P L D 1968 Supreme Court 235 (PLP)

FAZLE AKBAR, J.‑This appeal raises a question as to the scope of an inquiry in an election petition wherein an election is called in question under section 58 of the Electoral College Act, on the ground that the successful candidate was not entitled to be enrolled as a voter in the Unit from which he was elected. This question arises under the following circumstances. The name of respondent, Khurshed Alam Miaji, appeared in the draft electoral roll of Unit No. 6 of Union No. 2, Hinguli. His claim to be enrolled as a voter in Unit No. 5 was rejected by the Registration Officer, but on appeal to the Revising Authority, he succeeded in obtaining an order in his favour and was registered as a voter in Unit No. 5 of the said Union. The final electoral roll was then prepared in accordance with the order of the Revising Authority and his name was included in the electoral roll of Unit No.

5. He and Syed Aminuddin Chowdhury contested the last election from the said Unit No. 5 and be having secured the highest number of votes, was declared duly elected to the Electoral College of Pakistan. The defeated candidate, Aminuddin Chowdhury, filed an election petition challenging the validity of his election on the ground, inter alia, that the successful candidate was not entitled to be enrolled as a voter in Unit No.

5. The election petition was heard by the Additional Deputy Commissioner, Chittagong, acting as the Election Tribunal and he held that the successful candidate, Khurshed Alam, was not a resident within the meaning of section 10 of the Electoral College Act in Unit No. 5 and as such he could not be a voter or a candidate from the said Unit. In this view of the matter, he not only set aside the election of Khurshed Alam but also declared the defeated candidate as duly elected from Unit No. 5 of Union No. 2, Hinguli. It may be mentioned that the Tribunal did not consider other allegations that were raised in the petition. Khurshed Alam then filed a writ petition in the High Court challenging the legality of the order passed by the Tribunal. The learned Judges of the High Court took the view that "the authority who was to give final decision as to whether the petitioner (Khurshed Alam) fulfilled the qualification mentioned in Article 157 of the Constitution gave a decision that he did so. His order in our view was not revisable by the Election Tribunal". They accordingly held that the order of the Tribunal setting aside the election was passed without lawful authority, Special leave to appeal was granted to consider "Whether the High Court was right in holding that an entry in the electoral roll prepared under the Electrol College Act was final, not only against the powers of a 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." Mr. A. Sobhan, the learned counsel for the appellant, has contended that the expression "The decision of the Revising Authority shall be final" occurring in sub‑rule (4) of rule 14 of the Electoral College Rules, 1964, does not bar the jurisdiction of the Election Tribunal to examine the correctness or otherwise of such entry, because the Tribunal has been given full power to decide all questions relating to the election which, in its opinion, have materially affected the election. On the other hand, the learned counsel for the respondent Khurshed Alam has contended that the electoral roll having been duly prepared in accordance with the directions of the Revising Authority, the matter was finally concluded and the Election Tribunal had no jurisdiction to go into it. In order to fully appreciate the contentions raised by the learned counsel for the parties, it will be necessary to refer to the relevant provisions of the Constitution, the Electoral College Act, 1964, and the rules framed thereunder. Article 156 of the Constitution provides that: "An electoral roll shall, in accordance with law, be estab lished and maintained for each electoral unit." Article 157 enacts that "Except as provided by law, any citizen‑ (a) who is not less than twenty‑one years of age; (b) who is not of unsound mind; and (c) who is a resident of, or who is deemed by law to be a resident of an electoral unit, shall be entitled to be enrolled on the electoral roll for that electoral unit." Article 158(1) is as follows:‑ '6158 (1) The persons enrolled on the electoral roll for an electoral unit shall4 in accordance with law,, from time to time elect from amongst themselves a person who is not less than twenty‑five years of age, who shall be known as the Elector for that unit." From the above, it is clear that every person whose name is entered in the electoral roll maintained 'in accordance with law' is legally entitled to vote except those mentioned in Art.

157. Next we have to consider how the electoral roll is to be maintained under the law. 'Electoral roll' is defined In the Electoral College Act to mean 'an electoral roll for an electoral unit prepared under Chapter IV'. This Chapter which deals with preparation of an electoral roll, contains sections 7 to 13‑A. Section 7 empowers the Commissioner to appoint a Regis tration Officer for each electoral unit. Subsection (1) of section 8 says that: "The Registration Officer shall, under the superintendence, direction and control of the Commissioner, prepare for each electoral unit in the prescribed manner of a draft electoral roll containing the name of every citizen who, on the qualifying date:‑ (a) is not less than twenty‑one years of age; (b) is not of unsound mind; and (c) is, or is deemed under section 10 to be a resident of the electoral unit." Under subsection (2) the draft electoral roll will be published together "with a notice inviting claims and objections with respect thereto". Subsection (3) authorises the Registration Officer to make such additions or modifications in the draft electoral roll as may be required by any decision on a claim or objection. Subsection (4) provides that 'After modification or correction, if any, under subsection (3), the Registration Officer shall publish the final roll for an electoral unit'. Under subsection (5) the electoral roll may be amended. Subsection (6) says that the electoral roil shall come into force immediately upon publication under subsection (4) and will remain in force until revised under section

12. Under subsection (7) the electoral roll shall be maintained in the prescribed manner and copies are to be supplied on payment of prescribed fees. Section 9 empowers the Registration Officer to inspect any register of births and deaths maintained under any law. Section 10 defines 'resident' for the purpose of Art. 157(c) of the Constitution. Section 11 lays down that no person shall be enrolled more than once or in more than one unit. Section 12 deals with revision of an electoral roll. Section 13 provides that the validity of an electoral shall not be affected by failure to revise or by reason of any mistake. Section 13‑A empress the Commissioners to include a name in an electoral roll before or after publication of such electoral roll under subsection (4). We may now refer to the relevant provisions of the Electoral College Rules, 1964, framed under the act. Rule 8 provides for publication of the draft electoral roll. Under rule 9 the Commissioner is to appoint a Revising Authority for the purpose of deciding appeals under rule 14 with respect to electoral rolls. Rule 10 deals with forms of claims and objections. Rule 11 lays down the period for lodging claims and objections. Under rule 12 a person lodging a claim is required to produce such proof as he desires and while considering a claim the Revising Authority may hear such other person as desires to be heard. Rule 13 makes similar provision with regard to objections. Rule 14 provides for appeals to the Revising Authority against the rejection of a claim or the acceptance of an objection. Sub‑rule (4) of rule 14 says "in case an appeal has been filed under sub‑rule (3) the Revising Authority may call for the record and may make such enquiries as he deems fit and decide the claim or objection. The decision of the Revising Authority shall be final". Rule 16 empowers the Registration Officer to apply to a Revising Authority for inclusion in or exclusion from the electoral roll of the name of any person. Rule 19 provides that every decision of a Revising Authority under rules 14, 15, 17 and 18 shall be communicated to the appropriate Registration officer and shall be final. Rule 21 deals with the final publication of electoral rolls. Rules 22, 23 and 24 deal with amendment, revision and maintenance of electoral roll. This exhaustive reference to the relevant provisions of the Electoral College Act and the rules framed there under, has been made for the purpose of showing that the intention of the Legislature was to finalize the electoral roll by the actions taken by the Registration Officer and the Revising Authority. This also finds support from proviso (iii) of section 23 of the Act which says "the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll". 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. The electoral roll as revised by the Revising Authority would therefore, be binding on the Tribunal except as regards statutory disqualifica tions. In other words, if a person's name is entered in the electoral roll Maintain under the law and if he is not under and statutory disqualification be 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. This view also finds support from a large number of reported decisions. Some of these decisions while interpreting similar provisions in the Order‑in‑Council and rules made under the Government of India Act, 1919, held that the electoral roll was final .not only so far as the Returning Officer was concerned but also for the Election Commissioner. This Court while considering similar provisions in the District Board Election Rules in the case of Imtiaz Ali v.. Ghulam Muhammad Butt (P L D 1958 S C (Pak.) 228) observed :‑ "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 this 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. Jolifee (9 L R C P 734) 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 Boroughs' case (50 M & H 135), 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 done 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." In our opinion, the above observations are fully applicable to this case. If a successful candidate's name has been entered in the electoral roll and remained there up to the time of nomination his right to stand as a candidate cannot be challenged save and except on the ground of statutory disqualifications. The Election Tribunal had, therefore, no jurisdiction to enquire into the question whether the name of the respondent Khurshed Alam should or should not have been in the electoral roll of Unit No.

5. For these reasons we hold that the High Court has rightly quashed the order of the Election Tribunal. This appeal, therefore, fails and is hereby dismissed with costs. Appeal dismissed.