P L D 1965 (W (PLP)

INAMULLAH, J.‑

This is a petition under Article 98 of the Constitution. The facts giving rise to the petition briefly put are these. The petitioner was a candidate to the Electoral College from Unit No. 214, Murad Khokhar, Taluka Naushahro Feroze, Nawabshah. So was the respondent No.

3. The election was held on 5th November 1964, and the petitioner was declared successful. The respondent No. 3 challenged the election of the petitioner by an election petition. The Election Tribunal, respondent No. 1 set aside the election of the petitioner by its order dated the 20th April 1965.

2. The main ground on which the election of the petitioner was set aside by the Tribunal was that a number of persons who were minors had cast vote in the election from the said unit.

3. The only point for which we admitted the petition was for‑consideration of the question whether the Election Tribunal could go against the entry made in the electoral roll. In other words, the question that required consideration was whether the electoral roll was conclusive as to the entries made therein and was binding upon the Election Tribunal.

4. We have heard the learned Advocate, Mr. Hayat Junejo for the petitioner, Mr. Abdul Hayee Qureshi, the learned, Additional Advocate‑General for respondents 1, 2 and 4 and Mr. Chandnani for respondent No.

3. The learned Advocate for the petitioner contended that the entries made in the electoral roll were conclusive and final and could not be gone into by the Election Tribunal. On the other hand, the learned Advocates for the respondents contended that the Election Tribunal could go into the question whether the voters did possess the requisite qualification prescribed by the Constitution and Electoral College Act, 1964. We have come to the conclusion, for various reasons which we would presently mention, that the electoral roll is conclusive and binding on the Election Tribunal.

5. The provisions‑of the Electoral College Act, 1964, in the first place, itself lead one to the conclusion that the intention of the Legislature was to give finality to the electoral roll. In this connection, we would make a reference to some of the provisions of the Electoral College Act, 1964, (hereinafter called the Act). Under section 7 of the Act the Commissioner is required to appoint a Registration Officer for each electoral unit for the purpose of preparation of an electoral roll for that unit. The Registration Officer has to prepare a draft electoral roll in accordance with section 8 of the Act containing the name of the voter who, on the qualifying date,‑ (a) is not less than 21 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. After the Registration Officer has prepared a draft electoral roll he has to publish the same in the prescribed manner together with a notice inviting claims and objections. The Registration Officer thereafter has to consider the objections and the claims and prepare a final electoral roll. The Registration Officer has to publish in the prescribed manner the final electoral roll for an electoral unit. A final electoral roll under sub‑clause (6) of section 8 of the Act has to come into force immediately upon its publication and shall, as amended and corrected, remain in force until revised under section

12. All that section 12 lays down is that the electoral roll shall be revised annually and that the Commissioner may at any time require the revision of the electoral roll of any electoral unit if he, for any reason, considers such a revision to be necessary. It would appear from section 8 of the Act that the Legislature intended‑ by prescribing a detailed procedure to give finality to the electoral roll. In this connection we would make particular mention of section 23(3)(iii) of the Act. Section 23 provides the method of scrutiny by the Returning Officer. The relevant provision which requires consideration reads as under:‑ "(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll." It would appear from the above that even the Returning Officer who was to scrutinise the nomination paper had no power to go into the correctness or validity of any entry in. the electoral roll, the idea being that where a final electoral roll has been prepared, the same should he taken for all intents and purposes to be conclusive. If the intention of the Legislature was not to make it conclusive, the Returning Officer would not have been forbidden to go into the correctness or validity of any entry in the electoral roll. It would have been desirable if the electoral roll was not final to allow the Returning Office at the earliest to go into the entries made into the electoral roll, for instance, age without burdening the candidate with expense of the election and await till the Tribunal was constituted.

6. In the second place, after going through the Rules framed by the Central Government under section 86 of the Act, we have no doubt that the electoral roll is conclusive for all intents and purposes. The rules have prescribed a very elaborate procedure. Under rule 9 of the Rules, the Commissioner shall, for a group of electoral units, appoint a Revising Authority for the purpose of deciding claims and objections with respect to the electoral rolls for such units included in that group. It would appear that the Registration Officer was not the final authority. His orders in respect of claims and objections could be revised by a Revising Authority. In other words, under the Rules there was an appellate authority so far as electoral rolls were concerned. The intention of the Legislature and the framers of the Rules appears to be to give one right of appeal as in respect of the electoral roll to the Revising Authority as in respect of election contest to the Election Tribunal. In this connection we would reproduce sub‑rule (4) of rule 14 which deals with appeals. It runs as under:‑ "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." The framers of the rule were not satisfied with what we have reproduced above. They further expressed the same idea about the finality of the electoral roll under rule 19 of the rules which runs as under:‑ "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." The finality that has been given to the orders passed by the Revising Authority against any objection as to any entry in the electoral roll cannot be gone into by another authority namely Election Tribunal that has been created under the same Rules and the Act. The Election Tribunal is bound by the Rules framed by the Central Government.

7. In the third place, the constitutional, provisions make it quite clear that once a person is enrolled as a voter he has a vested right to vote. He cannot be deprived of that constitutional right. In this connection we will refer to some of the Articles of the Constitution. Under Article 156 an electoral roll shall in accordance with law be established and maintained for each electoral unit. Under Article 157, except as provided by law, any citizen who is not less than 21 years of age, who is not of unsound mind and who is a resident 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 the electoral unit. It would appear from the above provision of the Constitution that where a person possesses the requisite qualification he shall be entitled to be enrolled on the electoral roll for that electoral unit. Once a person's name appears on the electoral roll of a particular electoral unit he is entitled to the right conferred on him under Article 158 of the Constitution. Sub‑clause (1) of Article 158 reads as under:‑-- "The persons enrolled on the electoral roll for an electoral unit shall in accordance with law from time to time elect from amongst themselves a person who is not less than 25 years of age who shall be known as an elector for that unit." It appears from the above constitutional provision that a person who is enrolled on the electoral roll has got a constitutional right to elect a member from an electoral unit. This, to our mind, cannot be taken away by the Election Tribunal by re‑opening the entries of the electoral roll. In this connection ‑a reference ma be made to the definition of `voter' given under the Electoral College Act. It means in relation to an electoral unit, a person whose name for the time being appears on the electoral roll for that unit. A person whose name appears on the electoral roll has, as we have already observed, a constitutional right to cast vote in accordance with Article 158 of the Constitution so long as his name is not removed from the electoral roll in accordance with the procedure provided in the Act. We would also like to observe that the intention of the framers of the rules and the Act was to attach conclusiveness and finality to the electoral roll. That this is so appears from the Act as well as from the rules that no provision has been made for making a voter a party in the election petition. If the intention was to allow a candidate to challenge the electoral roll in an election petition, it would have been provided that the voter, whose right to remain on the electoral roll is challenged, should be made a party. The Election Tribunal cannot defranchise a person whose name appears on the electoral roll without giving him an opportunity to be heard. The right of franchise conferred under Article 157 is a constitutional one which cannot be taken away without affording an opportunity to the voter. This would be against the maxim "audi alteram partem". In this connection we may also observe that where the rules have provided a thing to be done in a particular manner it is to be done in the same way or not at all. The rules provide a certain procedure for the removal of the name of a voter from the electoral roll. The effect of the order of the Election Tribunal would be to remove a certain person from the electoral roll. That he could not do except as provided under the rules and the Act.

9. Mr. Hayat Junejo, the learned Advocate for the petitioner relied on the case of Imtiazali v. Ghulam Muhammad Butt and another (P L D 1958 S C (Pak.) 228) in support of his contention that the Election Tribunal cannot go behind the final electoral roll. The authority, no doubt, supports the contention of the learned Advocate for the petitioner. Their Lordships of the Supreme Court in that case considered rule 12 of the District Board Election Rules, 1952 and came to the conclusion that finality was attached to the electoral roll. In the present case also the rules that we have already referred to, namely, rules 14 and 19 of the Electoral College Rules, 1964 attach a finality to the Electoral roll. It is useful to make reference to the observation made by their Lordships of the Supreme Court while concluding their obser vation that the electoral roll was final. It runs as under:‑ "This view is based upon a settled principle of election law that Election Commissioners 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." So far as the question of personal disqualification is concerned, we will come to this while dealing with the contention of the learned Advocate for the respondents. In support of this contention Mr. Hayat Junejo also relied on a Full Bench decision of the Allahabad High Court Ghulam Mohiuddin v. Election Tribunal and another (AIR1959All.357). It is not necessary to make a reference to the decision in detail in view of the authority of our Supreme Court. Lastly, we will make a reference to a Division Bench decision of our Court reported in Diwan Mahboob Ahmad v. The Controlling Authority, Bahawalpur and another (PLD1961BJ15) where a similar enactment was in question. It runs as under: "There is no doubt that the inclusion of a person's name in the electoral roll, which has been regularly prepared in accordance with the procedure laid down in Electoral Rolls Act, would be conclusive proof that the person has a right to vote and such an electoral roll should be acted upon in all matters relating to the election in question. But it is an altogether different thing to assert that the, electoral roll must be regarded as conclusive with regard to the individual entries mentioned therein even when a question regarding any of those individual particulars arises in proceedings which are not connected with that election. For instance, an electoral roll contains the name of the elector's father. Can it be said that such an entry must be regarded as conclusive about the parentage of the elector in proceedings where a question about his legitimacy is being raised for determining his right to inheritance? The Electoral roll may be cited as a relevant piece of evidence, but by no stretch of imagination can it be accepted as conclusive on the question of parentage. Same is the case with the entry relating to age given in such an electoral roll. The only point which is concluded by the entry in the electoral roll is that the elector must be considered as satisfying the minimum requirement of age which would confer on him the right to vote, but no other conclusion can flow from such an entry. In other words, the conclusiveness which attaches to an electoral roll is only with regard to the right to vote enjoyed by a particular person whose name appears in in the electoral roll, but with regard to no other matter. To extend the scope of conclusiveness of an electoral roll beyond the question of the right to vote at the relevant election would mean going beyond the law under which the electoral roll is prepared and the purpose for which it is prepared. It is thus clear that the entry of the petitioner's age in the electoral roll is not conclusive for any matter other than the one concern ing his right to vote." We respectfully agree with this observation.

10. Mr. Abdul Hayee Qureshi, the learned Additional Advocate‑General raised two‑fold contention before us which we propose to dispose of separately.

11. He contended, in the first place, that rule 36(1A) of the Electoral College Rules, 1964 is wide enough to empower the Election Tribunal to go into the entries made in the electoral roll, namely, into the question of the requisite qualification of a voter, the relevant provision relied upon reads as under: "36(1A). 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." The learned Advocate laid particular emphasis on the word `contravention'. He submitted that the Tribunal was entitled to find out whether any provision of the Act has been contravened or not. In other words, it was urged that one of the provisions of the Act, is, as provided under section 8 of the Act, that the person whose name would be, brought on the electoral roll is not less than 21 years of age. If a person who is less than 21 years of age is brought on the electoral roll it is open to the Tribunal to go into that question. There is not much force in this contention. One of the rules of interpretation of any statute or any legal document is that it must be read as a whole. The other rule of interpretation is that the various rules of an enactment must be so read together that they are reconcilable and do not conflict with each other. Keeping these two principles in view, we have no doubt that the Election Tribunal was precluded from going into the question of the validity of the electoral roll. We may again make a reference to sub‑rule (4) of rule 14 and rule 19 of the rules. The rules make the entries in the electoral roll, subject to the orders passed by the Revising Authority, final. The finality attached under the rules to the electoral roll would be meaningless if it could be challenged before the Tribunal. Moreover, as already observed the intention of the framers of the rules was to give one right of appeal to the person aggrieved against the entries in the electoral roll, and that was provided under rule 14 just as one right of appeal has been given to a defeated candidate by way of an election petition. From a perusal of the rules it does not appear that the Central Government contemplated to give two rights of appeal to an aggrieved person against the entries made in the electoral roll. The contravention referred to under rule 36(1A) would be in respect of the conduct of the election and no more.

12. In the second place, Mr. Qureshi, relying on section 23 (3)(d)(iii) contended that if the intention of the Legislature was to debar the Election Tribunal from going into the correctness or validity of any entry in the electoral roll the same would have been mentioned somewhere in the Act. The relevant provision of section 23 relied upon reads as under: "The Returning Officer shall not enquire into the correctness and validity of any entry in the electoral roll." The submission is that there is no such bar on the power of the Election Tribunal. There is not much force in this contention. It is true that the Electoral College Act does not put any bar on the power of the Election Tribunal to enquire into the correctness or validity of any entry in the electoral roll. The Legislature, however, did not think it necessary to put any such bar on the Election Tribunal. The Returning Officer, who was the Chief Scrutinising Officer having been debarred from going correctness or validity of any entry in the electoral roll, not necessary to further put any bar on the Election Tribunal.

13. Mr. Chandnani, the learned Advocate for the respondent No. 3 adopted the argument of Mr. Qureshi and further submitted that the. Election Tribunal could go into the question of the disqualification of a voter. The learned Advocate submitted that it was a disqualification for a person who had been brought on the electoral roll if he was found to be less than 21 years of age. This is no doubt an ingenious argument, but not of much substance. The learned Advocate was unable to refer us to any provision either of the Constitution or the Act or the rules made thereunder in support of his contention providing disqualification. Section 8 of the Act only provides the qualification of a person who can he brought on the electoral roll. So does Article 157 of the Constitution. Neither the Constitution nor the Act provides any disqualification as such in respect of a voter. AI person who is less than 21 years of age cannot be said to be disqualified. All that can be said that he does not possess the requisite qualification. There is a distinction between qualification and disqualification. A person cannot be said to be qualified unless he possesses the requisite qualification. It is only when a person does, possess the qualification for a certain thing that he can be disqualified. A similar contention was raised in the case of Ghulam Mohiuddin v. Election Tribunal. In that case also only those persons could be enrolled as voters who had attained 21 years of age. The question for consideration was whether the Election Tribunal could go into the validity of the entries made in the electoral roll, It was observed as under:‑‑ "A person's non‑residence for the prescribed period or not attaining the age of 21 years is not his disqualification for registration but amounts to his being not qualified to be registered. So long as one is not qualified no question of disqualification arises. According to Murray's New English Dictionary `disqualification' means "die action of depriving of requisite qualifications" and "to disqualify" means to deprive of the qualifications required for some purpose. A disqualification is therefore not identical with the absence of qualification." Mr. Chandnani's object in making this submission was to bring his submission within the observation made by their Lordships of the Supreme Court in Imtiazali's case which we have already referred to above. His submission was that, according to the observation of their Lordships of the Supreme Court, the register of voters was conclusive on a Returning officer as well as on any Tribunal which was to enquire into the election unless there is some personal disqualification. The learned Advocate submitted that to be less than 21 years of ages was a personal disqualification within the meaning of the observation made by their Lordships of the Supreme Court and, therefore, this question could be gone into by the Tribunal. As we have already observed, it is not possible to hold that what is a qualification should be construed to be a disqualification. The observation of their Lordships of the Supreme Court was based on an English case Stove v. Joliffe' (9LRC734). In that case the Ballot Act had made a provision for qualifications as well as for disqualification. In the case of Stove, therefore, their Lordships held that the electoral roll was conclusive and final with this condition that if there is some personal disqualification that could be gone into by the Tribunal. In the present case, as we have already mentioned, neither the Act nor the Constitution makes any provision as to the disqualification of a voter. 'Mr. Chandnani has relied upon some Indian decision which we do not consider necessary to go into in view of our Supreme Court decision referred to above which has decided the question as to the finality of the electoral roll.

14. We have come to the conclusion, for the reasons that we have given above, that the Election Tribunal was wrong in reopening the entries in the electoral roll so as to hold that certain voters were not of the requisite age as provided under Article 157 of the Constitution, namely, they were below 21 years of age. We would, therefore, quash the order of the Election Tribunal dated the 20th April 1965. In the result, the petition is allowed and the petitioner continues to be a member of the Electoral College concerned. We make no order as to costs. S. A. H./S. Q. Petition allowed.