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Petitioner: Ch. MUHAMMAD HUSSAIN VS Respondent: ELECTION TRIBUNAL AND Other
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, C.A. Rahman Title: Ch. MUHAMMAD HUSSAIN vs ELECTION TRIBUNAL AND Other Case No.: Writ Petition No. 7176 of 1980 Date of Judgment:- Reported As: PLD 1981 Lahore 374 Result: Petition dismissed
JUDGMENT
JUDGMENT A. RAHMAN, J.-The petitioner and 17 other persons, including Ghulam Qadir, respondent No2, took part in the local councils election held on 25-9-1979. They were all candidates of two members constituency of Electoral Unit No. 37 of Municipal Corporation, Faisalabad. Muhammad Tufail Ansari and the petitioner were declared elected after the polling. Ghulam Qadir, respondent No2, one of the defeated candidates, filed an election petition under section 24 of the Punjab Local Government Ordinance (herein--after to be referred as "the Ordinance"), challenging the election of the returned candidatesIn the case of the petitioner, it was alleged that he was not qualified to contest the election from Electoral Unit No. 37 as he was a resident of Electoral Unit No. 12, and that his name as voter was entered at Serial No. 3846 in the electoral roll of the said electoral Unit, but a few days before the xlection he got his vote illegally transferred from the electoral roll of Electoral Unit No. 12 to that of Electoral Unit No. 37. It was also alleged that he had persuaded the voters belonging to his case to vote for him and that he had also procured the assistance of Deputy Superintendent of Police, Faisalabad City, who belonged to his case, in securing votes. The allegations against the other returned candidate, Muhammad Tufail, were that he had contested election by giving out himself as an official candidate of Pakistan People's Party and had used the slogan of "Awam Dost" in order to obtain votes from the voters. 2. The petitioner and Muhammad Tufail both contested the election petition A number of issues were framed by the Election Tribunal for the disposal of the election petition, but the relevant issue for the present case was "whether the petitioner lacked necessary qualification to be eligible to contest election from electoral unit No. 37". The evidence produced by the parties showed that the petitioner had submitted an application on 30-8-1979 to the Registration Officer, Faisalabad, for the
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transfer of his vote listed at Serial No. 3846 in the electoral roll of Electoral Unit No. 12 to the electoral roll of Electoral Unit No. 37 as his house was situated in electoral unit No. 37 and that his vote bad been wrongly shown in the electoral roll of Electoral Unit No. 12. Petitioner's application was allowed by the Registration Officer on the basis of the Assistant Registration Officer's report that the petitioner's house was situated in Street No. 6, which formed part of Electoral Unit No. 37. Mr. Javed Hafeez, Election Officer, who had sub--mitted the aforementioned report to the Registration Officer, when examined as a witness before the Election Tribunal, however, stated that the report had been made by him without seeing the petitioner's house. He also disclosed that the petitioner's house was in fact situated in Electoral Unit No. 12. It was also brought on the record that the petitioner's three sons, who lived with him in the same house, had not got their votes transferred from Electoral Unit No. 12 and that they had cast their votes in the election pertaining to Ward No. 12. 3. After considering the parties' evidence and their respective conten--tions, the Election Tribunal came to the conclusion that the transfer of the petitioner's vote from the electoral roll of Electoral Unit No. 12 to that of Electoral Unit No. 37 was illegal as he did not own any property in electoral unit No. 37. The petitioner was, therefore, not qualified to contest election from Electoral Unit No. 37. The Election Tribunal did not accept the petitioner's contention that it had no jurisdiction to go behind the entries in the electoral roll in view of the provisions of section 29 of the Electoral Rolls Act, 1974. Petitioner's election was, accordingly, set aside by the Election Tribunal vide order dated 25-6-1980, and Ghulam Qadir, respondent No. 2, who had polled the next highest votes was declared duly elected. 4. The petitioner has challenged the aforementioned order of the Election Tribunal in the present writ petition. He has contended that the Election Tribunal has acted without jurisdiction inasmuch as it has only limited jurisdiction under rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, to declare the election of a returned candidate as void only if it is found that he was disqualified from being elected as a member on the nomination date. According to the petitioner he was duly qualified to be elected as a member of a local council under section 20 of the Ordinance, as his name appeared in the electoral roll of Electoral Unit No. 37 on the nomina-- petition date It has been further contended that the Election Tribunal is not a Court of competent jurisdiction and, as such, it could not go behind the order of the Registration Officer whereby the petitioner's vote was transferred from electoral roll of electoral unit No. 12 to that of Electoral Unit No. 37, as the Registration Officer was legally competent to make such order under the provisions of the Electoral Rolls Act, 1974. The petitioner has further pleaded that the jurisdiction of the Election Tribunal extends only to the determination of election disputes and according to the well- established principle of law, it has no jurisdiction to examine questions like registration of names of voters in the electoral roll and delimitation of electoral area etc. As these matters do not fall within the category of election disputes. The petitioner has also assailed the order of the Election Tribunal on the ground that it has acted as an appellate Court and has illegally set aside the order of the Registration Officer dated 3-9-1979 without impleading him as party. The petitioner has further contended that respondent No. 2 was estopped from raising the objection regarding the alleged disqualification of the petitioner before the Election Tribunal as he had raised no such objection at the time of filing of the nomination papers by the petitioner nor he had questioned the acceptance of his nomination papers before any authority in appeal. The petitioner has challenged the finding of the Election Tribunal that he does not own any property in electoral unit No. 37, on the ground that the Election Tribunal has misread the evidence on the record and has failed to take notice of the petitioner's own statement that he owns property in Electoral Unit No. 37, and the admission made by respondent No. 2 that the petitioner had been elected as Chairman twice from the same area from which he has been elected as member of the Municipal Corporation. Relying on the proviso to section 19 of the Ordinance, the petitioner has contended that he was qualified to be
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elected as member from Electoral Unit No. 37 even if it be assumed that his vote could not be legally transferred from Electoral Unit No. 12 because there was no legal bar against a person being enrolled more than once on the electoral rolls of more than one electoral unit and since he had exercised his right of vote in one electoral unit only, be had acted in accordance with law as contained in the aforemen--tioned proviso. In the end, the petitioner has attacked the order of the Election Tribunal whereby respondent No. 2 has been declared as elected member because the votes polled by the petitioner could not be considered as thrown away as he did not suffer from any disqualification, which could be considered as notorious. Respondent No. 2 could be declared as elected member only if it had been shown that the petitioner's disqualification was founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electorates voting for the petitioner. 5. .Ghulam Qadir, respondent No. 2, has contested the writ petition. He has filed written statement controverting the various allegations made by the petitioner. He has pleaded that the Election Tribunal has acted !n accordance with law as under rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, the Election Tribunal had jurisdiction to declare the election of a returned candidate as void on being satisfied that the nomi--nation of the returned candidate was invalid or that the returned candidate was not on the nomination day qualified for, or was disqualified for being elected as a member. The petitioner lacked necessary qualification for being elected as a member from Electoral Unit No. 37 because he had been enrolled as a voter on the electoral roll of Electoral Unit No. 12 and had got his vote illegally transferred to the electoral roll of Electoral Unit No. 37. According to respondent No. 2 the petitioner has not come to the Court with clean hands and, as such, is not entitled to any discretionary relief, because his residential house is situated in Electoral Unit No.. 12 where he resides along with his three sons. The order of the Registration Officer transferring the petitioner's vote from the electoral roll of Electoral Unit No. 12 to that of Electoral Unit No. 37 was based on incorrect information as admitted by Mr. Javed Hafeez Election Officer before the Election Tribunal. Even otherwise, the said order was illegal as it was obtained from the Revising Authority who had no jurisdiction to order inclusion of the petitioner's vote in the electoral roll of electoral Unit No. 37. 6. We have heard the argumentents of the learned counsel for the parties only on two legal issues requiring determination in the present case. These 'legal questions are whether respondent No. .1 had jurisdiction to examine the legality or otherwise of the order of transfer of petitioner's vote from the electoral roll of Electoral Unit No. 12 to that of electoral unit No. 37, and whether respondent No. 2 could be declared as elected member by the Election Tribunal after it bad set aside the petitioner's election. Although it has been alleged by the petitioner that he also owns property in Electoral Unit No. 37, yet no attempt has been made to assail the impugned order on merits. We would, therefore, only consider the aforementioned legal issues in this case. 7. Learned counsel for the petitioner has referred to the Electoral Rolls Act, 1974 ;hereinafter to be referred as "the Act"), which provides for the preparation and revision of electoral rolls for elections to the National Assembly and Provincial Assemblies and for matters connected therewith and incidental thereto. Electoral rolls prepared under the said Act have been adopted as electoral rolls for election to the local councils under section 18 of the Ordinance. Section 6 of the Act deals with prepara--petition of preliminary electoral rolls etc. And in subsection (2) it is provided that a person shall be entitled to be enrolled as a voter in an electoral area if he besides having necessary qualification, as enumerated in clauses (a), (b) and (c), is deemed under section 7 to be resident in that electoral area. Section 7 of the Act gives the meanings of residence as used in clause (d) of subsection (2) of section 6. After the preparation of preliminary electoral rolls, the same are published together with a notice inviting claims and objections and applications for correction, if any, under section 8. According to section 10, claims and objections are to be made to
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the revising authority appointed by the Chief Election Commissioner under section 9 of the Act within a period of 21 days next following the date of the publication of the preliminary electoral rolls. Section II specifically deals with the transfer of name of a person from one electoral area to another: Section 14(l) provides for holding of a summary enquiry into the claims objections by the revising authority, after giving notice to the parties/concerned. Sub--section (2) of section 14 gives finality to the decision of the revising authority which on being communicated to the appropriate Registration Officer is to be implemented by him under section 15 of the Act. Section 16 provides for the final publication of the electoral rolls by the Registration Officer for each electoral area. Provision for annual revision of electoral rolls has been made in section 17 while section 18 deals with the procedure for enrolment and correction at a time other than annual revision. Section 27 empowers the Chief Election Commissioner to include a name in an electoral roll. Section 29 of the Act lays down that no Court can question the validity of the electoral rolls prepared or revised under the Act or the legality or propriety of any proceedings or action taken thereunder by or under the authority of the Chief Election Commissioner or Registration Officer. 8. It has been contended on behalf of the petitioner that the aforemen--tioned provisions of the Act clearly indicate that all maters pertaining to the preparation, rkvision or correction of electoral rolls are to be dealt with under the' Act and the validity of any electoral roll prepared or revised nnder the Act cannot be questioned before any Court. The petitioner in the present case had moved the appropriate authority, namely, the Registra, petition Officer (vide application copy Annex. `B') for transfer of his name from the electoral roll of electoral unit No. 12 to that of Electoral Unit No. 37 under section 11 of the Act and the Registration Officer after obtaining report from the Assistant Registration Officer had ordered the deletion of the petitioner's name from Serial No. 3846 of Electoral roll of electoral Unit No. 12 for being incorporated in the electoral roll of Electoral Unit No. 37 vide order dated 3-9-1979. The above order was not open to question before any Court including the Election Tribunal in view of the provisions of section 29 of the Act. Learned counsel for the petitioner has pointed out that the view taken by the Election Tribunal that section 29 of the Act only ousts the jurisdiction of a Court and not. That of an Election Tribunal, which is not a Court is not tenable because the Election Tribunal has limited jurisdiction as conferred on it by law as against a Court which possesses jurisdiction to determine all questions of civil nature, except those which are specifically excluded from its jurisdiction. According to the learned counsel for the petitioner, the Election Tribunal has jurisdiction to declare the election of a returned candidate to be void only on the grounds specified in rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, and where the returned candidate was qualified for and did not suffer from any statutory disqualification as enumerated in section 21 of the Ordinance, from being elected as a member, it has no jurisdiction to declare the election of such returned candidate to be void. An Election Tribunal being a forum of limited jurisdiction, is not competent to examine the question whether a person has been validly enrolled on the electoral roll as a voter. The impugned order is, therefore, a nullity and has no legal existence. In this connection, reference has been made to the following observations made by the Supreme Court in Raunaq Al v. Chief Settlement Commissioner (PLD 1973 SC 236 "It is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action `beyond the sphere allotted to the tribunal by law, and therefore outside the area within which the law recognizes the privilage to err`, then such action amounts to a 'usurpation of power unwarranted by law' and such an act is a nullity ; that is to say "the result of a purported exercise of authority which has no legal effect whatsoever" Learned counsel for the petitioner has drawn our attention to section 20 of the Ordinance which runs as under :-
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"S. 20. Qualification of candidates and members.-Any person who has attained the age of twenty- five years on the last day fixed for filing the nomination papers shall be. Qualified to be a candidate for election to an electoral unit of a local council if for the time being his name appears on the electoral roll of that electoral unit." It has been pointed out that the petitioner's name appeared on the electoral roll of electoral unit No. 37 on ,the date of filing of the nomination papers and, as such, he fulfilled the requisite qualification of being qualified to be a candidate for election to electoral unit 'No. 37. The Election Tribunal was not legally competent to examine the legality or otherwise of the entry regarding petitioner's name in the electoral roll, because the entries in the electoral rolls were final and could not be looked into in view of the provisions of section 29 of the Act. 9. As regards the finality of the electoral rolls, learned counsel for the petitioner has referred to the decisions of foreign jurisdiction. In Election Petition No. XI pertaining to Anglo-Indian Constituency (U. P.) 1937 (U. P. Legislative Assembly) filed by H. H. J. Mills and others against H. G. Walford, it was held that the electoral roll was binding and conclusive on the returning officer as well as the tribunal. Pembroke Borough's case (50 M & H 135where the question for consideration was whether the free holders for the Haverfordwest, whose names appeared on the list of preliminary votes for the Pembroke Borough, were entitled to vote for the new Borough of Pembroke and Haverfordwest. Although by the decision of the Queen's Bench Division they bad no right to vote, yet it was held that as long as their names appeared on the register of votes, they were entitled to vote. Relying on the decision in Stowe v. Jallffe (9 L R C 734) it was observed that the entries in the register of votes and even the list of names forming part of the said register were conclusive not merely on the Returning Officer at the election but also on the election Courts holding scrutiny except only in cases of persons prohibited from voting by any statute or by the common law of Parliament. 10. Learned counsel for the petitioner has cited the case of Syed Aminud Din v. Election Commission, Chittagong and others (PLD 1968 SC 235) which, according to him, is on all fours with the present case. In that case too, the returned candidate had got his name registered as a voter in the unit from which he was elected by filing an appeal to the revising authority after his application for such registration was rejected by the Registration Officer. After the election, the defeated candidate had challenged the validity of election on the ground that the successful candidate was not entitled to be enrolled as voter in Unit No. 5. The Election Tribunal upheld the objection raised by the defeated candidate and set aside the election of the returned candidate on the ground that he was not a resident within the meaning of section 10 of the Electoral College Act, 1964, in unit No. 5 and, as such, he could not be a voter or a candidate from the said unit. He also declared the defeated candidate as duly elected candidate from unit No. 5. The order of the Election Tribunal was successfully challenged before the High Court by the returned candidate. Special leave to appeal was granted by the Supreme Court to consider whether the High Court was right in holding that an entry in the electoral roll prepared under the Electoral College Act was final, not only against the power of the Polling Officer or a Returning Officer, but also against the jurisdiction of the Election Tribunal to decide whether the person concerned was entitled on the ground of residence to have his name entered in the electoral roll of a particular unit. After examining the relevant provision of law, it was observed :- "The only conclusion therefore which can be arrived at from the general scheme of procedure as to preparation of the electoral roll is that if a person is entered in the electoral roll in contravention of the provisions of the Act and the rules, the only remedy to the persons. Objecting to the same is by way of objection under the rule and that if the said remedy is not availed of the electoral roll becomes final and conclusive as to his qualification and the Election Tribunal is therefore precluded from enquiring into the question of his possessing necessary qualifications as a voter.
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The electoral roll as revised by the Revising Authority would therefore, be binding on the Tribunal except as regards statutory disqualifications. In other words, if a person's name is entered in the electoral roll maintained under the law and if he is not under any statutory disqualification he becomes ipso facto qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualifications." Reliance was also placed on the following passage from the judgment in the case of Imtiaz A.I v. Ghulam Muhammad Butt (PLD 1958 SC (Pak.) 228 "This view is based upon a settled principle of election law that Election Commissions cannot go behind the final electoral rolls as amended in accordance with the final orders of the revising authority. It is settled that every person whose name is entered in the electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualification. A reference may here be made to the case of Stove v. Joliffe, where it was held that the register of voters is conclusive on a Returning Officer, as well as on any tribunal which is to enquire into the election unless there be some personal disqualification. In the Pembroke Borough's case, it was held that the register is conclusive and the people whose names are mentioned on it are presumed to have the necessary qualifications : 'it may be that their names ought not to have been there, but they were there at the time of the election.' It was declared also that the policy of the law is to make it necessary to raise all questions as to rights to vote before the Registering and Revising Authorities, and this has been donq by preventing any such question from being raised at any other time, or in any other manner. These views have been approved in reported cases of elections to Legislative. Assemblies in India as well." 11. Learned counsel for the petitioner has argued that although the case of Syed Aminud Din Chaudhry was decided under the Electoral College Act, 1964, the powers of Election Tribunal under the said Act read with rule 36(1) (A) made thereunder were wider than the powers given to the Election Tribunal under rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979. These powers were comparable with those given to the Election Tribunal under rule 59 of the Basic Democracies Election Rules, 1959, and section 72 of the National and Provincial Assemblies Act, 1964, which according to the decision of this Court in the case of Karam Dad Khan v. Muhammad Yaqoob etc. (PLD 1965 Lah. 622 ) were wider than those given in the said rule 59 and the said section 72. 12. Learned counsel for the contestant respondent has met the arguments of the learned counsel for the petitioner in two ways. He has contended that the order dated 3-9-1979 passed by the Registration Officer was illegal and without jurisdiction and, as such, implementation of the said order was also a nullity. The Election Tribunal, therefore, had acted wholly within its jurisdiction in holding the entry made in pursuance of the illegal and void order of the Registration Officer as of no legal effect. The learned counsel for the respondent has pointed out that after the issuance of notification by the Election Authority in pursuance of sub-rule (1) of rule 12 of Punjab Local Councils (Election Petitions) Rules, 1979, calling upon voters of the electoral units in the various Local Councils in the Punjab to elect a member or members from each electoral unit, which was published in the official Gazette on 1-9-1979, no revision or correction of any electoral roll for an electoral aria could be made in view of the provisions of section 20 of the Act and since the entry regarding inclusion of the name of the petitioner in the electoral roll of electoral unit No. 37 was ordered after 1-9-1979, it was clearly in violation of the provisions of section 20. 13. Learned counsel for the. Respondent has further submitted that the power conferred on the Registration Officer to transfer the name of a voter _ from the electoral roll of one electoral area to the electoral roll of another electoral area under section 11 of the Act, could not be availed of by. The petitioner because he had applied for…
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