P L D 1966 (W (PLP)

Petitioner secured: 280 votes; Respondent No. 2 secured: 216 votes; and Respondent No. 3 secured: 2 votes only. The petitioner having obtained the highest number of votes was declared duly elected.

2. Respondent No. 2 challenged the election of the petitioner by an election petition under section 58 of the Electoral College Act. Several objections were taken to the petitioner's successful election, but the only one which was pressed before the Election Tribunal and on which it has given its finding is that the petitioner was below the age of twenty‑five years at the time of the filing of his domination papers. He was, therefore, disqualified constitutionally to contest the election. The learned Member of the Election Tribunal (respondent No. 3) has accepted the election petition holding that the respondent (petitioner) was less than 25 years of age on the 15th of October 1964, when he filed his nomination papers and he was thus disqualified to be a candidate for the election. He has also granted a declaration to the respondent Gulzar Muhammad as the duly elected candidate, as Gulzar Muhammad had obtained the next highest number of votes. In this writ petition, the petitioner challenges the order of the Election Tribunal as void, illegal and without lawful authority.

3. It may be stated here that on the question of age, the Election Tribunal has made reference in the order to the documentary evidence which had been produced by the parties before the Returning Authority. It is mentioned in paragraph 2 of the order of the Election Tribunal that respondent (i.e., Abdur Rashid petitioner), had filed an affidavit and a medical certificate before the Returning Officer to prove that his age was twenty-eight. It is remarked that there was no need for him to file these documents and it only showed that he (Abdur Rashid) himself was not sure about the correctness of the entries in the Election Roll about his age. This seems to us to be an unfair comment on the documentary evidence produced by the petitioner and an unwarranted presumption that the petitioner was afflicted with an uncertainty about his own age. The respondent Gulzar Muhammad had filed a Matriculation Certificate pertaining to the petitioner in which the date of his birth is recorded as the 1st of December 1939. He had also produced a copy of the entry in the birth register of the Jullundur City, in which the petitioner's date of birth is given as the 2nd of June 1941. This birth entry, however, was discarded being inadmissible under section 78 of the Evidence Act, as it had been issued by a Foreign Government. The learned Member of the Election Tribunal has remarked that he was thus faced with a comparison of Matriculation Certificate on one side and the medical certificate on the other and he preferred the former to the latter, because the medical certificate, according to him, was not a sure guide for the determination of the age. In the present writ petition to the High Court, it was urged that the petitioner had not been allowed to produce any evidence by the Election Tribunal to rebut the evidence of Matriculation Certificate produced by the opposite‑party and that he had not produced any medical certificate such as is referred to in the order of the Election Tribunal. The medical certificate was not available on the record of the case and a report was called from the Returning Authority as to its existence. The Returning Authority submitted that it was not possible for it to say anything about it: The matter was then referred to the Election Tribunal. In ‑its report, dated the 12th of August 1965, it is submitted that it was difficult for the Election Tribunal to recall whether any medical certificate, referred to in his order; was seen by him. It was, however, possible that such a certificate was produced by some other party in some other case fixed for the same date and a reference was inadvertently made in this case.

4. It has been urged before us that the Election Tribunal has contravened the law in going behind the entry in the Electoral Roll pertaining to the age of the petitioner which had become final and unquestionable for purposes of the election, including his right to contest the election. It was submitted that under rule 8 of the Electoral College Act, 1964, the Electoral Roll for an Electoral Unit has to be in Form III, which contains a particular column for recording the age of the elector, which is thus an integral part of the Electoral Roll prepared under section 8 of the Electoral College Act, 1964, which contains a complete procedure for the preparation, modification and revision of the Electoral Roll and that, under subsection (6), of the same section once that Electoral Roll is published, after amendments and corrections and after the disposal of the objections to the entries by the Registration Officer and the incorporation of the altera tions and modifications as ordered by him, it comes into force immediately and shall remain in force until revised under section

12. Section 12 provides that every Electoral Roll shall be revised annually in the prescribed manner with reference to the qualifying date but the Commissioner may, at any time, require the revision of the Electoral Roll of any Electoral Unit, if he considers such revision to be necessary. Section 13 of the Act provides that an Electoral Roll shall continue to have operation even though it is not revised under section 12 and that the Electoral Roll shall not be invalid by reason of any mis -description of a. person enrolled or registered thereon or of omission of the name of any person entitled to be so enrolled or registered or of the inclusion of the name of any person not so entitled. Rules 10, 11 and 13 of the Electoral College Rules read together provide that any person, who is himself enrolled in the Electoral Roll, may, within seven days of the publication of the Electoral Roll, make an objection to any entry therein relating to any other person enrolled therein. If the objection is rejected, the decision, of the Registration Officer is final. If the petition is accepted, rule 14 provides an appeal to the Revising Authority by the person affected. The decision of the Revising Authority is made final under rule 14 (4). It was stressed by the learned counsel for the petitioner that the Electoral College Act and the Rules, mentioned above, lay down a comprehensive and complete system of the making of the revision of entries in the Electoral Roll including the entry regarding the age of an elector and that they cannot be subjected to any challenge after the publication of the roll in any other forum. This argument was recently considered by a Division Bench of this Court in Writ Petition No. 584 of 1965, and' it was held (the judgment is unreported) that the entry regarding the age of the elector in the Electoral A Roll may become final to qualify him as a voter, for which he has to be not less than twenty‑one years of age.. But it is not so on the point of his qualification, to be elected as an Elector of the Electoral Unit for the Electoral College, for which constitutionally under Article 158 of the Constitution, he has to be not less than twenty‑five years of age. We are in respectful agreement with the view of the Division Bench in the case referred to above. Since the entry in the Electoral Roll, regarding the age of the petitioner, could be challenged in the election petition and since the question of the age of the, petitioner was in issue in the election petition, the Election Tribunal had to come to its own finding on its own appraisement of the data before it. It has accepted the Matriculation Certificate of the petitioner as laying down the correct age, according to which, he was less than twenty‑five years of age on the day on which he filed the nomination paper. The contention of the learned counsel is not without force that the decision of the Election Tribunal is not e well based depending as it does entirely on the Matriculation Certificate which cannot be invested with complete sanctity. The decision of the Election Tribunal rriay be erroneous and we may not be in a position to subscribe to it, but unfortunately, we cannot interfere with it just on that score in writ jurisdiction. In view of the verdict of their Lordships of the Supreme Court recently given in the case of Mian Jamal Shah v. Nasrullah Khan Khattack (P L D 1966 S C 1) such a decision even though considered erroneous, cannot be disturbed in writ jurisdiction unless it is shown that it has been made without jurisdiction or in excess of jurisdiction or there has been a failure to exercise. jurisdiction or is tainted with mala fides.

5. We find, however, that the second part of the Tribunal's order, declaring the respondent Gulzar Muhammad as the successful candidate, does suffer from a fatal defect, as the declaration has been made clearly in excess of jurisdiction Having held that the petitioner was unqualified to contest the election, being of less than the constitutionally prescribed age, the plain result which followed was that all the 280 voters who had voted for him had cast their votes in vain for no fault of their own, as they had voted for a person whom they considered c to be a duly nominated candidate. The learned counsel for respondent No. 2 contended that those votes be: treated as destroyed votes with no effect on the course of the election. This argument would amount to disenfranchising those 280 people who had voted for the petitioner as if those people are not concerned with the election. In the present case, we feel that as a disqualified person was allowed to contest the election and he had secured the majority of votes, the result of the entire election was materially affected and the entire election was, therefore, rendered void. The respondent, in spite of securing the second highest number of votes. could not, under the circumstances, be declared as the duly elected candidate.

6. In this view of the matter, we are constrained to accept this petition to the extent that the order of the Election Tribunal declaring respondent No. 2 as the duly elected candidate, is void, and of no legal effect which is hereby quashed. In our opinion, the entire election in this case was rendered void and, as such, a fresh election will have to be arranged for in this unit. We leave the parties to bear their own costs. K. B. A. Petition partly accepted.