P L D 1983 Peshawar 10 (PLP)

Date of hearing : 29th August, 1982. The brief facts giving rise to this constitutional petition are that in Ward No: 2, Union Council Chagharzai, Tehsil Daggar, District Swat, a seat having fallen vacant, the Returning Officer (respondent No. 1) issued public notice for the election of a councillor to the said ward. Bakht Zamin petitioner and Hamidullah Khan (respondent No. 3) filed their nomination papers as candidates for the election. At the time of scrutiny on 3‑5‑1982, the peti tioner objected to the nomination of respondent No. 3 that since his name did not appear in the electoral rolls and he being not a voter could not contest the election. The Returning Officer (respondent No. 1), after having satisfied himself about the validity of the objection, rejected the 'nomination papers of respondent No. 3 and directed that he could prefer an appeal before the Appellate Authority between the 6th and 8th of May 1982, in accordance with the schedule programme published in this behalf. However, instead of filing the appeal, respondent No. 3 approached the Election Officer (respon dent No. 2) for the correction of the electoral rolls, wherein the entry at serial No. 25 was changed from "Mien Roohullah" to "Hamidullah" and the certificate issued by respondent No. 2 in this behalf on 5‑5‑1982 was produced by respondent No: 3 before the Returning Officer who accordingly, by review of his earlier order of‑rejection of the nomination papers of respondent No. 3 dated 3‑5‑1982, accepted the nomination paper of respondent No. 3 on 5‑5‑1982 and notified his name as a duly nominated and contesting candidate along with the petitioner for Ward No. 2 of the said Union Council.

2. The learned counsel for the petitioner contends that respondents No. 1 and 2 have acted without lawful authority as once the nomination papers of respondent No. 3 were rejected, his name could not have been included in the list of validly nominated candidates and the remedy available to respon dent No. 3 against the rejection of his nomination papers was by filing an appeal before the appellate authority within the prescribed period of three days as envisaged in the election programme. He further contended that the impugned correction in the electoral rolls was effected behind the back of the petitioner who, being the only candidate left in the field, became vested with a valuable right and in view of the provisions of rule 21 of N.‑W.F.P. Local Councils Election Rules, 1979, the Returning Officer should have declared him to have been duly elected to the Local Council concerned.

3. The learned counsel for respondent No. 3 argued that respondent No. 2, being the Registration Officer, was competent to make the necessary correction in the electoral rolls particularly when it was done before the expiry of the period prescribed for filing an appeal and that respondent No. 1 has not violated any law by accepting the certificate, about the correction of the name of respondent No. 3 in the electoral rolls, issued by the Election Officer in this behalf. He further contended that respondent No. 3 would have preferred an appeal for getting the necessary relief had the same relief been disallowed by respondents 1 and 2 and thus respondent No. 3 could not be penalized for the illegality committed by respondents 1 and

2. But it is clear that respondent No. 3 himself moved an application before the Election Officer for the correction of the electoral rolls and now it does not lie in his mouth to say that be cannot be made to suffer for the illegality committed by respondents I and 2.

4. The learned Assistant Advocate‑General appearing for respondents No. 1 and 2 contended that under section 26 of the N.‑W.F.P. Local Govern ment Ordinance, 1979 (Ordinance IV) of 1979, the electoral rolls prepared under the Electoral Rolls Act, 1974 (Act XXI of 197.4), for the election of Members of Provincial Assembly as amended from time to time have been adopted as electoral rolls for the election to the Local Councils and thus he asserted that under section 18 of Act XXI of 1974 an person could apply to the Registration Officer for the correction of any entry in an electoral rolls and the Registration Officer was competent to correct the rolls accordingly. He also referred to section 20 of the Act ibid that no revision or correction of any electoral rolls could be made after the electorate have been called upon to elect their representative and before such representative has been elected but the learned counsel frankly conceded that by virtue of section 26 of the N.-W.F.P. Local Government Ordinance, 1979 only the electoral rolls prepared under the Electoral Rolls Act, 1974 have been adopted and not the entire provisions contained in Act XXI of 1974.

6. Without going into the question whether sections 18 and 20 of the Elec toral Rolls Act, 1974 would be applicable to the present case, the fact remains that the Registration Officer (respondent No. 2) has allowed the correction of the entry in electoral rolls without notice to the petitioner who was the only contesting candidate in the field and further that the correction was made at the time after the constituents of the electoral area have been called upon to elect their representative. The relevant provisions governing the present situation are contained in rules 14 and 15 of N.‑W.F.P. Local Councils Election Rules, 1979. Under rule 14(3) the Returning Officer either of his own motion or upon any objection may conduct such summary inquiry as he thinks fit and may reject a nomination paper if he is satisfied that the candidate was not qualified to be or was disqualified for being elected as Member and under the proviso (iii) to the said section the Returning Officer is not competent to inquire info the correctness or validity of any entry in the electoral rolls. Rule 14(5) provides that a candidate whose nomination paper has been rejected under this rule may appeal against the rejection within the period specified in rule 15 to such officer as may be specified by the Authority and an order passed on such appeal shall be final. Rule 15(1) of the said rules provides that any. candidate whose nomination papers are rejected or whose name has been removed from the list of the contesting candidates, may appeal to the officer specified by the Authority in this behalf against such rejection or removal within a period of three days from the date following the date of rejection of such nomination papers or removal of his name from the list of the contesting candidates by the Returning Officer.

7. Thus it is clear that a specific remedy by way of appeal was provide, in the rules which respondent No. 3 failed to avail of and instead approached the Election Officer (respondent No. 2) for the correction of the electoral rolls after his nomination papers were rejected by the Returning Office (respondent No. 1). The learned counsel for the petitioner failed to point out any provision of law which enabled respondent No. 2 or for that matte respondent No: 1 to have allowed the correction of the electoral rolls as had been done by them in this case. The learned counsel's reference to the principal of law that an Authority competent to do an act was equally competent to undo the same, is inapt for the reason that in the presence of the specific, provision provided in law for filing an appeal against the order of rejection of the nomination papers, no resort can be had to the general principle of law as asserted by the learned counsel for the petitioner. The petitioner having failed to avail of the remedy of appeal provided .in law cannot be legally permitted to annul the order of the Returning Officer about the rejection of his nomination paper by approaching the Election Officer for the correction of the electoral rolls and thus in the circumstances, the order of rejection or his nomination paper, having not been appealed against, had become final. It is obvious that Election Officer (respondent No. 2) was not authorised by law to have corrected the electoral rolls at the instance of respondent No. 3 as his nomination paper already stood rejected by the Returning Officer and similarly the Returning Officer was not competent to review, his order by giving effect to the certificate of correction issued by respondent No. 2 in this regard. The action taken by the Returning Officer and the Election Officer (respondents Nos. 1 and 2) is obviously without lawful authority and without, jurisdiction.

8. It is admitted that the petitioner was the only validly nominated candidate for the election in the field after the rejection of the nomination paper of respondent No. 3 and thus under rule 21 of the N.‑W.F.P. Local Councils Election Rules, 1979 he was entitled to have been declared as duly elected member of the Local Council.

9. For the aforesaid reasons, this writ petition is accepted and the impugned orders of respondents Nos. 1 and 2 passed in favour of respondent No. 3 are declared as without lawful authority and of no legal effect. No order as to costs. S. A. H. Petition accepted.