1988 PLP 564 (CLC)

Defendants Nos. 1 and 2 did not file any objections to the award. It is however, alleged by the counsel for the defendants Nos. 1 and 2 that although he had not filed objections in this suit but he had filed counter‑affidavit to an application under section 14 filed by the plaintiff which was numbered as J.M. 11 of 1983. That counter‑affidavit which was filed on 22‑10‑1983 should be treated as objections to the award. In this connection he has relied upon A I R 1954 Mad. 560 Ramasami Serval v . Muthiralayee where it was held that the counter‑affidavit filed by the respondents to application for passing of decree in terms of an award filed within 30 days of the service of notice of the petition, counter‑attacking the genuineness and validity of the award can be treated as an application within the meaning of section 17 of the Arbitration Act. I doubt if this ruling can be applied to this case. Counter affidavit filed in this case cannot be treated as objections to the award because the reference was made by Arbitrator in this case on 21‑12‑1983 i.e. two months after filing of this counter‑affidavit. Defendants Nos. 1 and 2 neither filed a copy of this counter‑affidavit in pursuance to the notice of this reference which was numbered as Suit No. 738 of 1983 nor J.M. 11 of 1983 was a part of the record of this case. His having filed counter‑affidavit in a case before filing of the award in the Court cannot be treated by any stretch of arguments as objections to that award. Mr. A. Latif Shakoor next urged that the Court can su motu set aside this award in spite of the fact that no objections were filed, because it was time‑barred and therefore was illegal and void. The grounds which are urged by Mr. Abdul Latif A . Shakoor for setting aside this award are (i) that the agreement of reference was' made on 27‑7‑1981 while the award was given on 9‑3‑1983, hence it had become time‑barred as the period of limitation according to the first schedule of Arbitration Act was only 4 months. (ii) That C.M.A. No. 5421 of 1984 which was an application under section 28 of the Arbitration Act and was filed for extension of time by plaintiff's counsel was dismissed on 25‑11‑1986 and therefore the Court had refused to extend the time. Both these objections were considered by. the D . B . which heard the 8ppeal against the order of this Court dated.,_ 16‑3‑1987 and had observed as follows:‑‑ "Furthermore the Court has power to extend the period for giving an award even after expiry of the period and after giving of the award. Since the award has been made rule of the Court the Court has impliedly extended the period." Subsection (1) of section 28 of the Arbitration Act is also quite clear on the point which reads as under:‑‑ "

28. Power to Court only to enlarge time for making award.‑‑(1) The Court may, it thinks it, whether the time or making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award." Even the legal proposition of implied extension of time is well‑I1 aforementioned votes and therefore, his vote and the other votes mentioned above could not be adjusted in electoral unit No. 10 by treating the petitioner and the other voters as residents of Abadi which is a part of electoral unit No. 10 as they do not reside there; (ii) That the acceptance of nomination paper of the petitioner despite objection in this regard that his residence is in electoral unit No. 10 also shows that the petitioner at the relevant time viz at the time of filing of nomination paper as also at the time of issuing of notification under rule 12 of the Punjab Local Councils (Election) Rules, 1979 was a voter on the electoral roll of urban area block No. 29, census code No. 02, i.e. electoral unit No. 9 of Municipal Corporation, Sargodha. (iii) That it has been held by the Supreme Court of Pakistan in Emmanual Masih v. The Punjab Local Councils Election Authority and others reported as 1985 S C M R 729 that the Returning Officer or the Election Authority cannot go behind the entries in the electoral rolls at the present stage; and (iv) That no change which takes place after the issuing of notification under rule 12 of the Punjab Local Councils (Election) Rules, 1979 can be considered in view of 2nd proviso to section 18 of the Punjab Local Government Ordinance, 1979.

7. On the contrary the learned counsel for Muhammad Salim petitioner in Petition No. 72/N of 1987 has only submitted that respondent No. 2 in that petition viz. petitioner in Petition No. 100/D/ER is a voter on the adjusted and re‑arranged electoral roll of electoral unit No. 10 of Municipal Corporation, Sargodha and, therefore, his‑ nomination paper should not have been accepted from Electoral Unit No. 9.

8. In reply the learned counsel for Abdur Rehman petitioner in Petition No. 100/D/ER has submitted that as already pointed out by him in his submissions, the petitioner per record produced by him is a voter on the electoral roll of Electoral Unit No. 9 and, therefore, there is no basis to hold that he is a voter on the electoral roll of electoral unit No.10 merely on account of an entry to that effect made in the adjusted electoral roll after a visit of Returning Officer subsequent even to the date of acceptance of nomination paper of the petitioner especially when the petitioner's house even now can be verified to be in Urban Area Block No. 29.

9. The Returning Officer present has categorically verified today before me that he had visited the site after the date of scrutiny and acceptance of nomination paper of Abdur Rehman and the disputed transfer of votes was effected after the said date.

10. Having given consideration to the controversy involved, I find force in the contentions raised on behalf of the petitioner in Petition No. 100/D/ER of 1987 especially in view of the fact that in the electoral roll issued by the Election Commission of Pakistan the vote of petitioner appearing at serial No. 1198 is in Urban Area Block No. 29 of Municipal Corporation, Sargodha which admittedly falls in final delimited Electoral Unit No. 9 of the said council.

11. It may also be observed that the alleged transfer of votes of the petitioner and the other 290 aforementioned votes from Electoral Unit No. 9 to Electoral Unit No. 10 is highly objectionable and violative of the clear provisions of the law governing the subject. The finally adjusted and re‑arranged electoral roll having been published on 4th of November, 1987, the nomination papers having been filed in accord therewith and the scrutiny of nomination papers having also taken place there was hardly any justification to undertake the exercise for transfer of votes which in the attendant circumstances cannot be held to be otherwise than mala fide. The provision of law on the subject i.e. proviso 2nd to section 18 of the Punjab Local Government Ordinance, 1979 clearly provides that correction if any made in respect of any electoral roll at any time after the voters of the electoral units have been called upon to elect the member shall not be taken into consideration till such time that member has been elected. The instructions issued by the Election Authority in the above connection are also very clear and categorically lay an embargo on the Returning Officers to effect any change regarding the votes after the publication of the adjusted lists of voters till after the election has been held. The said‑transfer of votes, therefore, is obviously violative of law and instructions and cannot be, therefore, given any effect whatsoever at this stage or for that matter at the stage at which it is purported to have been done. The attempt of the transfer of the votes of the petitioner and the other 292 votes detailed above from electoral unit No. 9 to Electoral Unit No. 10 being illegal has of necessity to be struck down as at present and the said transfer shall not effect the election in hand.

12. In view of the foregoing discussion, this Petition No. 100/ D/ER of 1987 titled Abdur Rehman v. Returning Officer is accepted and it is directed that the alleged transfer of votes detailed in para 5 above from adjusted Electoral Unit No. 9 to Electoral Unit No. 10 of Municipal Corporation, Sargodha shall not be considered and given effect till the members from the above units have been elected and that the said 291 votes i.e. the vote of the petitioner and 290 other votes, shall remain in tact on the electoral roll of Electoral Unit No. 9 as originally adjusted in the said electoral unit.

13. Adverting now to the Petition No. 72/N titled Muhammad Salim v. Additional Commissioner and another wherein Abdur Rehman petitioner in Petition No. 100/D/ER is respondent No. 2, it may be pointed out that this petition calls in question the acceptance of nomination paper of Abdur Rehman on the ground that his vote is not on the adjusted electoral roll of Electoral Unit No. 9 from which his nomination paper has been accepted. For reasons given herein above while accepting the petition of Abdur Rehman whose vote has been ordered to be kept in tact on the electoral roll of electoral unit No. 9, the defect being pointed out is non‑existent at this stage. The entry of vote of Abdur Rehman in the electoral roll issued the Election Commission of Pakistan being in the urban area block No. 29 of Municipal Corporation Sargodha which falls in Electoral Unit No. 9 is not open to challenge at the present stage of scrutiny of nomination papers as has been held in 1985 S C M R 729.

14. Resultantly the Petition No. 72/N of 1987 is devoid of force and it is accordingly dismissed. S.Q./24/E Orders accordingly.