1999 PLP 2841 (MLD)

Ali Akbar Qureshi for Respondent No.8 Date of hearing: 15th October, 1998. It is proposed to decide Writ Petitions Nos. 11008 of 1998 and 21121 of 1998 by the single judgment as factual and legal controversy is the same.

2. The relevant facts are that the petitioner and respondent No.8 were the candidates from Ward No.20, Municipal Committee, Bhalwal for the election scheduled for 20-5-1998. Respondent No.8 secured 162 votes against 152 votes polled in favour of. the petitioner. The grievance of the petitioner is that on 14-5-1998 respondent No.1 allowed the transfer of 100 votes from Ward No.20 to Ward No.19. This order was given effect by Returning Officer vide order, dated 19-5-1998 passed on the voters' list. It is maintained that respondents Nos. l and 2 did not exercise jurisdiction in accordance with law. The respondent No.2 proceeded in most mechanical manner and without application of mind while detaching the votes. The petitioner in this background prayed through this Constitutional petition that the order of respondent No.1 be declared illegal without lawful authority fraudulent, against the rights of the petitioner and elecrion of respondent No.8 be declared invalid. The petition came up for limine bearing on 8-6-1998 when after noting the contentions of the learned counsel for the petitioner, respondent No.8 was restrained from acting as Member. Respondent No.8 moved an application for vacation of the stay order. We issued notice for 15-10-1998 in this petition and decided to hear the main petition.

3. It is argued on behalf of the petitioner that respondent No.1 simply sent the application of one Muhammad Aslam to respondent No.2 for decision in accordance with law. Respondent No.2 without going through this order passed an order on the same whereby detached the votes as requested in the application. It is added that the constituency was called to elect its representative on 30-3-1998, therefore, the voters' list could not be changed in view of the strict provisions of section 20 of the Electoral Rolls Act, 1974.

4. On the other hand learned counsel for respondent No.8 argued that respondent No.2 changed the votes without any objection from any side. It is added that those votes were in fact included in Ward No.19 and were wrongly shown in Ward No.20. It is argued that his client has been duly elected by the voters and there is no justification to restrain to act as Member of Municipal Committee.

5. We have given our anxious consideration to the arguments and gone through the record. One Muhammad Aslam moved application before respondent No.1 for adjustment of votes from Ward No.20 to Ward No.19. Then respondent No.1 vide order, dated 14-5-1998 without hearing the candidate proceeded to direct respondent No.2 to personally verify the petitioner's grievance and adjust the persons/votes. The respondent in turn without going through the order and particularly the operative portion took it as an order allowing the adjustment. This is clear from the fact that he did not make the verification and pass any order simply recorded on the list itself if that adjustment has been done on the direction of respondent No.1 . There was no such direction, therefore, the adjustment was illegal.

6. Now coming to the legal point that after electoral units has been called to elect its representative there could be no modification or change in the voters I list. The learned counsel for respondent No.8 tried to meet this legal objection with the argument that the voters have already been registered and it was only adjustment. The provision has a definite rationale. This was not the voters' list for Ward No.19, therefore, they became voters for Ward No.19 on 19-5-1998 when respondent No.2 transferred the voters list to that ward. They were not voters of this Ward earlier, therefore, the case is fully covered by section 20 of the Election Rolls Act, 1974. The election process is comprehensive and detailed spread over months. It starts with registration of votes, delimitation and objection to the same. It is, therefore, that schedule is announced. The purpose of section 20 of Order 1979 seem to be to attach finality to the delimitation and voters list on the eve of declaration of the schedule of election. In the present case, the impugned order of respondent No.2, even upset the delimitation as he changed the area by taking part of voters' list from Ward No.20 and adding to Ward No.19.

7. The upshot of the above discussion is that the election for Ward No.20, Municipal Committee, Bahawal is declared illegal and set aside. Respondent No.1 is directed to forthwith announce the election schedule for this ward. H.B.T./M-1019/L Order accordingly