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Petitioner: Ch. AURANGZEB AND OTHERS VS Respondent: Ch. ABDUL RASHID AND OTHERS
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Abdul Majeed Malik, Raja Muhammad Akram Khan Title: Ch. AURANGZEB AND OTHERS vs Ch. ABDUL RASHID AND OTHERS Case No.:Writ Petitions Nos. 30, 37 and 47 of 1984 Writ Petition No, 30 of 1984 Writ
Petitions Nos. 37 and 47 of 1984 Date of Judgment:1985-11-20 Reported As: PLD 1986 Azad J & K 1 Result: Order accordingly Judgment ORDER ' MUHAMMAD AKRAM KHAN, J.--These three Writ Petitions under sectionthe Azad Jammu and Kashmir Interim Constitution Act of 1974 are directed against the order of the learned Election Tribunal Mirpur dated 28-6-1984 whereby the Election of Aurangzeb, a successfulandidate, was declared as void and re-election was ordered by the Tribunal for the seat of Ward No, 26 of Mirpur Municipality. This order of reelection has also been challenged by Ch. Abdur Rashid,In whose favour the Impugned Judgment was passed, but he feels aggrieved by the order of re-election. The Third Writ Petition titled `Tariq and others v. Elet tion Tribunal' has been moved by the voters from Ward No, 26 of the Municipal Committee Mirpur who have sought the annulment of the order of the Election Tribunal dated 28-6-1984, whereby the petitioners' right to vote for the election from Ward No, 26 of Municipal Committee Mirpur has been taken away. 2. These three Writ Petitions arise out of the following facts:- (a) Ch. Aurangzeb and Ch. Abdur Rashid contested election for the membership of Municipal Committee Mirpur from Ward No, 26 on 27-10-1983 A.C. Ch. Aurangzeb has alleged that he secured 307 votes while his rival candidate Ch. Abdur Rashid secured only 202 votes. Ch. Aurangzeb was declared elected as a Member of the Municipal Committee Mirpur from the Ward No, 26 on the ground that he got the highest votes in the election; (b) Ch. Abdur Rashid filed an Election Petition before the learned District Judge/Election Tribunal Mirpur on 12-11-1983 and made certain allegations which are contained in his election petition moved before the Election Tribunal. His main grievance was that certain voters belonging to Ward
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No 25 were illegally entered in the, Electoral Roll of Ward No, 26 and, therefore, the votes of those voters should be excluded from counting; (c) The Election Tribunal accepted the Election Petition of Ch. Rashid and declared the election of Aurangzeb as void. The learned Election Tribunal directed in its judgment dated 26-3-1983 that fresh polls should be held in the Ward No, 26 of the Municipal Committee Mirpur because the election as a whole was vitiated. (d) Aggrieved by the impugned judgment and the order for fresh polls passed by the learned Election Tribunal Mirpur dated. 26-3-1983, three Writ Petitions were moved in the High Court. (i) The First Writ Petition has been moved by Ch. Aurangzeb, who has assailed the order of the learned Election Tribunal Mirpur whereby the election of the petitioner was declared as void. It has been alleged that the impugned order passed by the learned Election Tribunal was without lawful authority and consequently of no legal effect; (ii) The Second Writ Petition has been brought by Ch. Abdur Rashid who has sought annulment of the decision of the Election Tribunal to the extent of re-election only and the said petitioner has prayed that the order of the learned Election Tribunal Mirpur dated 26-6-1984 may be set aside to that extent because in that case he would have to fight again for the membership of the Municipal Committee of Mirpur; (iii) Tariq and 10 others are 11 voters and residents of Ward No, 26 of the Municipal Committee Mirpur. Their names are mentioned in the electoral roll Annexure 'A' attached with the Writ Petition and, therefore, they have also assailed the judgment of the learned Election Tribunal Mirpur on the ground that they are the genuine residents and voters from Ward No, 26 and as such they were perfectly justified to cast their votes in the election of the Municipal Committee Mirpur held on '27- 10-1983 from the Ward No, 26. They cast their votes on 27-10-1983 and consequently Ch. Aurangzeb was declared elected as a Member securing the highest number of votes from that Ward (Ward No, 26). They have prayed that the order of the 28-6-1984, which enfranchises the said petitioners and takes away their right of vote for the Election of the Municipal Committee Mirpur from Ward No, 26, may be declared as illegal, without lawful authority and consequently of no legal effect. 3. All the three writ petitions are directed against the order of the learned Election Tribunal Mirpur dated 28-6-1984, therefore, they were heard together and are being disposed of by this single order. 4. Raja Muhammad Anwar Khan, the learned counsel for Ch. Aurangzeb, has raised the following points:- (a) That the order of the Election Tribunal Mirpur is without jurisdiction and lawful authority on the ground that there has been no violation of any provision of the Ordinance XL1X of 1983 (repeated up-to-date) and the Azad Jammu and Kashmir Electoral Rolls Ordinance 1970 (Ordinance No, 1 of 1977) or the Rules issued thereunder; (b) That the learned Election Tribunal Mirpur has got no jurisdiction to go outside the sphere allotted to him by law and rules relating to the election and the Electoral Rolls duly prepared by the Registration Officer and printed by the Awan Printing Press Sialkot Pakistan'. (which are attached with one of the Writ Petitions) are valid Electoral Rolls, the correctness or authenticity whereof cannot be questioned or gone into by any Court including the Election Tribunal; (c) That under rule 60 of the Election Rules (Azad Jammu and Kashmir Election Petition Rules of 1983), the Tribunal can declare an election as void only if it is satisfied that failure to comply with certain provisions of Ordinance or Rules has 'materially' effected the results of that election; (d) That the relevant Electoral Rolls in this case are duly prepared and as such they cannot be questioned by the learned Election Tribunal because:- (1) No objection was taken at the time of preparation of the electoral roll before the Registration Authority;
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(ii) When the electoral rolls were hanged for the public inspection even at that time, no objection about the authenticity or correctness of the Electoral Rolls was taken by anybody before the Registration Authority/Officers, and (iii) The Electoral Rolls in this case are sacrosanct and no authority, whatsoever, is competent to question the same. Under section 17 of the Azad Jammu and Kashmir Electoral Rolls Ordinance of 1970 (Ordinance I of 1970), no Court shall question the validity of the electoral rolls prepared under this Ordinance or the legality or propriety of any proceedings, or action taken thereunder by or under the authority of the Commissioner or the Registration Officer; (e) That the votes mentioned in the relevant electoral rolls concerning the votes of Ward No, 26 are bona fide 'residents' or Ward, No, 26 within the meaning of section 12 of the Ordinance I of 1970 (The Azad Jammu and Kashmir Electoral Roll Ordinance of 1970) which says that a person shall be deemed to be the resident in an electoral area if he ordinarily resided in that area. Therefore, the learned Election Tribunal has misinterpreted and misunderstood section 12 of the Ordinance; ( f) That the Wards Nos. 25 and 26 fell in one ward in the previous election and in the elections of 1983, the old wards were split up into new wards, it was simply a matter of rearrangement and readjustment which could be done by the Revenue Officers/Registration Officers. All these voters' names existed in the old Electoral Rolls and when the wards were split up, some names were wrongly included in the Ward No, 25 and similarly some persons were wrongly entered in the Electoral Rolls pertaining to the Ward No, 26. Two applications were moved. One by the residents of Ward No, 26 that their names should be written in the Rolls pertaining to the Rolls of 26 instead of Ward No, 25 and the other application was moved by the Residents of Ward No, 25 that their names should be included in the Ward No, 25. No objection was made and, therefore, the mistakes were rectified; (g) That the election law has been complied with in holding and conducting the election. And therefore, it has not resulted in the non-compliance of any provision of law or irregularity or procedure. Therefore, the election Tribunal was wrong when it deprived the petitioner Aurangzeb from the fruit of election and when it deprived the electors in the third writ petition from their right to tote which was guaranteed to them by the Constitution; ' That Ch. Aurangzeb was successful as a result of fair election, so the Election tribunal was wrong to pass the impugned order because the election law was materially complied with. Unless and until there is a material illegality or irregularity, the election cannot be declared as void. He has cited:- ' PLD 1977 Lab. 588 1974 All E R 722 (which case is mentioned in the Lahore Authority); (i) Raja Muhammad Anwar Khan, the learned counsel for Ch. Aurangzeb, has referred to the following authorities in connection with the authenticity and correctness of the Electoral Rolls:- PLD 1958 SC (Pak.) 228. PLD 1965 Kar. 625. PLD 1968 SC 235. 1982 SCMR 307. PLD 1968 Lab. 1368. 1984 CLC 572., 1985 SCMR 729. 5. Mr. S. M. Zaffar, the learned counsel for Ch. Abdur Rashid has vehemently argued:- (a) That the Electoral Rolls concerning the Ward No, 26 are not sacrosanct. The inclusion of certain names mentioned in the challenged electoral rolls is a flagrant violation of law because some
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voters belonging to the other Ward No, 25 were included in the Ward No, 26 without any legal justification. So, 45 voters were wrongly added in the Electoral Roll under the orders of some Assistant Commissioner or Tehsildar who was not competent to order for the inclusion of their names in the challenged Electoral Roll. Mr. S. M. Zaffar, Advocate has argued that the Collector Mirpur or his Superintendent {{URDU TEXT}} or the Deputy Commissioner Mirpur or the Assistant Commissioner were not competent to pass an order for the inclusion of 45 voters mentioned in the challenged Electoral Roll. He has submitted that the Electoral Rolls prepared for the purpose of the election for the Members of the Legislative Assembly have been adopted for the sake of election to be held for the Local Bodies and, therefore, the Court has only to look into Azad Jammu and Kashmir Local Government Ordinance of 1983 (Ordinance XLIX of 1980). Referring to section 3 of the said Ordinance of 1983, Mr. S. M. Zaffar Advocate has argued that the addition of 45 names in the electoral roll was an act beyond the jurisdiction of the Deputy Commissioner and/or the Assistant Commissioner. Therefore, the addition of 45 names was unauthorised. The Revenue Officers figure nowhere in section 3 of the said Ordinance. According to him, this addition could only be made by the Election Commissioner or the Deputy Election Commissioner; (b) That the electoral rolls are maintained under section 18 of the said Ordinance and the Register of voters should include only those persons who possess the qualifications to be the voters and who should not be subject to any disqualification. His precise argument is that the Register maintained under subsection (1) of section 18 of the Ordinance, shall be the Electoral Roll for the ward. This electoral roll shall be maintained and revised in the prescribed manner fom time to time. He has also referred to section 19 which says that every person whose name is entered in the electoral roll and no person whose name is not so entered, shall be entitled to cast a vote at an election of a Local Council; (c) That the rearrangement of wards, Union Councils etc. Is to be made by the Revenue Officers but no names of voters can be added or substracted by the Deputy Commissioner or Assistant Commissioner or the Tehsildar. Electoral Rolls meant for the Azad Jammu and Kashmir Assembly elections shall be used subject to the condition that no addition or alteration can be made under any other law at all. However, amendments and revision can be made under the Ordinance of 1983 by the Election Commissioner or 2 other Officers mentioned in section 2(3) i. e. The Additional Election Commissioner or the Deputy Election Commissioner. He has also referred to the Azad Jammu and Kashmir Local Council Rules of 1983, especially the rule 11(11) which pertains to the definition of Election Commissioner/authority competent under this rule for holding an election for a Local Council. He also referred to rule 2(0 which defines an electoral roll prepared under these rules and adopted for the purposes of election of a Member of a Local Council. His case is that the Collector is only responsible for the organization, conduct and supervision of a Local Council within his District and, therefore. The Collector or his Superintendent cannot add or subtract names from the voters list (electoral roll). He has also referred to rule 12 of the Azad Jammu and Kashmir Local Government Election Rules of 1983 which is about the supply of electoral rolls. This Rule says that the Election Commissioner/ Authority shall provide the electoral rolls to the Returning Officers, who shall, wherever necessary for the purposes of the election to Local Councils cause the electoral rolls to be adjusted and arranged in such manner as may be directed by the Election Commissioner/Authority; and (d) Pages 13 and 14 of the judgment of the learned Election Tribunal were read out by the learned counsel for Ch. Abdur Rashid which {{URDU TEXT}} #TBS "A Collector/Returning Officer shall appoint for each Polling Station #TBE {{URDU TEXT}}
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"Collector means the Chief Officer of the revenue administration of the District concerned and includes a Deputy Commissioner and any other Officer especially appointed by the Government to perform all or any of the functions of a Collector under this Ordinance." "3. The Government may appoint an Election Commissioner, who shall be responsible for the organization conduct and supervision of elections to the local Government institutions and matters connected therewith." {{URDU TEXT}} "Subject to general supervision of the Election Commissioner/Authority, the Collector shall be responsible for the organization, conduct and supervision of elections to Local Councils within his district. In the performance of his functions under these rules the Collector shall be assisted by D.E.0." {{URDU TEXT}} a Presiding Officer and such number of Assistant Polling/Officer and Polling Officer as the Returning Officer, Assistant Polling Officer or Polling Officer." {{URDU TEXT}} ? "Electoral rolls; for each ward, there shall be maintained in the prescribed manner, a register in which shall be entered the names of persons who possess the qualifications and not suoject to any Of the disqualifications specified in the second schedule...... {{URDU TEXT}} "Electoral roll means an electoral roll prepared under these rules or adopted for the purpose of election of a member of a Local Council" (Underlining is mine) {{URDU TEXT}} (e) Mr. S. M. Zafar, Advocate has referred to the case of Karam Hussain v. Mallick Muhammad Zarait and others (1), in which case the Supreme Court accepted appeal and held that the election as a whole stood vitiated and fresh elections were ordered to be held for that seat of the District Council of gotii. (1) PLD 1984 SC (A J & K) 129 6. We have heard the learned counsel for the parties and have perused the record of the case, especially the challenged electoral rolls. 7. The following points fall for determination in these three writ petitions : (i) Whether the voters. Whose names were added in the list of the Ward No, 26 were voters in the list prepared in 1979 A. C. If so, whether the electoral rolls prepared in 1983 for the Ward No, 26 could be corrected ? (ii) Whether the addition of the names of the voters (whose names were added in the list of 1983 prior to the election held in October, 1983) amounted to correction or addition ? If so, whether this addition/correction was justified under law ? (iii) Whether the impugned order of the learned Election Tribunal was passed without lawful authority or whether the Election Tribunal has exercised the jurisdiction not vested in him by law ? - (iv) Whether the electoral rolls prepared in 1983 were sacrosanct and could not be challenged in any way, whatsoever, especially when they were printed in the Awan Printing Press ? (v) Whether the addition/correction of the electoral rolls had materially effected the result of the election in this case ? (vi) Whether the inclusion/addition of some names of voters concerning the Ward No, 26 was justified under circumstances as a result of which the petitioner Ch. Aurangzeb was declared as a successful candidate securing the highest number of votes ? (vii) Whether the voters can assail the judgment of the Election Tribunal regarding the order which disenfranchised them without giving them an opportunity of being heard ?
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8. Let us first make it clear that the law applicable in this case is the following :- (1) The Azad Jammu and Kashmir Local Government Ordinance 1983. (2) The Azad Jammu and Kashmir Local Government Election Rules, 1983. 9. In the Azad Jammu and Kashmir Local Government Ordinance, 1983 section 2 is about definitions : Section 2.. (xi) 'Election Commissioner' means the Election Commissioner appointed tinder this Ordinance and includes an Additional and a Deputy Election Commissioner ; (x1i) 'Elector' means a person who is entitled to vote at an election and whose name appears in the Electoral Rolls ; (xiii) 'Election Tribunal' means the Election Tribunal constituted under this Ordinance ; (xix) 'Local Council' means a Council/constituted under this Ordinance and includes Union Council, Markaz Council, District Council, Town Committee and Municipal Committee ; (xth) 'Member' means a member of Local Council; (xxiii) 'Municipal Committee' means a Municipal Committee constituted under this Ordinance; (xxv) 'Rules' means rules made under this Ordinance , ' Section 3 reads :- (1) The Government may appoint an Election Commissioner, who shall be responsible for the organization, conduct and supervision of elections to the local Government institutions and matters connected therewith. "5. Local Councils.-As soon as may be, the following Local Councils shall be constituted in accordance with the provisions of this Ordinance ; (a) (b) (c) (d) . .... (e) ( f) A Municipal Committee for an urban area consisting of more than ten thousand population except in the case of a district headquarter where a Municipal Committee shall be constituted irrespective of its publication. ' Section 13 is about the Constitution of Municipal Committees. ' Section 17(d) is about the wards of Municipal Committee. Section 18 is about the Electoral Rolls. It reads :- (1) For each ward there shall be maintained, in the prescribed manner, a register in which shall be entered the names of persons who possess the qualifications and are not subject to any of the disqualifications specified in the second schedule. (2) The register maintained under subsection (1) shall be the electoral roll for the ward: ' Provided that for the first and second elections under this Ordinance the electoral rolls prepared by the Chief Election Commissioner for election to the Assembly would be used after such re- arrangement as may be necessary : ' Provided that no name shall be omitted or added. (3) The Electoral roll shall from time to time be amended and revised in the prescribed manner. (4) The inclusion of a disqualified person, or the omission of a qualified person from, the electoral roll, or any other defect in its preparation or maintenance shall not, by itself vitiate any election to, or any act or proceedings, of, any local council constituted on the basis of such electoral roll. ' Section 19: "Election. -Every person whose name is entered in the electoral roll, and no person whose name is not so entered, shall be entitled to cast a vote at an election of a Local council. ' Section 19 is about Election. It reads :
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Conduct of elections.-(1) Subject to such directions as may from time to time be issued by the Election Commissioner, all elections to local councils under this Ordinance shall be organized and conducted in accordance with the rules, and such rules may provide for all matters connected therewith or incidental thereto, including by elections, and corrupt or illegal practices and other election offences, and penalties, therefore, submission, trial and disposal of election petitions." ' The second schedule attached to this Ordinance is about the qualifications and disqualifications of Electors and Members 10. In exercise of the powers conferred by section 82 of the Azad Jammu and Local Government Ordinance 1983, the Azad Government of the State of Jammu and Kashmir enforced the Azad Jammu and Kashmir Local Government Election Rules, 1983, Rule 2 is about definition. ' Rule (2) (ix) 'Election Commissioner/Authority means the Election Commissioner / Authority appointed under these rules for holding elections to local Councils; (x) `Elector' means a person who is entitled to vote at an election and whose name appears in the electoral rolls ; (xi) 'electoral roll' means an electoral prepared under these rules or adopted for the purpose of election of a member of a local council; (xii) 'election petition' means a petition made under the Ordinance and these rules calling an election into question; (xiii) 'election tribunal' means an Election Tribunal appointed under the tribunal cc/these rules for the trial of election petitions ; (xvi) 'material irregularity' means non-compliance with the provisions of the rules which materially affect tne results of an election; (xxiv) 'Rules' means Azad Jammu and Kashmir Local Government Elections Rules, 1983; (xxxii) 'Voter' in relation to any ward means a person whose name is borne on the electoral roll of that ward ; (xxxiii) 'Ward' means an area of a Local Council delimited under sub-rule (1) of rule 8 for the purpose of elections of a member ; ' Rule 12 is about the Supply of Ekectoral Rolls. It reads as follows :- "(1) Supply of Electoral Rolls.-(1) The Election Commissioner/Authority shall provide the electoral rolls to the Returning Officers, who shall, wherever necessary for the purposes of the election to local councils cause the electoral rolls to be adjusted and arranged in such manner as may be directed by the Election Commissioner/Authority. (2) The Returning Officer shall provide to the Presiding Officer of each polling station copies of electoral rolls as adjusted and arranged by him under sub-rule (i) of this rule and containing the names of voters entitled to vote at the polling station. (3) Such numbers of printed copies of electoral rolls or as the case may be the copies of electoral rolls as have been adjusted and arranged under sub-rule (1) of this rule as are available with the Returning Officer may be made available for sale at the rate fixed by the Election Commissioner/Authority. (4) The electoral rolls as adjusted and arranged for each ward under sub-rule (1) of this rule shall .- be displayed at the office of Returning Officer for public inspection at least three days before the date fixed for the receipt of nominations. The Returning Officer may allow any person to take an extract, or make out a copy of the electoral rolls. ' Chapter VI of these Rules relates to the Election Petition. Rule 60 reads as follows.-- "Grounds for declaribg an Election void.--The Election Tribunal shall declare an election to be void if it is satisfied that : (a) the nomination of 'the returned candidate was invalid :
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(b) on the nomination day the returned candidate was not qualified for or was disqualified from being elected for the ward ; (c) failure of any person to comply with the provision of the Ordinance or these rules has materially affected the results of the election; or (d) the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper; or (e)' the improper reception or refusal of any vote or the reception of any vote which should not have been received, has materially, affected result or the election ; or (f) the election of the returned candidate has been procured or indu. Ced by any corrupt practice, illegal act ; (g) a corrupt practice or illegal act has been committed by returned candidate or his authorised agent or by any other person with the connivance of the candidate or his authorised agent; or (h) corrupt practices, material irregularives, illegal payments, employments or hirings have so extensively prevailed at the election…
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