P L D 1957 (W (PLP)

A R. CHANGEZ, J.‑

This is a petition by Nawabzada Lieutenant‑Colonel Chaudhri Asghar Ali Khan under Article 170 of the Constitution for the issue of an appropriate writ of order to the respondents directing them that they should prepare a fresh programme for elections to the District Board, Gujrat, and should also prepare afresh new preliminary electoral rolls for, the various constituencies of the District Board in accordance with the District Board Election Rules, 1952. The petitioner, who is one of the candidates for 'election to the District Board, Gujrat, has challenged the validity of the electoral rolls on various grounds enumerated in the petition. It will, however, not be necessary to consider all the points raised in the petition as the learned counsel for the petitioner has addressed us only on the following three points :‑ (1) That the election programme was not prepared in accordance with sub‑rule (2) (a) of Rule 3 of the Election Rules. (2) That the preliminary electoral rolls for the various constituencies which were published by the Election Officer on the 20th of December 1956, were not prepared in accordance with Rule 8 of the District Board Election Rules, 1952, (hereinafter referred to as the Election Rules). (3) That no separate preliminary electoral rolls were prepared for the three constituencies reserved for women as required by sub‑rules (1) and (2) of Rule

8. In order to appreciate these objections, the relevant Rules are quoted below :‑ Rule 3(1) says‑ "The Election Officer shall with the sanction of the Provincial Government frame a programme for elections to a Board, hereinafter referred to as the election programme." Rule 3(2) provides‑ "The election programme shall specify the date, or dates, on, by or within which‑ (a) the electoral roll shall be prepared; (b) the electoral roll shall be published; Rule 8 lays down‑ "(1) The Election Officer shall cause a roll for each constituency to be prepared in Form 1 and published on the prescribed date together with a notice‑ (i) inviting claims and objections relating either to the inclusion of names in, or to the exclusion of names from, the electoral roll; (ii) specifying the period during which all claims and objections shall be presented; (iii) specifying the authority to whom claims and objec tions shall be presented; (iv) specifying the particulars that should be given in the claims and objections. (2) The names of voters on the rolls shall be arranged in alphabetical order within revenue estates and numbered serially by constituencies. (3) Notwithstanding anything contained in these rules no person shall be entitled to give more than one vote, and no person shall be recorded as a voter in more than one electoral roll. (4) Notwithstanding anything contained in these rules, the Provincial Government may direct that for any or all constituencies the electoral rolls for the constituencies concerned for elections to Legislative Assembly shall be deemed to be the preliminary rolls for the purposes of sub‑rule (1). (5) Copies of the rolls and the notice shall be posted at the office of the Deputy Commissioner and at the office of the Board and at such other places as the Election Officer may determine, and copies shall be available for sale at a price to be fixed by the Government and the proceeds of such sale shall be credited to the district fund." As regards the first objection, it has been contended by the learned counsel for the petitioner that the Election Officer had not specified any date in the election programme within which the electoral rolls for the constituencies were to be prepared. A copy of the election programme is attached to the petition, and it does riot mention at all anything about the preparation of the electoral rolls. Mr. S. A. Mahmud. Assis tant Advocate‑General, who has appeared for respondents Nos. 1 and 3, has not been able to explain the omission. It is thus clear that the election programme was not prepared in accordance with sub‑rule (2) (a) of Rule 3 of the Election Rules and is, therefore, invalid. As regards the second objection, the learned counsel for the petitioner has contended that as a matter of fact the Election Officer had not caused any rolls to be prepared for the various constituencies as required by sub‑rule (1) of Rule

8. What appears to have taken place is that the electoral rolls prepared in the year 1954‑55 for the proposed election to the Punjab Legislative Assembly which was to be held in the year 1955 but was not held were published by the Election Officer as preliminary rolls for the purpose of sub-rule (1) of Rule 8 of the Election Rules. Mr. S. A. Mahmud has conceded before us that no direction had been issued by the Provincial Government under sub‑rule (4) of Rule 8 in respect of these rolls. It, therefore, follows that in the absence of any direction by the Provincial Government these rolls could B not have been deemed to be the preliminary rolls for the purposes of sub‑rule (1) of Rule

8. Mr. Mahmud has, however, maintained that independently of any direction by the Provincial Government under sub- rule (4) of Rule 8, the Election Officer himself could have adopted these rolls as having been prepared under sub‑rule (1) of Rule

8. In our opinion this contention is without any substance. It is implicit in the rules that the authority entrusted with the task of the preparation of the preliminary electoral rolls should enter in the roll the names of all persons qualified to be enrolled. The first step in the process of election is to cause the preliminary rolls prepared strictly in accordance with the rules and the general practice is to make a door‑to -door enquiry and ascertain the number and particulars of qualified voters. The preliminary electoral roll is the very foundation on which the superstructure of election is built. Although the task of preparing such rolls is usually entrusted to petty officials, like the Patwaris etc., yet it is expected of them to perform their duties honestly and diligently. The object is to prepare a complete roll as far as possible so as to make it convenient for the voters to find out if their names have been included or excluded and thus to afford an oppor tunity to them to file claims and objections if necessary. Unfortunately, in the present case instead of causing the preparation of the electoral rolls as required by the rules the Election Officer has without any legal authority usurped the function of the Provincial Government which alone could have taken action under sub‑rule (4) of Rule

8. It is important to note that whereas the Government did not think it proper to give any direction under sub‑rule (4) of Rule 8 in respect of these rolls, the Election Officer appears to have assumed jurisdiction under this rule by using these rolls as preliminary rolls under sub‑rule (1) of Rule

8. The procedure adopted by the Election Officer is not warranted by the Election Rules. The learned counsel for the petitioner has pointed out that even the Provincial Government could not have directed that these rolls should be deemed to be the preliminary rolls as the same had not been prepared for the election to the Legislative Assembly of West Pakistan. Before sub‑rule (4) of Rule 8 was amended in September 1956, the Provincial Government could have directed that the electoral rolls for the constituencies concerned for the preceding election to the Legislative Assembly should be deemed to be the preliminary rolls, but since the amendment, the reference to the Legislative Assembly is obviously to the Legislative Assembly of West Pakistan, but as these rolls were not prepared in respect of any election to the Legislative Assembly of West Pakistan, the Provincial Government could not have given any direction in respect of them and the same could not have been deemed to be the preliminary rolls for the purposes of sub‑rule (1) of Rule 8 of the Election Rules. This argument also has some force. It is significant that the Government in spite of the amendment of the rule as indicated above did not avail of this provision by giving a direction that these rolls should be deemed to be the preliminary rolls for the purposes of sub‑rule (1) of Rule

8. It may be that after the amendment of the rule, the Govern ment found some difficulty in giving a direction in respect of these rolls. We, however, refrain from giving any decision in this matter. Mr. Mahmud has also argued that as the rolls have 'low been finally corrected and re‑published, they cannot be called in question either by a commission appointed under' Part III of these Rules or by any Court in view of the provisions of sub‑rule (3) of Rule 12 of the Election Rules. He has also maintained that by virtue of sub‑rule (2) of Rule 13 of the Election Rules, these final rolls had come into force from the date of their re‑publication and they shall continue in force until a fresh roll is prepared for the purposes of the next general election. The very fact that under the rules finality is attached to such re‑published rolls makes it all the more incumbent upon the Election Officer that he should cause the preliminary rolls prepared strictly in accordance with the rules. If the rules have been substantially complied with in the preparation of the final electoral rolls, the argument is unassailable that they cannot be called in question in any Court. There will be a presumption that the rolls have been correctly prepared. But if instead of complying with the rules, they have been completely ignored and the rolls have been prepared in utter disregard of the rules, we have no doubt in our minds that such rolls do not exist in the eye of law and as such can be challenged in a Court. Mr. Mahmud has also contended that the non‑preparation of electoral rolls as required by sub‑rule (1) of Rule 8 is, at the most an irregularity which should not vitiate the proceed ings taken on the basis of such rolls. He has laid special emphasis on the point that the voters had their remedy of filing claims and objections and in fact thousands of voters did file claims and objections, and a large number of them have been added in the lists. He has also pleaded that if fresh rolls are ordered to be prepared, it will cause great inconvenience and expenditure. We appreciate the good motives behind these arguments but they do not affect the legal position in the least. What is illegal and invalid cannot be declared to be legal and valid merely on the score of such specious arguments. An electoral roll is a list of persons qualified under the rules to exercise the right of vote in elections. This electoral roll has to be prepared with reference to the prescribed date mentioned in the election programme. This is the date with reference to which the qualifications of a voter are determined. On the prescribed date thousands of persons who were not voters in the preceding election, become qualified to be enrolled as voters and thousands of persons who were qualified voters in the preceding election are either dead or have become disqualified to remain as voters. The electoral rolls are, therefore, required to be prepared from time to time so as to bring them into accord with the position on the pres cribed date. If this is not done, the voters shall have to undergo the tremendous task of getting their names enrolled. Besides being expensive, it will be extremely inconvenient to pursue this course. In order to entitle the elector to vote, his or her name must appear in the electoral roll of the con stituency concerned. Enrolment is, therefore, absolutely necessary to entitle a person to franchise. The election rules lay down the method of preparing such electoral rolls and are intended to safeguard the interests of the voters. If the electoral rolls are prepared in accordance with the rules, then if there are some mistakes in them, they can be corrected by filing claims and objections. But if they are not prepared in accordance with the rules, then the remedy does not he by way of claims and objections. A direction shall have to bed issued to prepare them in accordance with the rules. Any departure there from or contravention thereof cannot be deemed to be a mere irregularity. In our opinion the con travention of such a fundamental rule amounts to an illegality which vitiates all the proceedings taken on the basis of such" illegally prepared rolls. Mr. Mahmud has further contended that some of the candidates have already been declared to be deemed to have been elected under the provisions of Rule 24 of the Election Rules, and in view of Rule 51 of the Election Rules, their election cannot be called in question except by an election petition presented in accordance with the rules or by an enquiry directed by the Provincial Government under Rule

69. It is arguable whether Rule 51 is applicable to a person who without contesting the election has been declared to be deemed to have been elected, but even if it is, the very basis of the election having disappeared, he cannot be deemed to have been elected in the eye of law. In the view which we have taken in respect of the preliminary electoral rolls of all the constituencies, it is need less to discuss at length the objections raised by the petitioner in respect of the women's constituencies. They are subject to the same objections which have been raised in respect of all the constituencies. An additional objection, however, is, that no separate rolls for the three women constituencies were published by the Election Officer and their names were not arranged in alphabetical order within revenue estates and numbered serially by constituencies. What appears to have been done is that a chit was affixed on every roll published for the men's constituencies saying that they should also be considered as being the rolls for women's constituencies. In these rolls the names of the women voters are not given separately but are intermingled with the names of the male voters, In our opinion these rolls having not been prepared in accordance with sub‑rules (1) and (2) of Rule 8 of the Election Rule are invalid. Mr. Mahmud has shown us the final electoral rolls which have now been prepared separately for these women constituencies, but we do not know if these rolls were caused to be prepared in accordance with sub‑rule (1) of Rule 8 as indicated above or the names of the women voters have been copied out from the men's constituencies and have been collected together. In any case, the preliminary rolls were not prepared in accordance with sub‑rules (1) and (2) of Rule 8 and, therefore, the finally corrected tolls as now published cannot be deemed to be final. Wes accordingly hold that these rolls are also invalid. We have also heard Sardar Muhammad Iqbal on behalf of Ch. Zahur Ilahi, who had been made a party at his own request. He is one of the candidates who claims to have been' declared elected by virtue of Rule

24. The points which have been raised by him are fully covered by the points urged by Mr. Mahmud and do not call for any further comment. For the aforesaid reasons the election programme of the District Board Elections of Gujrat District and the electoral rolls prepared in respect of all the constituencies of the District Board of Gujrat District, including the electoral rolls, prepared for the three women constituencies, are hereby declared to be invalid and are set aside. We also set aside all the proceedings taken by respondents Nos. 1 and 2 on the basis of the aforesaid election programme and the electoral rolls. We, direct respondents Nos. 1 and 3 to prepare a fresh programme for elections to the District Board, Gujrat. We further direct them to prepare a fresh new preliminary electoral rolls for all the constituencies of the District Board in accordance with Rule 8 of the Election Rules. On account of the illegality committed by respondent No. 3, the whole of the election programme shall have to be revised. Under the circumstances, the petitioner is entitled to have his costs from respondent No.

3. A. H. Direction issued.