P L D 1968 Supreme Court 301 (PLP)

FAZLB‑AKBAR, J.‑‑ This appeal, by special leave, arises out of an election petition filed by this appellant, Rashid Ahmad Rahmani, before the Election Tribunal at Lahore, in which he prayed that respondent Mirza Barkat Ali's election to the Electoral College from Ward No. 20, Unit No. 498, Lahore should be declared to be void and that it should be further declared that he had himself been duly elected from the said constituency. The polling for the election in question took place on 4‑11‑64 and of the three candidates who stood for election, the appellant secured 136 votes, respondent Mirza Barkat Ali 162, and the third candidate did not secure any vote at all. Mirza Barkat Ali having secured the highest number of votes, was, therefore, decked duly elected. The appellant then filed an election petition before the Election Tribunal, Lahore, alleging that inclusion of the name Mirza Batkat Ali, the successful candidate in the final Electoral Roll Bark was in violation of the provisions of the Electoral College Rules, 1964. This question arose under the following Palo circumstances. Mirza Barkat Ali, on his return from Haj, filed an application on 22‑9‑64 before the Provincial Election Authority for inclusion of his name in the Electoral Roll of Unit No. 498, He was, however, directed to apply to the Registration Officer under rule 22 of he Electoral College Rules, 1964. On 25‑9‑64, he filed another application before the Additional Deputy Commissioner for inclusion of his name in the Electoral Roll which was however rejected on 28‑9‑64 by tile Registration Officer, Mr. Aslam Sukhera. On 30‑9‑64, final Electoral Rolls were published without his name. On 2‑10‑64, during the absence of Me, Aslam Sukhera on sick leave, he filed a third application before Mr. Jamshed Ahmad who was acting for Mr. Aslam Sukhera acid on 3‑10‑64 he ordered inclusion of his name in the Electoral Roll of Unit No.

498. On the same day, that is, on 3‑10‑64, the Provincial Government issued a notification ca11ing upon the electoral units to elect from each Electoral Unit a person to the Electoral College, On 9‑10‑64, the appellant kashid Ahmad Rahmani brought to the notice of the authorities concerned that in view of sub‑rule (3) of rule 22 of the Electoral College Rules, 1964, Mirza Barkat Ali's name could not be entered on 3‑10‑64 in the Electoral Roll because on the said date the electoral Unit had been called upon to elect its representatives, but he was asked to raise this objection before the Election Tribunal or the High Court. Hence, after the election, he challenged the election of Mirza Barkat Ali before the Election Tribunal on the above ground. The Tribunal upheld his objection and not only set aside the election of Mirza Barkat Ali but also declared the appellant Rashid Ahmad Rahmani as duly elected candidate from Electoral Unit No.

498. Mirza Barkat Ali then moved a writ in the High Court against the order of the tribunal. The learned Judges of the High Court to the view that "so far as the question of the inclusion of the petitioner (Barkat Ali) name in the Electoral Roll is concerned, even if it was in contravention of rule 22(3) of the Rules of 1964, it was not within the jurisdiction of the Election Tribunal to go into that". In support of this view, they relied on subsection (2) of section 13 of the Electoral College Act, 1961. They, therefore, accepted the writ petition and set aside t44e order of the Election Tribunal. Special leave to appeal was granted to the appellant in this case to consider the following three points :‑ (i) Whether sub‑rule (3) of rule 22 of the Electoral College Rules, 1964, was an absolute bar to the inclusion of the name of the respondent in the Electoral Roll after the Electoral Unit concerned had been called upon to elect its representative , (ii) Whether a breach of the sub‑rule had the effect of rendering the election of the respondent illegal and void ; and (iii) Whether the. Tribunal acted with lawful authority in declaring the petitioner, who had secured lesser number of votes, as duly elected. In order to appreciate the above points, it will be convenient at this stage to set out the relevant sections of the Electoral College Act, 1964, and the Rules framed thereunder. Section 8 of the Act deals with adult franchise and preparation of electoral rolls, etc. Under subsection (1) the Registration Officer is directed to prepare for each electoral unit a draft electoral roll containing the name of every citizen who on the qualifying date is not less than 21 years of age is not of unsound mind and is deemed under section 10 to be a resident of the Electoral Unit. Under subsection (2) objections are invited with respect to the draft elector al roll prepared under subsection (1). Subsection (3) empowers the Registration Officer to dispose of the said objections and to make such additions or modification., in the draft electoral roll. as may be necessary. Subsection (4) empowers the Registration Officer to publish in the prescribed manner the final electoral roll. Subsection (5) provides that an electoral roll may be amended in the prescribed manner from time to time. This subsection contemplates (as it stood. at the relevant time) inclusion of name of a person who has become qualified to be enrolled after the preparation of the roll. S2;bsection (6) says that electoral roll shall come into force immediately upon its publication under subsection (4) and shall remain in force until revised under section

12. Sub section (7) provides that copies of the electoral rely shall be supplied to any person applying therefor on payment of prescribed fees. Section 12 deals with revision of electoral rolls. Sub section (2) gives power to the Commissioner to revise the electoral roll of any electoral unit if he so considers necessary. Section 13 says that the validity of electoral rolls, etc., is not to be affected by failure to revise or by reason of any mistake. Section 13‑A which was added by the Electoral College (Amendment) Ordinance VIII of 1964 gives the Commissioner very wide power to include a name in an electoral roll. Rule 22 of the Electoral College Rules, 1964, lays down procedure for amendment of the electoral roll. Under sub rule (1) any person whose name is not included in the electoral roll and who claims that he is or has become entitled to be enrolled on the roll, may apply to the Registration Officer for inclusion of his name. Sub‑rule (2) snakes provision for correction of the existing entry its the electoral roll. Sub‑rule (3; is in these terms :‑ "No application under sub‑rule (1) shall be entertained, and no amendment under sub‑rule (2) of any electoral roll upon any such application shall be made, at any time after the electoral unit to which the application relates, has been called upon to elect its representatives and before a member of the Electoral College has been elected provided that no election shall be postponed on the ground that any such application is pending disposal on the day a4 electoral unit is called upon to elect it; representatives," Sub‑rule (4) provides that an application for amendment shall be accompanied by a fee It

5. Under sub‑rule (6) the registration Officer can amend the electoral roll of his own notion after following the procedure laid down therein. Sub rule (7) says "(7) Any person aggrieved by the decision of the Registration Officer upon an application under sub‑rule (1) or sub‑rule (2) or by any amendment of an electoral roll under sub‑rule (6), may, within one month of such decision or amendment, appeal to the Revising Authority and the decision of the Revising Authority on such appeal shall , a final." Rule 3 deals with the revision of electoral rolls and rule 24 with their maintenance. Mr. Khursheed Ahmad, the learned counsel, has contended that in view of the clear provisions of sub‑rule (3) of rule 22, the Registration Officer was not competent to enter the name Of the respondent Mirza Barkat All in the electoral roll on 3.10‑64, because on the said date the Electoral Units had been called upon to elect their representatives Sub‑rule (3) in clear terms forbids the Registration Officer to entertain an application , for amendment of electoral roll in certain eventualities. The cope of this rule is limite‑6 by the wording of subsection (5) of ration 8 of the Act (as it then stood) to inclusion of fresh names of those who became qualified to be enrolled after the rolls have en finally published and not of those who were all along so qualified. It is, therefore obvious that no finality could attach to his action in violation of the statutory injunction. This is also clear from sub‑rule (7) which lays down that finality would attach to the decisions which are made under sub‑rules (1), (2) rid (6). The Attorney‑General and the Advocate‑General who have appeared in this case to assist the Court at our request, have Round it difficult to assail the above contention of Mr. Khursheed Ahmad. They have been candid enough to say that in view to the clear provisions of sub‑rule (3) of rule 22 the name of Mirza Barkat Ali could not be entered in the Electoral Roll on 3‑10‑

64. A similar question arose in the case of Munir Ahmad v. .returning Officer, Karachi and others (P L D 1965Kar. 1) and a Division Bench ,‑4 the High Court, observe) :‑‑ "Now, in the present case, as already stated, the Electoral Unit had been called upon to effect its representative by a notification issued by the Chief Electoral Commissioner on the 3rd of October 1964, and the time limit set for this purpose was the 21st of November 1964. It is clear to us that during this period namely, between the 3rd of October and the 21st of November 1964, n,) additions or amendments could be made to the final Electoral Roll relating to this unit. The Registration Officer was, therefore, not competent in law to add the names of the petitioner or his supporters, or that of respondent No. 3 to the Electoral Roll which had already been finalised before the 3rd of October 1964." It will suffice to say that sub‑rule (3) has been correctly interpreted by the High Court in the above case. We have, therefore, no hesitation to hold that the Returning Officer acted illegally and without lawful authority in entering the name of Mirza Barkat Ali in the final Electoral Roll on 3‑10‑64 and as such the latter had not the necessary qualifications to contest the election in question. The High Court has, however, taken the view that the Tribunal was not competent to go into the question of correctness or otherwise of the electoral roll and that the final electoral roll was conclusive on the Tribunal. It is no doubt true that the scheme of the Act and the rules seems to be that the question as to the right to be enrolled as a voter should be decided in the appropriate forum mentioned therein. If there is defect in the draft electoral roll that defect has to be brought to the notice of the Registration Authority in accordance with the provisions of the Rules. Further, under rule 14 an appeal would lie against rejection of such objection to a Revising Authority and his decision "shall be final". This however not being a case of correction of the draft roll, the above Rules have no application here. Action of the Registration Officer cannot also be regarded as one of revision of the electoral roll under section 12 at the direction of the Commissioner. Similarly, subsection (2) of section 13 of the Act on which reliance has been placed by the High Court, is also not applicable to this case. Section 13 is in these terms :‑‑ "

13. Validity of electoral rolls, etc., not affected by failure to revise or by reason of any mistake.‑ (1) If, for any reason, an electoral roll is not amended and corrected under section 8 or revised under section 12, the validity or continued operation of the electoral roll as established, or as earlier amended and corrected or revised, as the case may be, shall not thereby be affected. (2) An electoral roll shall not be invalid by reason of any misdescription of a person enrolled or registered thereon, or of omission of the name of any person not so entitled." It lays down that validity of electoral rolls shall not be affected by failure to revise or by reason of any mistake or omission. In other words, an election cannot be called in question merely because the names of some persons qualified to vote were not recorded in the electoral roll. Similarly, mistakes or omissions in the electoral roll will not vitiate the election. This is, however, not a case of misdescription, mistake or omission. Here, the question is whether the inclusion of Barkat Ali's name in the final electoral roll was legal and proper. This is really a case of amendment of final under sub‑rule (3) of rule

22. As pointed out above, of the designated authority in derogation of the provisions of the said sub‑rule could not be regarded as final. If the Registration Officer acted legally and within the powers given to him under the Act and the Rules, then his action would not be subject to correction by the Tribunal. But when his order is patently and manifestly against the provisions of the Rules and beyond his powers, he cannot claim such privilege. The Act o the Rules do not make any provision for rectification of such illegal acts of the Registration Officer. Hence, when the appellant made an application on 9th October 1964, before the Chairman, Provincial Election Authority, West Pakistan, he was informed by the Deputy Election Commissioner, Lahore, that "the Provincial Election Authority is of the view that legally, once nomination papers have been accepted, no change can be made except either by an order of the Election Tribunal or the High Court". Hence, he was forced to seek his remedy before a Tribunal. Reliance was placed on the decision of this Court in Imtlas All v. Ghulam Muhammad Butt and others (P L D 1958 S C 228) in support of the contention that the Tribunal could not go behind the final electoral roll. In the above case Maujo‑ki‑Bhet was included in the electoral roll which itself was prepared in accordance with law, that is to say, after publication of the preliminary roll, invitation of claims and objections and after correction of that preliminary roll on the basis of the decision made by the Revising Authority in relation to such claims and objections as were received. The Court relying on the relevant District Board Election Rules held that after finalisation of electoral roll its accuracy could not be challenged before the Commission. In this connection, it was observed that "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." In the instant case the question is otherwise. The name o respondent Mirza Barkat Ali has been included in the electoral roll not in accordance with law but in clear disregard of the mandatory provisions of sub‑rule (3) of rule

22. Hence, it is not a question of an irregularity as was found in the above case but an illegality which has arisen exclusively out of the manner in which the Registration Officer has performed his duties. Hence, the validity of his action must be judged in relation toll the peculiar circumstances of the case. We are alive to the fact that this complaint did not relate to anything done at the polling but was due to official actions antecedent to the polling. Normally, a Tribunal cannot enter into such questions because the electoral roll is conclusive on al Tribunal unless there be some personal disqualification. It is however, not necessary to enter into the question whether inclusion of the name of Mirza Barkat Ali in violation of sub‑rule (3) of rule 22 could be disregarded as a personal disqualification and whether it was a case of improper acceptance of the nomination paper. It will suffice to say that this is one of the extreme cases where the Tribunal, for justice and fair play and in public interest, has set aside the election because the Registration Officer in violation of his statutory duty amended the final electoral roll and the authorities concerned declined to exercise their jurisdiction in the matter. In these circum stances, the Tribunal was justified to act in aid of justice and to give relief to the appellant. To hold that though the voter has a right to claim that the Registration Officer should perform his statutory duty, yet he has no remedy in the situation that has arisen, would amount to denial of statutory right to him. Such a proposition cannot he accepted. Now, the question is whether in the facts and circum stances of the case the Tribunal was justified in declaring the appellant Rashid Ahmad Rahmani as duly. elected from Unit No.

498. Sub‑rule (1‑A) of rule 36 is as follows:‑ "(1‑A) The Tribunal shall declare the election of the returned candidate or the :.election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules." From the second part of the rule it is clear that before the election can be declared as a whole void, the Tribunal must find that the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules. Now, in this case the respondent Mirza Barkat Ali secured 162 votes and the appellant Rashid Ahmad Rahmani 136 votes. In order to ascertain whether the election has been materially affected the Tribunal has to be satisfied whether the votes given to Barkat Ali should be thrown away so as to give the seat to Rashid Ahmad Rahmani who has secured lesser number of votes. It is impossible to foresee what the result would have been if Barkat Ali had not been in the field. There was also a third candidate and it would be possible to anticipate whether some or all the wasted votes would riot have gone to him. Hence, such a question cannot be answered on speculation or conjectural basis. The Courts in England have laid down a perfectly sensible criterion upon which the Tribunal care proceed to declare its opinion in such a case. Their conclusions have been summarised thus in paragraph 549 of Halsbury's Laws of England, 3rd Edition, Vol. 14 :‑ "

549. Votes given to a disqualified candidate ‑‑Votes given for a candidate who is disqualified may in certain circum stances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary; The disqualifica tion must be founded on some positive sad 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 electors voting for the disqualified ‑person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creating the candidates disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good. If after deducting the votes given after such notice from the total number of votes given for the disqualified candidate he remains in a majority, the minority candidate cannot be seated and there must be a fresh election." This question has also been fully discussed in Re : Bristol South‑East Parliamentary Election ((1961) 3 A E L R 354). In the instant case the voters could have had no notice of the fact that inclusion of Barkat Ali's name in the final electoral roll was in violation of sub‑rule (3) of rule

22. Hence, they cannot be disfranchised for no fault on their part. Votes given by them without notice of the above disqualification ought to be treated as good votes. As Barkat Ali had majority votes, the minority candidate cannot be declared elected. For the reasons stated above, we must hold that by reason of failure of the Registration Officer to act in accordance with the provisions of the Rules, the result of the elections has been materially affected and hence the election should be declared as a whole void. A similar question arose in the case of Sanaullah v. Election Tribunal, Gujrat and others (P L D 1966 Lah. 97) and the Court rightly ordered a fresh election. We accordingly allow this appeal, set aside the judgment and order of the High Court and restore that of the Election Tribunal with the modification that the election to be declared as a whole void and that there should be a fresh election to the Electoral College from Ward No. 20, Unit No.

498. We, however, make no order as to costs. A. H. Order accordingly.