1992 PLP 212 (MLD)

‑‑‑‑S. 7(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Transfer of vote from one electoral area to another electoral area‑‑‑Application for transfer of vote rejected by Registration Officer‑‑‑Petitioner being owner of property in area where he wanted to transfer his vote was entitled to the relief claimed‑‑ Registration Officer was directed to dispose of petitioner's application in accordance with law. Hasnat Ahmad Khan for Petitioner. Maqbool Elahi Malik, Advocate‑General (Punjab) for Respondent, Date of hearing: 4th November, 1991 The petitioner who was enrolled as a voter in village Kalair Mamand, Tehsil Depalpur, District Okara, applied to the Registration Officer for the transfer of his vote to village Haji Chand, Tehsil Depalpur, District Okara on the ground that he was owner of immovable property in that ‑village and further that he has shifted his residence there. This application was, however, rejected by the Registration Officer observing that as the petitioner was not an ordinary resident of village Haji Chand and the immovable property had been purchased by him on 14th October, 1991, he was not entitled to be enrolled as a voter in that village. This order of the Assistant Commissioner/ Registration Officer dated 20th October, 1990 has been challenged in this petition.

2. The learned counsel for the petitioner has referred to section 7 of the Electoral Rolls Act, 1974 to contend that even if a person does not reside in a ward but he possesses or owns immovable property there; he is entitled to be enrolled in that particular area. Reliance has been placed on Ch. Abdul Razzaq v. General Assistant (Revenue) with powers of Registration Officer, Okara (1988 SCMR 291). On behalf of the respondents, it is argued that before a person can be held entitled to be enrolled in a particular area, he must ordinarily reside there.

3. The case turns upon the interpretation of section 7(1) of the Electoral Rolls Act, 1974 which reads as under: ‑‑ "(1) Save as hereinafter provided a person shall be deemed to be resident in an electoral area if he ordinarily resides, or owns or is in possession of a dwelling house or other immovable property, in that area:" It will be seen under this provision a person is entitled to be enrolled as a voter in any electoral area in which he ordinarily resides or owns or is in possession of a dwelling house or other immovable property. It is quite obivous that the word "or" has been used in subsection (1) in disjunctive sense. Although it is correct that the word "or" can some times be interpreted as "and" depending upon the context in which it has been used but the general rule as stated by the Crawford in Statutory Constructions (1940 Edition) at page 322 is that ordinarily word "or" should be construed in disjunctive sense unless the complusion of context requires otherwise.

4. It is to be seen that section 7 creates by the deeming clause a fiction whereby a person though not ordinarily residing in an electoral area is to be considered as a resident of that area if he owns or in possession of a dwelling house or other immovable property in that area. The true import of the deeming clause was spelt out by the Supreme Court in Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397) wherein the following statement of law appears at page 433:‑‑ "When a statute contemplates that a state of affairs should be deemed to exist it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause i. to be found in the observations of Lord Asquith in East End Dwelling Company Ltd. v. Finsbury Borough Council (1952 AC 109) namely:‑‑ "Where, the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs'." This observation has been referred to with approval in a large number of cases decided by the Courts in this sub‑continent, as mentioned by the learned Judge in the High Court. See Commissioner of Income‑tax, Bombay Presidency v. Bombay Trust Corporation Ltd. (AIR 1930 PC 64), Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore (PLD 1965 Lahore 445), Begum Syed v. Mst. Afzal Jahan Begum (PLD 1965 Lahore 967), Begum B.H, Syed v. Mst. Afzal Jehan Begum and another (PLD 1970 Supreme Court 29) and Abdul Hakim Khan v. Mrs. Doreen Barkat Ram (PLD 1973 Lahore 566). 5. 1t follows from the above discussion that a person has to be considered as a resident of an electoral area not only if he actually resides therein but also if he either owns or is in possession of a dwelling house or is owner of other property in that area notwithstanding that he may actually be residing some where else. This view is further supported by subsection (2) of section 7 of the Electoral Rolls Act, 1974 which provides that in a case a person is entitled to be enrolled as a voter in more than one electoral area he can have himself registered as voter in any one of such areas for which he opts. Subsections (3), (4) and (5) of section 7 are also indicative of the legislative intent that actual residence in a particular area is not the only crieteria on which a person can claim to have himself registered as a voter in that area. In view of the above, this petition is accepted, the order of the Registration Officer is declared to be without lawful authority and of no legal effect and he is directed to decide the application of the petitioner afresh in accordance with law within 7 days from today. No order as to costs. AA./G‑17/L Petition accepted.