P L D 1966 (W (PLP)

4. From these provisions, the learned counsel for the appellant contended that this was a self‑contained machinery for the preparation of the Electoral Roll and if the age of a person in any particular Electoral Roll was shown to be above 25 years then that entry was final and binding. He submitted that if a person was aggrieved from any entry in the Electoral Roll, he should have resorted to the detailed procedure laid in this behalf. He submitted that as au Electoral Roll published under section 8(4) is called final Electoral Roll, and decisions of Registration officer, after hearing objections, are also final decisions under rule 13(7) and as decisions under rules 14, 15, 17 and 18 are final under rule 19, and as according to third proviso to subsection (3) of section 23, a Returning Officer cannot enquire into the correctness or validity of any entry in the Electoral Roll, therefore, the entries in the Electoral Roll are final, and an Election Tribunal has no jurisdiction to go behind them. He maintained that under rule 8, the Form known as Form III (i.e., Electoral Roll) is required to contain age of the persons to be enrolled on the Electoral Roll, this entry is, therefore, final. In this behalf, he relied upon Ahsan Ali v. Z. A. Chowdhury, Election Tribunal, Additional Deputy Commissioner, Jessore and others (P L D 1966 Dacca 41). This authority, no doubt, supports the contention of the learned counsel for the appellant, but with great respect, I am not inclined to follow it, and my reasons for this are as follows: (a) That if the contention of the learned counsel for the appellant is to be accepted, then it will tantamount to violate the provisions of Article 171 of the Constitution. This Article reads as follows: "171. (1) Subject to clause (2) of this Article provision may be made by law‑ (a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commissioner and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election for referendum shall not be called in question except in accordance with such a law. (2) When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever. (3) The validity of anything done by the Commissioner under Article 160, 161 or 162 shall not be called in question in any manner before or by any Court or authority whatsoever." A perusal of this Article will show that with regard to "election disputes", the ultimate forum is to be the Election Tribunal, and is the decision of the Tribunal which is to be given finality and no the decision if I may use the terminology of administrative officers concerned with the preparation and the conduct of the elections. If from the various provisions of the Electoral College Act, it is to be concluded that finality attaches to entries in the Electoral Roll, then this will mean that the mandate given by the, Constitution, so as to make the Election Tribunal as the final arbiter will be defeated. The Dacca decision, I may say, with utmost respect does not take notice of this Article of the Constitution. (b) Their Lordships of the Supreme Court in Imtiaz Ali v. Ghulam Muhammad Butt and another P L D 1958 S C 228, held that entries in the electoral rolls are final except with regard to personal disqualification of a candidate. The actual passage which occurs at page 241 is as follows: "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. A reference may here be made to the case Stove v. Joliffe 50 M & H 135, where it was held that the register of voters is conclusive on a Returning Officer as well as on any tribunal which is to enquire into the election unless there be some personal disqualification." Following the above dictum respectfully. I am of the opinion that as the objection with regard to age goes to the root of the B personal disqualification of a candidate, the Election Tribunal can enquire into it and go behind the entries in the Electoral Roll. (c) The jurisdiction of the Election Tribunal under the Electoral College Act has been deliberately kept very wide and unrestricted so as to enable it to go into all types of "election disputes". Dispute of age in the present case, being essentially an "election dispute", it will not be reasonable to hold that it has been excluded from the jurisdiction of the Election Tribunal, whereas all other sorts of election disputes are within its domain. There is no reason to place this type of c objection or dispute on any higher footing than other types of disputes or objections. The point about wideness of the jurisdiction of the Election Tribunal came up for discussion in two reported cases in Dost Muhammad v. Returning Officer and another P L D 1965 Lah. 560 and Karam Dad v. Muhammad Yaqub and others P L D 1965 Lah.

622. In the former case which involved personal disqualification of a candidate it was held as follows: "

14. It is true that the grounds on which the reliefs enumerated in rule 35(6) of the Electoral Rules, 1964, may be obtained are not set out anywhere, but it does not follow that the disputes of the kind with which we are concerned fall outside the scope of an election petition to be tried by the Tribunal under section 60 of the Act. On the contrary, the scope is very much wider. Under section 58(2) any candidate may make an election petition challenging the election at which he was a candidate and under section 60 the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such order as it may think fit. There is, thus no particularization of the grounds which may be raised in a petition to challenge an election. One instance of those grounds will be found in the definition of Election Offences set out in Chapter IX of the Electoral College Act, though it is not said so in the Act or the Rules and there may be very many other grounds which, if established, will call for setting aside of an election. The contention that the Tribunal established under the Electoral College Act are not competent to decide the dispute raised in these matters has, thus, no force." In the second case, the learned Judges observed as follows: "

8. The combined effect of the provisions of law mentioned above seems to us to be to give to the Election Tribunal wide power to declare the election of the returned candidate to be void if there has been a contravention of any provision of the Act or the rules, or there has been any material omission on the part of any person to comply with the relevant provisions of law in the conduct of elections. Accordingly it is clear that if an invalid nomination paper has been accepted by a Returning Officer, the Election Tribunal would have the power to declare void the election of such a candidate on the ground that there has been a contravention of the provisions of the Act. The wide power conferred on the Election Tribunal cannot be abridged or limited merely by reference to the fact that in section 23 of the Act no appeal is provided during the course of the elections, against an order accepting an invalid nomination paper. In view of the unambiguous language employed in subsection (2) of section 60 and sub‑rule (1‑A) of rule 36, any limitation on the powers of an Election Tribunal in this behalf will have to be expressed in clear terms in the relevant statute and cannot be left to be inferred only indirectly from certain omissions in another part of the Act, dealing with an antecedent stage in the entire process of elections to the Electoral College. We are, therefore, of the view that the Election Tribunal was competent to examine the validity of the nomination paper of the petitioner." Respectfully following the above view, I hold that the jurisdiction of the Election Tribunal is very wide and it can definitely go into the question of disqualification of a candidate on the ground of age, notwithstanding the entry of age in the Electoral Roll.

5. It was next contended by the learned counsel for the appellant that the date on which a candidate should be of twenty‑five years of age is the date of the election. Relying upon Irfan Akhtar Shah v. Election Tribunal, District Shahpur (), he submitted that the date of election is the date of the publication of the gazette notification wherein the name of the elected candidate is finally notified. It was brought to the notice of the learned counsel that the said authority has been overruled by a Full Bench of this Court in Muhammad Nazeer Hakim v. Bukhtiar Said Muhammad and another (P L D 1962 Lah. 421), and that on this point there was a further Division Bench ruling of this Court, namely, Manzoor Aleem Qureshi v. Zahoor Hussain and others (P h D 1965 Lah. 262), wherein it has been held that under Electoral College Act, a person should be twenty‑five years of age on the date of his nomination to the electoral unit. In the face of these two authorities, the learned counsel for the appellant could not press this point any further.

6. The next point urged by the learned counsel was that even though the appellant may be considered to have taken a contract for repairing or construction of road, within the jurisdiction of a town committee or a Local Council, that would not be all disqualification within the meaning of section 53(1)(f) of the Electoral College Act, 1964. He submitted that roads were maintained by the Public Works Department and, therefore, taking contract with regard to roads was not a disqualification. This point has no force and on this there is already a decision of this Court in Karam Dad Khan v. Muhammad Yaqub and others. The contention of the learned counsel on this subject are the same which he himself raised in the aforesaid case but were not accepted by this Court.

7. Lastly, it was contended that even if the nomination of the appellant be considered to be invalid the respondent could not have been declared as elected by the Election Tribunal. There is no force in this submission. There were only two candidates in the field. The nomination of the appellant having been found to be invalid, the only other candidate left would be respondent No.

1. The Election Tribunal was, therefore, justified in declaring respondent No. 1 as the only duly elected candidate. It is to be pointed out that we had announced the order in Court and had said that the reasons for the order will be dictated later on. While this judgment was almost complete, the learned counsel for the appellant sent to me an authority reported in Keshav Lakshman Borkar v. Dr. Deorao Lakshman Anande (A I R 1960 S C 131), for the purpose of showing that the votes cast in favour of the appellant could not be considered to be thrown away votes and, G since the appellant had the majority of votes, therefore, the respondent could not have been declared to be elected. Suffice it to say that that decision turned upon the peculiar provisions of section 101 of the Representation of People Act, 1951, and has no relevancy to the Electoral College Act of 1964, where there is no provision of that type.

8. For the foregoing reasons, there is no force in this appeal which is hereby dismissed in limine. K. B. A. Appeal dismissed in limine.