No. 4 still continued to be in service of Messrs Khan & Co. On 19-11-1983 is another relevant factor. In either case, the enquiry into this!! Aspect of the case would involve detailed consideration of all the facts and circumstances which cannot be undertaken without proper recording of evidence of the parties. Such exercise is rarely undertaken by this Court, while dealing with -constitutional petitions. Suffice to say that there is a serious dispute in regard to this aspect of facts. Needless to say that the certificate issued in favour of respondent No. 4 by Muhammad Ismail Khan can also not be overlooked ; nor can it be discredited without proper evidence of facts being brought on the record. What is more that remedy by way of an election petition is also available, and such remedy having been provided by a special statute would, in these circumstances, be more appropriate. We are reminded of the case of Imtiaz Ahmed v. Ghulam All and others (1). In this case, which to was an election case, a dispute arose on account of error in the description of one of the contestants at an election. The error was that the name of the father of the contestant was printed as "Muhammad Ali" instead of "Ali Muhammad". The Supreme Court was asked to determine the correctness of the decision of the High Court in setting aside an election by determining the question of parentage of one of the contestants. In that context, the Supreme Court observed as follows :- "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 contusive 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 therefore 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."
40. It would thus appear that the rule of exclusion by reason of existence of alternate remedy is applied with great rigour when the case involves matters arising out of acts done under a special statute if in such special statute devices of special remedy for redress of grievances are provided.
41. No doubt, Mr. Naseem Farooqui has urged before us that this Court and other Superior Courts of this country have, in several cases, entered into questions of fact, which could be resolved by way of a civil suit. To that extent, the present jurisdiction is distinguishable, for we know that normally decisions in civil suits take long time on account of cumbersome processes and possible appeals, second appeals, or, revisions, but, in matters, relating to elections, such argument is hardly available, because Election Tribunals are constituted by special enactment, and, against decisions of Election Tribunals, no appeal, or, second appeal revision is maintainable. We are therefore, o the view that this question in regard to the status of the petitioner would, in the circumstances of this case, be beyond the scone of relief that could granted by this Court in its Constitutional jurisdiction.
42. However, Mr. Naseem Farooqui, at the Bar, submitted that he was not challenging the status o {{FOOT NOTE}}
(1) PLD 1963 6 C 382 {{FOOT NOTE}} ' respondent No. 4 as worker prior to 1979, when he was elected as Mayor of Karachi.
43. ' We now proceed to consider the next argument of Mr. Naseem Farooqui in regard to disqualification of respondent No.
4. It is contended that respondent No. 4 by holding the office of Mayor of the Corporation, stood disqualified by reason of the provisions of section 37, subsection (2), clause (e) of the Local Government Ordinance. Such clause seeks to disqualify a person from being elected as and from being a Member if he is under contract for work to be done, or, goods to be supplied to the council or has otherwise any pecuniary interest in its affairs. (The underlining is ours). The argument is that, since the Mayor is enjoying honorarium of Rs. 4,000 per month, besides some other fringe benefits, he is deemed to be having pecuniary interest in the affairs of the Corporation. It is also urged that the receipt of this amount of Rs. 4,000 per month would give such an interest to respondent No. 4 that he would be intent to conduct the affairs of the Corporation in such a manner that it has sufficient funds to pay as his honorarium, or, to provide other amenities. Considering clause (e) of subsection (2) of section 37, the disqualification will attach only if a person has a contract for work in respect of the functions and duties of the Corporation, or, he is a contractor for supply of goods to the Corporation, or, he has any other pecuniary interest in its affairs. The words "pecuniary interest" cannot be extended to mean the obtaining of honorarium. If that were so, then even a Government employee; who obtains a salary for the services rendered, would stand disqualified by reason of the fact that he gets a portion from the finances obtained by the Government. Can it then be said that, by the mere fact of obtaining a salary, a Government servant acquires pecuniary interest in a public body, or, in the Government of a Country, or, province. The answer has to be in the negative. First of all, the salary, or, honorarium is paid as provided by law. Secondly, it could not be considered to be an interest in the affairs of a Corporation. The affairs of Karachi Municipal Corporation are stated in Part II of Schedule I of the Sind Local Government Ordinance. No reference was made by the learned counsel for the petitioner to anything appearing in Part H of Schedule 1 to point out that the receipt of the honorarium by the respondent No. 4 was in any manner relatable to any of such functions of the Corporation as are enumerated in Part II of the Schedule. The learned- Advocate has, however, relied on the case of Muhammad Hassan v.
44. Election Tribunal, Jacobabad and others (1). In this case also, the words "or otherwise has any pecuniary interest in such council or committee" came up for interpretation. The case is completely distinguishable, because, at the material time, the contestant was a contractor of the Town Committee for collection of octroi on behalf of the Committee. Without doubt, octroi contractors shall be deemed to have pecuniary interest within the meaning of section 37(2)(e) of the Sind Local Government Ordinance. Reference has also been made by Mr. Naseem Farooqui to the meaning of the words "pecuniary interest" from the Stroud's Dictionary, Vol. IV, page 1970 (Fourth Edition). Even such citation does not help the petitioner, because the question in the case, which was referred to in the dictionary, was, whether the person could attend at the voting on the proposal for salary being paid to a Mayor. This case only relates to the Mayor of a Corporation, sitting at a meeting, which was to decide about the {{FOOT NOTE}}
(1) PLD 1966 Kar. 348 *Mere in italics) {{FOOT NOTE}} ' salary of the Mayor. In the present case, the honorarium is, in fact, determined by the Government, and not by the Corporation. Such disqualification, therefore, would not be attracted in this case.
45. ' The last argument of Mr. Naseem Farooqui is in regard to the failure of the Returning Officer, and the Provincipal Election Authority in not entertaining the objection of the petitioner to the nomination. As stated above, an appeal lies only against rejection of a nomination, and not against it acceptances. In the instant case, the grievance of the petitioner was against acceptance of the nomination paper of respondent No. 4, and, since no appeal lay, the Provincial Election Authority was completely right in taking such view, and no fault can be found with it. In regard to the objection take before the Returning Officer, it must be stated that, by the programme for filing of nominations, it was provided that scrutiny of nomination was to be a simultaneous process with the filing thereof. The patent facts in this case are that the petitioner, or, as a matter of that, no one objected to the nomination paper of respondent No.
4. It appears to be the case of the petitioner that, after the nomination paper was accepted, he went up to the Returning Officer, and orally objected to the acceptance of the nomination paper. In fact, the Returning Officer, in his affidavit, has stated that the petitioner came two, or, three hours after the acceptance of the nomination paper of respondent No. 4, and asked, whether he could object to the acceptance of nomination paper, but he was told that the same had already been accepted, and the question could not be re-opened. It would thus seem that there was no valid objection to the nomination of respondent No. 4, and, if at all any objection was made, it was belated. It is also an open question, whether the petitioner, not being a contestant to the reserved seat, could object to the nomination of respondent No.
4. Even this point has no substance.
46. ' For the above reasons, we dismiss this petition, but there shall be no order as to costs.