1984 PLP 3222 (CLC)

(a) Azad Jammu and Kashmir Local Government Ordinance, 1983‑ ‑‑S. 82‑Azad Jammu and Kashmir Local Government (Elections) Rules, 1983, rr. 56 (5). 60 (b) & 62 (1)‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44‑Election petition- Election of Local Council‑Requisite age of candidate‑Age entered in electoral roll‑Presumption of truth‑Whether available in case of candidate ‑Respondent challenging return of petitioner on ground of not having attained requisite age of 25 years‑‑Election Tribunal unseating petitioner on that ground ‑Petitioner challenging decision in writ petition contending that since presumption of truth was attached to entries in electoral roll including age, Election Tribunal was not competent to examine question of petitioner's age‑Held, right to be enrolled as voter different from right to be a candidate though latter included former‑Electoral Roll was prepared to determine entitlement to vote at an election‑Rights of persons whose names appeared on rolls to vote could not be questioned but rights of such persons to be candidate for election could be challenged- Election Tribunal, held, competent to look into objection of age of a returned candidate. P L D 1966 Dacca 41 ; P L D 1969 S C 5 ; P L D 1973 S C 236 ; 1982 S C M R 307 ; 1981 S C M R 549 ; P L D 1966 Pesh. 97 ; P L D 1972 Pesh. 27 ; 1983 P Cr. L J 55 and P L D 1956 Dacca 41 ref. P L D 1969 S C 5 and Shahidullah Kazi's case P L D 1969 Dacca 868 fol. (b) Azad Jammu and Kashmir Local Government Ordinance, 1983‑ ‑‑S. 82‑Azad Jammu and Kashmir Local Government (Election) Rules, 1983‑Rr. 56 (5), 60 (b) & 62 (1)‑Election Tribunal‑Jurisdic tion‑Election Tribunal having initial jurisdiction to decide, held, had jurisdiction to decide rightly or wrongly, may it be a question of fact or of law‑Such orders not to be interfered with in writ jurisdiction by Court merely because decision was wrong in its opinion.‑‑[Juris diction]. P L D 1973 S C 236 and Mir Alam Khan's case P L D 1989 S C (A J & K) 107 fol. (c) Azad Jammu and Kashmir Local Government Ordinance, 1983‑

‑S. 82‑Azad Jammu and Kashmir Local Government (Election) Rules, 1983,‑Rr. 56, 60 & 62‑Evidence Act (I of 1872), S. 115‑-Entry of age in electoral rolls‑Petitioner not candidate when rolls prepared‑Respondent not in a position to object to entry of age at time of registration of electoral rolls‑Respondent, held, not estopped to challenge age of petitioner subsequently before Election Tribunal. (d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑ ‑‑S. 44‑Questions of fact‑Appreciation by Tribunal‑Court, held, not required to interfere in such appreciation even it be wrong in its estimation. Date of institution: 15th March, 1984. The petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, calling in question the decision of Election Tribunal, Kotli, recorded in an election petition, on 7th March, 1984.

2. The parties were candidates in the election of District Council, Kotli. On return of the petitioner, respondent No. 1 challenged the vires of election results before the Election Tribunal for want of requisite quali fications to be a candidate in the election of District Council. It was alleged that the petitioner who succeeded in the election, not having attained the statutory age i. e. 25 years, on the day of his nomination and election, was unqualified to offer himself as a candidate. The objection was resisted by the petitioner. However, the Election Tribunal, on the basis of conclusive evidence, sustained the objection and unseated the petitioner.

3. The impugned order was assailed on the following grounds :‑ .: (i) that the presumption of truth was attached to the entries, including age, of electoral rolls, as such Election Tribunal was incompetent to examine the question of age of the petitioner ; (ii) that the Election Tribunal was not vested with jurisdiction to issue direction to Election Commissioner, Local Bodies, to comply with the impugned order ; (iii) that the petitioner successfully proved to be of the age of 25 years on the day of his nomination and election, as required by law, but the Election Tribunal fell in error to hold otherwise ; (iv) that the evidence of School Leaving Certificate carried less weight as compared to the‑evidence of Radiologist ; and (v) that respondent No. 1 was estopped to challenge the correctness of age of the petitioner, in the election petition on account of his failure to raise such an objection at the time of nomination and acceptance of nomination papers. The aforesaid objections were supported by reference to P L D 1966 Dacca 41, P L D 1969 S C 5, P L D 1973 S C 236, 1982 S C M R 307, 1981 S C M R 549, P L D 1966 Pesh. 97, P L D 1972 Pesh. 27 and 1981 PCr.LJ55.

4. The scheme of local bodies and its elections is contained under the Azad Jammu and Kashmir Local Government Ordinance and Azad Jammu and Kashmir Local Government Election Rules, 1983. Section 82 of the Ordinance empowers the Government to make rules to carry out the purposes of the Ordinance. It is undisputed that the requisite age of a candidate in election of the Local Councils, including the District Council, is 25 years, on the date of his nomination and election. Rule 56 deals with the election petitions. It provides that no election shall be called in question except by an election petition presented in accordance with these rules. Sub‑rule (5) lays down that in the election petition, the petitioner may claim any of the following declarations : ‑‑. (a) that the election of the returned candidate is void ; or (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or (c) that the election as a whole is void. These provisions correspond to the provisions of rule 62, sub‑rule (1), which enters that at the conclusion of the trial of an election, the Election Tribunal shall make an order :‑ (a) dismissing the election petition ; or (b) declaring the election of the returned candidate to be void ; or (c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected ; or (d) declaring election as whole to be void.

5. It is evident from the aforesaid provisions that the relief permissible to be sought in the election petition, was equally authorised to be given by the Election Tribunal under rule 62(1). The provisions of both the Rules are parallel and interrelated. Rules 60 contemplates that the Election tribunal shall declare an election to be void if it is satisfied that :‑ (a) the nomination of the returned candidate was invalid ; (b) on the nomination day the returned candidate was not qualified for or was disqualified from being elected for the ward ; (c) ... ... ... ... ... (d) ... ... ... ... ... (e) ... ... ... ... ... ( f) ... ... ... ... ... (g) ... ... ... ... ... (h) ... ... ... ... In the present case, the election of the petitioner was challenged under clause (b) of rule 60, on the ground that the petitioner was not qualified for or was disqualified from being elected as member of the District Council.

6. Now, dealing with the objections respectively, the first objection was to the effect that the presumption of truth was attached to the entries of electoral rolls, including the entry of age, as such it was not permissible to examine the question of age in the election petition. The answer to the objection is provided firstly, under rule 60 (b) which laid down that the Election Tribunal was competent to declare an election to be void if it was satisfied that on the nomination day, the returned candidate was not qualified from being elected as member of the council. The qualifications of a candidate, among others, required that the candidate, should be of 25 years of age on the day of his nomination. The age being a qualification, led to an inference that the objection relating to age was permissible to be examined by the Election Tribunal in an election petition, and secondly, that the scheme of law reflects that at the time of preparation of electoral rolls, the requisite age for a candidate occupies secondary consideration as the Registration Officer is primarily entrusted to see that a voter of the age of 21 years is enlisted as such. The age of a candidate is considered material only at the time of nomination of the candidate. Thus, an entry of age, requisite at the time of nomination, not being material at the time of registration of voters, cannot be placed on equal level with other entries. It is correct that it has been held by various High Courts and the Supreme Court of Pakistan that entries of the electoral rolls were not subject to examination in an elec tion petition, as on attaining their finality, presumption of truth was attached to them. But an exception was taken to the entry of age. It was held that an entry of age being a point of qualification, was subject to scrutiny by the Election Tribunal in an election petition. An identical proposition was raised in Ahsan Ali Mandal's case (P L D 1956 Dacca 41) before the learned Judges of Dacca High Court, wherein the objection like the one raised by Mr. Mumtaz Hussain Rathore, the learned counsel for the petitioner, was sustained. On appeal before the Supreme Court, the learned Judges disagreed with the learned Judges of the High Court and recorded their disapproval in P L D 1969 S. C.

5. The relevant observation is reproduced as under :‑ "The question before the Supreme Court was whether the Tribunal, hearing an election petition was competent to enquire as to age of the person and to set aside his election on ground that he did not possess the requisite qualification in regard to age for election to the Electoral College. It was urged before the Court that as the age of returned candidate was shown in the final Electoral Roll to be 27 years, the Tribunal could not go behind the entry which was final Held, the right to be enrolled as a voter is different from the right to be a candidate though the latter includes the former. The roll is prepared with a view to determining who are entitled to vote at an election and this is done after going through an elaborate procedure. In this view the right of a person whose name appears on the roll to vote cannot be questioned. This does not, however, mean that his right to be a candidate cannot be challenged on the ground that hisv does not possess the other qualification in this regard. The entry in respect of the actual age cannot be placed on the same footing as the as other entries." The authorities cited by the learned counsel for the petitioner rather support the impugned order as it is held that the Election Tribunal is competent to look into the objection of age of the returned candidate. The dictum of the Supreme Court was followed by the learned Judges of the Dacca High Court in the case of Shahidullah Kazi (P L D 1969 Dacca 868) per majority view.

7. The next objection pertains to jurisdiction of the Election Tribunal. It is un-denied that the Election Tribunal was vested with jurisdiction to resolve the objections within the frame‑work of Election Rules. Thus, the Election Tribunal was vested with the initial jurisdiction. A complete answer to the objection is available in P L D 1973 S C

226. It is observed as under :‑ "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done In the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non existent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. Where, therefore, the Claims Officer had misinterpreted and mis applied the circulars of the Claims Commissioner, Pakistan (directing Claims Officers to treated claims for zamindari and tenancy interests in claims filed under Schedule V leaving out jagirs and muafis) and treated even jagirs and muafis as claims in respect of properties under Schedule V, it was held that the Claims Officer, no doubt, decided wrongly but not without jurisdiction." The dictum of the Supreme Court finds equal support from the observations of the Supreme Court of Azad Jammu and Kashmir, made in Mir Alam Khan's case (P L D 1982 S C (A J & K) 107). The relevant part of the observation is reproduced :‑ "Another point which also requires consideration is, "had the High Court jurisdiction to entertain the writ petition of the respondent? Whenever an order is passed by an authority or Tribunal having exclusive jurisdiction, is passed in excess of the jurisdiction, the High Court, no doubt, will interfere. But distinction must always be made between an order passed without jurisdiction and an order passed wrongly. The distinction some time is very subtle one. To consider that the constitutional provision was designed to empower the High Court to interfere with the decisions of a Court or Tribunal of inferior, jurisdiction merely because in its opinion the decision is wrong, will be a wrong approach and it ought to be viewed with disapproval. In that case it would make the High Court's jurisdiction in distinguish able from that exercisable in full‑fledged appeal, which is not the intention of the Constitution‑makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly of wrongly. May, it be a question of fact or even of law."

9. In view of the aforesaid position of the case, the petition is dismissed in limine. M. B. A. Petition dismissed.