P L D 1984 Lahore 125 (PLP)

A. Karim Malik for Respondent No.

4. Date of hearing : 15th November, 1983. GHAZANFAR ALI GONDAL, J.--‑This judgment will dispose of two writ petitions. i. e. Writ Petition No. 416 of 1983 (R. W. P.) filed by Emmanual Masih and‑Writ Petition No. 417 of 1983 (R. W. P.) filed by Tariq Francis.

2. The facts of the case are that Emmanual Masih was a candidate for a non‑Muslim seat in Municipal Committee Chakwal, Tehsil Gujar Khatt, District Jhelum. He filed his nomination paper for the election to the said seat which was to be held on 5‑10‑1983. Tariq Francis also filed his nomination paper for the said non‑Muslim seat from the same constituency. At the time of scrutiny on 6‑9‑1983, Tariq Francis filed an application before Returning Officer raising an objection that Emmanual Masih was not of the age of 25 years and was not qualified to contest the election. The application was dismissed and objection was rejected by the Returning Officer by his order of the same date and nomination paper of Emmanual Masih was accepted on the ground that Emmanual Masih was registered as a voter during the year 1979 and his age as described in the electoral roll as on 1‑1‑1979 was shown to be 21 years and his date of birth as recorded on the identity card was 1957 and that the (returning officer) could not enquire into the validity or correctness of any entry in the electoral roll under rule 15(3) (iii) of the Punjab Local Councils (Election) Rules, 1979, and as such his age on the last day of filing nomination paper was above 25 years and relevant entry of Emmanual Masih in the birth register maintained by Municipal Com mittee Chakwal, produced before him showing his date of birth as 20‑12‑1958, was doubtful.

3. Aggrieved by the said order of the Returning Officer dated 6‑9‑1983, Tariq Francis filed an application under section 17(1) of Punjab Local Government Ordinance, 1979 on 10‑.9‑1983. The Punjab Local Councils Election Authority by its order dated 24‑9‑1983, accepted this petition, set aside the order dated 6‑9‑1983 of the Returning Officer and rejected the nomination paper of Emmanual Masih and directed the deletion of his name from the list of contesting candidates. This order was made on the basis of the entry in the original birth register of Municipal Committee Chakwal which was produced before the Election Authority showing the .date of birth of Emmanual Masih as 20th of December 1958, as reported to it (the said Municipal Committee) on 3‑1‑1959 ‑by Rakha Masih, the very father of Emmanual Masih. The Election Authority held that the birth register did not contain anything which cast any doubt as to the correctness of the said entry made therein and taking into account 20‑12‑1958 the date of birth of Emmanual Masih as recorded in the said register, Emmanual Masih was less than the age of 25 years on the last day for filing nomination paper viz. 1‑9‑1983 and that the Returning Officer was not right in relying upon the date of birth of Emmanual Masih as given in the identity card for determining his age for the purpose of scrutiny of nomination paper which only gave the year of the birth and not the date and had erred in law and in violation of section 20 of the Ordinance in accepting the nomination paper of Emmanual Masih on its basis.

4. Emmanual Masih has come up in Writ Petition (416/83) to challenge the said order of the Election Authority, inter alia, on the ground that the said Authority had no jurisdiction under section 17(1) of the said Ordinance to look into the qualification for eligibility to contest the election on the ground that this matter is within the exclusive jurisdiction of the Election Tribunal. As against that, Tariq Francis has filed Writ Petition No. 417/83, on the ground that assuming that the order of the Election Authority was without jurisdiction, the order of the Returning Officer accepting the nomina tion paper of Emmanual Masih was illegal, on the reasons recorded by the Punjab Local Councils Election Authority in its order dated .24‑9‑1983.

5. We have heard the learned counsel for the parties in both the writ petitions and have also seen the record of the case.

6. Learned counsel for Emmanual Masih has drawn our attention to section 20 of the said Ordinance, which lays down that a person shall be qualified to be elected as a member of an electoral unit of the local council if he has attained the age of 25 years on the last day fixed for the filing of nomination paper and to rule 13 of Punjab Local Councils (Election petitions) Rules, 1979, which lays down that an Election Tribunal shall declare the election of the returned candidate to be void if he is satisfied that the return ed candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Chairman or Vice‑Chairman and has sub mitted that the two provisions read together make the question of qualification of a candidate as regards his age fall within the exclusive jurisdiction of the Election Tribunal and section 17(2) of the Ordinance (which lays down that in spite of subsection (1) of section 17 the Election Authority will have no power to enquire into any matter or pass an order in respect of anything relating to election which shall be called in question before the Election Tribunal by an election petition under this Ordinance) excluded the disputes as regards age; qualification from the jurisdiction of Punjab Local Council Election Authority and as such the impugned order of the said Election Authority was of no legal effect as having been passed without lawful authority.

7. We have considered the question raised by the learned counsel for the petitioner but the said question appears to have already been decided by the highest Court of the realm conclusively and finally. Their Lordships of the Supreme Court in case of The Punjab Local Councils Election Authority Lahore v. Malik Muhammad Aslam and another (1982 5 C, M R 1086) held that it is only post election disputes which had been excluded from the jurisdiction of the Election Authority under section 17(2) and no other. The election in the present case had been held on 5‑10‑1983. The said Election Authority had decided the matter on 24‑9‑1983. Obviously, therefore, the Election Authority had the jurisdiction to decide the question whether the petitioner had the necessary age qualification on the last date fixed for filing the nomination papers to make him eligible to contest the election to the membership of the non. Muslim seat. The point, therefore, has no force and the same is repelled.

8. Faced with this situation, learned counsel for the petitioner has next contended that under proviso (iii) to sub‑rule (3) of rule 15 of the Punjab Local Councils (Election). Rules, 1979, the Returning Officer could not, while scrutinizing the nomination papers, enquire into the correctness or validity of any entry in the electoral roll and petitioner's age as recorded in the electoral roll on 1st January, 1979 being 21 years, he was clearly more than 25 years of age on the last date on which the nomination papers were filed and since Returning Officer had not committed any legal error and had acted in accordance with the said provision and Punjab Local Councils Election Authority which under subsection (1) of section 17 of the said Ordinance had expressly been shown to be a reviewing authority should not have interfered in the matter. On these premises, it is submitted that the said Election Authority had acted illegally in exercise of its authority in relying on the entry in Municipal Birth Register and in holding on its basis that petitioner was less than 25 years of age on the said date.

9. We have given our anxious thought to the point raised. The said point calls for interpretation and construction of proviso (iii) to sub‑rule (3) of rule 15 of the Punjab Local Councils (Election) Rules, 1979. However, before we embark upon that venture, it is necessary to know what exactly is the scope of an electoral roll prepared under Electoral Rolls Act and what is exact legal effect of entries made in the said electoral rolls prepared under the said Act and the allied question as to what is the legal effect of the entry of age as recorded in the electoral roll vis‑a‑vis the qualification of 25 years of age prescribed for candidature for membership of local councils as laid down in section 20(b) of the Punjab Local Government Ordinance, 1979,We will, therefore, first proceed to look into the latter two questions before we proceed to find the legislative intent behind the said proviso.

10. Various provisions of the Electoral Rolls Act, 1974, and the rules framed thereunder show that an elaborate machinery has been provided under the Act and the Rules for preparation and finalization of the electoral rolls. Firstly, preliminary electoral roll is prepared and is published along with a notice inviting claims and objections and applications for corrections. On this, claims for inclusion of name in the electoral roll and objections or applications for correction of entries in the preliminary electoral roll are filed by interested persons on the prescribed form within a prescribed period of limitation. Thereafter necessary enquiries are made and decisions are arrived at by the competent officers. It is thereafter that additions, deletion, modifications or corrections as a result of said decisions are made and the final electoral roll is published in the prescribed manner. Further, in order to cater for the changes which take place due to the lapse of time, there is a provision in the said Act for annual revision of the electoral rolls. Not only that, a further provision has been made in the said Act for enrolment of new voters at times other than the annual revision and the preparation of the rolls. Rules have been framed to give effect to the said provisions of law. However, on a close scrutiny of all the provisions of the Act and the Rule made thereunder, it is clear that the object of entire exercise undertaken under these provisions is to name and particularize the persons who are found to be qualified to vote in an election as valid voters. The electoral roll of an electoral unit thus serves the purpose of showing that persons named in it are entitled to vote in the election of that unit and the right of any such person to vote cannot be questioned, as, the entry in the electoral roll has been made after elaborate enquiry and taking into consideration the objections and the claim for the said purpose. Entries in respect of age, profession etc. in the electoral roll are meant only as an aid for affording some identification for ascertainment of the person who has been registered therein as a voter cannot in the light of provisions of the Electoral Rolls Act, 1974, be said to be final and conclusive as regards their correctness, except insofar as they touch the right of a person registered therein to vote. As for entry of age, it is true, that in the pro forma prescribed under the Rules for lodging the claim for inclusion of a name in the electoral roll, there is a column provided for the age, but it must be ‑noted in this connection that at the time of preliminary preparation of the electoral roll under section 6(2) (b) of the Electoral Rolls Act, 1974, a person can be enrolled as a voter of an electoral area if he is not less than 18 years of age on the first day of January in the year in which the preparation or revision of the electoral rolls commences under the Act. There is no duty cast on the Registration Officer in this provision to see as to what is the exact age of the person who has then registered. Furthermore, neither under any provision of the Electoral Roll Act nor under the Rules made thereunder it is incumbent upon the Registra tion Officer to record the age of a voter with exactitute. Although in the prescribed pro forma, the applicant who wishes to be enrolled is to give his actual age, and normally the registration officer is also to enter his correct age, but the said entry cannot be said to be final as the ascertainment of the actual age of the voter is not a legal necessity for the purpose of preparation of the rolls. 1t is enough if as laid down in section 6(2) (b) of the Electoral Rolis Act, 1974, it is found that the person concerned is not less than 18 years of age on the first day of January in the year in which the Preparation or revision of the electoral rolls commences under the Act. The entry of certain number of years as age of a person registered as a voter in the electoral roll cannot, therefore, be considered to be final and incontrovertible.

11. So far as the candidature for election to the local councils is concerned, section 20(b) of the Punjab Local Government Ordinance, 1979, says that a person shall be qualified to be elected as a member of an electoral] unit of a local council if he has attained the age of 25 years on the last date fixed for the filing of nomination paper and his name for the time being appears on the electoral roll of that unit. It is clear that the said sub section lays down two qualifications for a candidate, one is that he is to be a voter of the unit from which he seeks to contest the election and second is that he is not less than 25 years of age. The entries in the electoral roll are final so far as the first qualification is concerned, as the roll is prepared essentially for the purpose of showing as to who are the persons entitled t vote and the entries in the same are final and cannot be questioned so far a. that right goes. In regard to the second qualification, though as earlier stated, the actual age of a voter is to be recorded in the said form, this entry cannot be said to be final. The requirement of minimum age of 25 years is a statutory provision laid down by section 21 of the Ordinance. It is an essential qualification for a candidate. The qualification of age of 25 years as laid down in section 20 (b) of the said Ordinance has got to be satisfied independently of the entry appearing in the electoral roll. The said entry does not, therefore, bar a returning officer from enquiring into, or from entertaining evidence in regard to, the correct age of a candidate.

12. After having seen the scope of entries made in the electoral roll including one in respect of the age of a voter via‑a‑via section 20(b) of the said Ordinance, we will now proceed to construe the meaning of proviso (iii) of sub‑rule (3) of rule 15 of the Punjab Local Councils (Election Rules, 1979, which lays down that the Returning Officer shall not enquire into the correctness and validity of any entry in the electoral roll. In our opinion, this embargo placed on the power of the Returning Officer by this provision has to be construed in the light of aim, object and purpose for which the Electoral Rolls Act, 1974, was promulgated. The finality ostensibly appearing to have been attached to entries in the electoral roll under proviso (iii) to sub rule (3) of rule 15 of Punjab Local Councils (Election) Rules, 1979, cannot be extended beyond the object and purpose for which the electoral roll is prepared, namely, to ascertain whether the person has a right to vote. Therefore, the only meaning which can be assigned to the said proviso is that it places an embargo on the power of the Returning Officer to entertain an objection to the effect and reject nomination paper of a candidate on the ground that candidate was not a valid voter if he stood already registered as a voter in the said electoral roll. It only tells the Returning Officer that the stage for entertaining an objection that candidate is not qualified to be a voter has already gone by with preparation of the final electoral roll and prohibits him from allowing any such objection on any account and enjoin upon him to accept the factum of candidate being a voter as recorded in the said electoral unit as a proved and inviolable fact. This is the only effect of the said proviso and nothing more. In consequence we think that merely because of the said proviso, the Returning Officer is not to consider the entry of age appearing in the electoral roll as final insofar as the question of candidature for membership of a local council is concerned and for the purpose of ascertainment of the ‑ same, he can take independent evidence, irrespective of the entry in the electoral roll. We are fortified in this view of ours by a number of judicial pronouncements based upon provisions of the statutes then in force which were part materia with the Electoral Rolls Act, 1974 and section 20 of the Punjab Local Government Ordinance, 1979.The said decisions are: Diwan Mahboob Ahmad v. The Controlling Authority (Collector, Bahawalpur) and another (P L D 1969 S C 5), Ahmad v. Mir Muhammad Khan and others (P L D 1966 Lah.927), Muhammad Tufail v. Muhammad Salim and others (P L D 1967 Kar. 104) and Seraj‑ul‑Islam Khan v. Ahsan All Mandal and others (P L D 1969 S C 5).

13. In consequence of the above discussion, we hold that the Returning Officer had misconstrued the said proviso and had acted illegally in exercise of his jurisdiction in holding that in matter ‑of age of Emmanual Masih for the purpose of his candidature for membership of Municipal Committee Chakwal, he could not go behind the relevant entry in the electoral roll. We further hold that the Punjab Local Councils Election Authority bad followed the correct view of law so far as the said proviso was concerned and had rightly proceeded to take evidence aliunde on the question of Emmanual Masih's age, irrespective of the entry appearing in the electoral roll and had rightly held on the basis of entry of birth of Emmanual Masih in the original birth register maintained by the Municipal Committee, Chakwal that he was not of the age of 25 years on 1-1983, i.e. the last day of filing nomination paper and was, therefore, not qualified to contest the election for membership of Municipal Committee, Chakwal. The second point has also, therefore, no merit in it and the same is also rejected.

14. For the foregoing reasons we have no hesitation in holding that Writ Petition No. 416/83 filed by Emmanual Masib has no substance in it. We accordingly dismiss the same with costs.

15. Since in Writ Petition No. 416‑83, the order of Election Authority has been upheld, Writ Petition No. 417‑83, filed by Tariq Francis has been rendered wholly inconsequential. It is also, therefore, dismissed as having become infructuous. There will however be no order as to costs in this Writ Petition. M.Z. M. Order accordingly.