P L D 1966 (W (PLP)

Raja Muhammad Anwar and Ch. Bashir Ahmad for Petitioner. S. Munir Hussain for Respondent No.

3. Date of hearing: 10th January 1966. S. A. MAHMOOD, J.‑By this petition under Article 98 (a) of the Constitution of Islamic Republic of Pakistan, Sardar Khan seeks a declaration that the order of the Regional Election Commissioner, respondent No. 1, dated the 10th of October 1964, is without lawful authority and of no legal effect.

2. The petitioner's name was recorded in the electoral roll of Electoral Unit No. 5 of Murree Municipality, to which objection was taken by Safdar Iqbal Puri, respondent No. 3 on the allegation that the petitioner did not reside in that ward. The objection was rejected by the Registration Officer on the 12th of September 1964, as he held that "by being a mortgagee in possession of a house situated in the limits of the ward, he was a resident of the Electoral Unit, as defined in section 10 of the Electoral College Act." To have this order reviewed, respondent No. 3 filed a petition before the Regional Election Commissioner, West Pakistan, Lahore, who accepted it, holding that as the house in dispute was owned by another person and there cannot be two owners, as distinct from co‑owners, of one property, that a mortgagor does not lose his proprietary right, which is not transferred to the mortgagee, and the mortgagee merely collects and appropriates rent, the present petitioner could not be treated as owner of the said property, and he could not, therefore, be deemed to be a resident on the ground of his being in possession of the property. He held that the word "possession" in section 10 (1) meant physical possession and not constructive possession, and since the present petitioner resided in another house, he could not be deemed to be in possession. He, therefore, directed in exercise of powers under section 82 of the Electoral College, Act that the name of Sardar Khan petitioner be deleted from the electoral roll of Electoral Unit No. 5, and be registered in the electoral roll of another unit, in which he is eligible.

3. The order of the Regional Election Commissioner having been challenged before this Court by this writ petition, it was contended before us at the preliminary hearing that the petitioner being in possession of a dwelling house within the meaning of subsection (1) of section 10 of the Electoral College Act, his name could not be ordered to be removed from the Electoral Unit No.

5. The petition was admitted and it was directed that his nomination paper, if filed, may not be rejected on the ground that his name was not entered in the electoral roll of that ward. He stood as a candidate for election and was opposed by respondent No. 3, who retired from the election, with the result that the petitioner was declared elected to the Electoral College.

4. We have no hesitation in holding that the Regional Election Commissioner misconstrued section 10 of the Electoral College Act in holding that the petitioner could not be deemed to be a resident for purposes of Article 157 (c) of the Constitution of Islamic Republic of Pakistan, which provides that except as provided by law any citizen, who is a resident of, or who is deemed by law to be a resident of, an Electoral Unit, shall be entitled to be enrolled on the electoral roll for that Electoral Unit. Section t 0(1) provides the definition of "resident" and "person deemed to be a resident". A person is resident in view of subsection (1) of section 10 of the Electoral College Act if he~ resides or owns or is in possession of a dwelling house or other immovable property, or works for gain in that unit. It follows that more than one person can be deemed to be "resident" by reason of a dwelling house or other immovable property being situate in an Electoral Unit. A person owning it, a person in its possession, and a person who works for gain in that property, is each a "resident" and thus entitled to be enrolled on the electoral roll, if he possesses the qualification of age and is not otherwise disqualified to be on that roll. If an owner has mortgaged dwelling house or other immovable property with possession to another person, then the mortgagee in possession, whether ,g actual or constructive, is equally entitled to be enrolled on the electoral roll, as the owner of that property is. Therefore, the distinction drawn by the Regional Election Commissioner is no dis tinction at all. It is not necessary for being a resident that a person should both own a house and actually possess it. It is enough that a person either owns or is in possession of a dwelling house or immovable property. Even if a person is mortgagee with possession and has rented out a property, he is in its possession and has to be deemed a resident for purposes of subsection (1) of section 10 in the Electoral Unit where the property is situate. Actual physical possession is not necessary for the word "possession" has been used not in the strict sense of actual possession, but in the legal sense. Therefore, the decision of the Registration Officer rejecting the objection of the respondent was correct and the Regional Election Commissioner has materially erred in the exercise of its jurisdiction in holding to the contrary regarding section 10 of the Electoral College Act.

5. Rule 13 of the Electoral College Rules, 1964, provides the manner of making and lodging objections, and its sub‑rule (7) provides that if the Registration Officer rejects the objection, his decision shall be final. Therefore, the rejection of the respon dents objection by the Registration Officer was final. Rule 14 of the Electoral College Rules allows an appeal against the rejection of a claim or the acceptance of an objection, (and under its sub‑rule (4) the decision of the revising authority shall be final.) Thus, in this case, an appeal by the respondent was not competent and none was filed. The respondent, therefore, moved a petition before the Regional Election Commissioner, who purporting to act under section 82 of the Electoral College Act reviewed the order of the Registration Officer, and assuming that he had the necessary authority to review the order of the Registration Officer, he acted, as we have held, with material irregularity in the exercise of his jurisdiction. We have no hesitation in holding that his order being contrary to law is without lawful authority.

6. We find that the petitioner has been declared elected and an election petition has not been filed against his election either, by the respondent No. 3 or by anyone else. Thus the object of the petition has been achieved, and this petition is infructuous. As we do not apprehend that any action is likely to be taken against the petitioner to unseat him on the ground that his name did not appear on the electoral roll, we make no declaration or order as is prayed for by the petitioner, but if any attempt is made to remove him from membership on the ground of his name not being on the electoral roll, he can move this Court to grant him the relief, which he has sought. We order as above, and make no order as to costs. S. Q. Order accordingly.