P L D 1959 (W (PLP)

B. Z. KAIKAUS, J.

Elections to the Cantonment Board, Lahore Cantonment, have been fixed for the 24th of September 1958, and two Writ Petitions (Nos. 729 and 730 of 1958) have been filed by persons entered as voters on the electoral rolls challenging the preparation of the electoral roll in respect of Wards Nos. 3 and

4. It is claimed on grounds to which I will presently refer that the electoral roll prepared is illegal and void and the prayer is for a mandamus or any other appropriate writ directing the respondents, i.e., the Cantonment Board and the Executive Officer of the Lahore Cantonment Board, to prepare fresh electoral roll for Wards Nos. 3 and 4 and not to hold elections on the basis of the illegally prepared electoral roll.

2. In order to explain the main ground of attack a refer ence has to be made to the rules and to certain facts. Under rule 15 of the Cantonments Electoral (Preparation, Revision and Publication of Electoral) (Elections and Election Petitions) Rules, 1952, which are admittedly applicable, the Executive Officer has to get prepared the electoral roll through an official or officials whom he is to appoint. After the preliminary roll is prepared he is to give a notice under rule 16 of the preparation of such electoral roll. He has to post copies of the roll at the office of the Cantonment Board and at some other places and he has to invite claims and objections. After these claims and objections have been disposed of there should be prepared and published the final electoral roll as required by rule 23, the whole of which I reproduce below :- "

23. Final Publication of the Electoral Rolls.-The electoral rolls shall be corrected in accordance with orders passed under rule 22 and finally published by printing or otherwise. (2) Three copies of the electoral rolls as finally published shall be certified by the President as correct copies and one copy thereof shall be forwarded to the Director, Military Lands and Cantonments, Ministry of Defence, for being deposited there. (3) A copy of the corrected roll shall be posted up at the Cantonment Board Office and a notice thereof shall be posted up in every ward throughout the Cantonment not later than the 15th June each year. Provided that if there are no corrections in the electoral roll as originally prepared, only publication of such fact shall be necessary under the signature of the President. (4) The electoral roll as finally published shall continue without alteration, except under subsection (3) of section 27 of the Act, to be the valid electoral roll of the Cantonment until superseded by a fresh roll prepared at the next revision in accordance with these rules. (5) Failure to observe the dates and intervals of time prescribed in these rules or preparation of the electoral roll shall in no way invalidate the correctness or the conclusiveness of the roll in the election or in an enquiry relating to an election. (6) Any person whose name is borne on the electoral roll as finally published shall be entitled to purchase from the Canton ment Board Office one copy of the roll for his own ward, at a reasonable price to be fixed by the Board or where a Board is not constituted, the Officer Commanding the Station."

3. As admitted by both parties the electoral roll was prepared in accordance with rule 23 on the 12th of June 1958. The allega tion of the petitioners is that after the preparation of the final electoral roll and its publication by means of printed copies on or after the 12th of June 1958, the Executive Officer issued two corrigenda, one on the 12th of July 1958 and the other on the 4th of August 1958, by means of which a number of corrections were made in the electoral roll as printed and made available to the public on the 12th of June 1958. The respondents admit that two corrigenda were printed but they allege that the corrigenda of the 9th of July was printed but not issued because it was itself found to be incorrect. It is admitted that the second corrigendum was issued because there were a number of clerical mistakes in the printed copies of the roll. The main contention of the petitioners is that when printed copies were made available to the public on the 12th of July 1958, they became the "electoral rolls as finally published" within the meaning of rule 23 and no variation, correction or alteration in that roll was legally permis sible. The election, therefore, which is going to be held on the basis of the corrigenda will be illegal and void. The respondents allege that on the 12th of July 1958, three signed copies of the roll as provided by rule 23 were prepared, the first being the original preliminary roll (strictly speaking not a copy) which had been corrected after the decision of claims and objections, and the other two being fair copies in hand of that roll. All the three copies were signed by the President of the Board and one of them was sent to the Director, Military Lands and Cantonments, Ministry of Defence, while another was posted at the office of the Cantonment Board. The printed copies, they state, are not quite in accordance with the signed copies on account of clerical mistakes and the corrigendum which they have issued is only intended to make the printed lists conform to the certified copies of the roll. Their reply to the contention of the petitioners is that the manuscript electoral roll signed by the President, which is lying in the office, was published by a signed copy of it being posted at the office and-, therefore, even though some wrong printed copies were issued the "electoral roll as finally published" within the meaning of rule 23 will be the correct manuscript electoral roll which is lying in the office. The petitioners deny that a certified copy of the electoral roll was posted at the office and allege that it was only a printed copy which was posted at that place. The Executive Officer of the Cantonment Board has filed an affidavit in support of his allegation that it was one of the signed copies that was posted at the office and not a printed copy. A number of affidavits have, on the other hand, been filed on behalf of the respondents stating that only a printed copy was posted at the office. It is not possible for us to decide satisfactorily the question as to which of these two allegations is correct unless we record the statements of the deponents and even then it may not be possible to decide the question without taking further evidence. These proceedings are summary and the date of the election is near and we do not think we should decide this point at all in these proceedings. If we do not decide this question of fact one way or the other, then the petitioner cannot succeed on the main point urged by him for it may be that the copy posted at the office was one of the certified copies, and learned counsel for the petitioners does not even contend that in that case the roll would not be published by means of that copy.

4. I would not, however, place the case on this footing alone because there is little doubt in my mind that even if it was a printed copy of the roll that was posted at the office, that would not mean that the printed copy became the roll "as finally published" which was not subject to any alterations and on the basis of which election was to be held. The true electoral roll for a constituency is only the roll as prepared and certified in accordance with the rules. It is that roll which is intended to be published. If errors creep into printed copies of it, those printed copies certainly do not become the roll and any election held on the basis of such wrong printed copies would be liable to be set aside if there was a material difference between the printed copies and the original roll so that the result of the election was affected. It is impossible to accept the argument that the printed roll becomes the roll for that constituency. Suppose the printing is by a number of presses and the different presses make different mistakes so that the printed copies do not tally even with each other, which copy will then be the electoral roll ? The intention of law must be presumed to be that it is the true roll prepared in accordance with the rules that becomes the roll for a constituency. If mistakes occur in the printed copies they can always be corrected. It may be objected, which will be the "finally published roll" if the roll is published only by printing and the printed copies are not correct ? The answer is that as long as the printed copies do not tally with the original, there is no proper anu complete publication and in order that the publication be proper and complete any mistakes-that were made in the printed copies can be corrected at any time subject of course to adjustment of the programme of the election so that no person's interests are affected by those mistakes. If the contention of learned counsel for the petitioners were to be accepted the issuing of incorrectly printed copies of the roll would create an impesse. He contends that an election held on the basis of the incorrect printed copies should be set aside, but contends at the same time that they only contain the roll "as finally published" and their correction is illegal. When asked what should be done if incorrectly printed copies have been issued, his reply is that claim and objections should be invited again and another roll prepared. For this proposition he cannot refer to any rule and there does not appear any good reason why the smallest clerical mistake in a printed copy should so upset the whole programme of the election and should also give fresh opportunities not only for claims but for objections. 'I would, therefore, hold that the main objection of the petitioners fails on this ground too.

5. The second objection is that while hearing claims and objections, the officer who was hearing them did not give the persons concerned sufficient time and opportunity for proof of their cases and also did not record reasons as required by the rules. It is alleged that in one ward 650 claims and objections were disposed of during the course of one day only. In reply to this the respondents state that the officer who disposed of the claims and objections worked till 2 a.m. and that the allegation that there was no sufficient opportunity to any person to adduce evidence is untrue. It is not, however, necessary to go into the merits of this petition, for it should be rejected on the simple ground that the claims and objections were disposed of on the 19th of March 1958, and the petitioners moved this Court only on the 18th of August 1958. It is clear to me that this objection has been taken because the writ petition is being filed on another ground. If the petitioners had a real grievance they would have moved earlier.

6. The third objection relates to section 27 of the Canton ments Act which runs as under:- "27. (1) The following persons shall, if not otherwise disqualified, be entitled to be enrolled as electors, namely :- (a) every person who in any year has, on or before such date as may be fixed by the Central Government in this behalf by notification in the official Gazette (hereinafter in this section referred to as the aforesaid date), been assessed directly and on his own account to taxes under this Act (other than octori, toll, or terminal tax), the aggregate value whereof is not less than such amount as the Central Government may by rule prescribe, and who on the aforesaid date is not in arrears in the payment of any such tax; (b) every person who has for a period of not less than six months immediately preceding the aforesaid date resided in the cantonment and on the aforesaid date- (i) is the owner or the mortgagee in possession or the lessee of any building or land in the cantonment, of an annual value calculated in such manner, and of not less than such amount, as the Central Government may by rule prescribe ; or (ii) is carrying on any business in the cantonment from which he derives an annual income calculated in such manner, and of not less than such amount, as the Central Government may by rule prescribe ; or (iii) has before the fifteenth day of August 1947, passed the Matriculation or other equivalent examination of any University established by law in British India or, on or after that day of any University established by law in Pakistan ; or (iv) is a person whose name is entered on the current electoral roll of the constituency of which the cantonment forms part for the purposes of the Central or Provincial Legislature ; or (v) is a retired or pensioned officer, whether commissioned, or non-commissioned of His Majesty's forces ; (c) every person who has, for a period of not less than six months immediately preceding the aforesaid date, resided in the cantonment and has during that period been assessed to income-tax. Explanation.-When any place is declared a cantonment for the first time or when any local area is first included in a cantonment, residence in the area comprising the cantonment on the aforesaid date shall be deemed to be residence in the cantonment for the purposes of this subsection. (2) A person, notwithstanding that he is otherwise qualified, shall not be entitled to be enrolled as an elector if he on the aforesaid date- (i) is not a citizen, or is not deemed to be a citizen of Pakistan under any law for the time being in force, or (ii) is less than 21 years of age, or (iii) has been adjudged by a competent Court to be of unsound mind, or (iv) is an undischarged insolvent, or (v) has been sentenced by a Criminal Court to imprisonment for a term exceeding two years or to transportation for an offence which is declared by the Central Government to be such as to unfit him to become an elector or has been sentenced by a Criminal Court for any offence under Chapter IX-A of the Pakistan Penal Code: Provided that the Central Government may, by order in writing, remove any disqualification incurred by a person under clause (v): Provided further that any disqualification incurred by a person under clause (v) shall terminate on the lapse of three years from the expiry of the sentence or order. (3) If any person having been enrolled as an elector in any electoral roll subsequently becomes subject to any of the dis qualifications referred to in clauses (i), (iii), (iv) and (v) of subsection. (2), his name shall be removed from the electoral roll unless, in the case referred to clause (v), the disqualification is removed by the Central Government." It will be observed that according to section 27 (1) (b) (iv), a person whose name is entered on the current electoral roll of the constituency of which the cantonment forms part for the purposes of the Central or Provincial Legislature, is entitled to be enrolled as an elector provided, of course, that he has resided within the cantonment area for a period of not less than six months on a date to be fixed by the Central Government. The objection of learned counsel for the petitioners is that this provision is in conflict with Article 5 of our Constitution which provides that all men shall be equal in the eye of law and shall be entitled to equal protection of the laws. This provision he says is discriminatory and the reason he puts forward is that a person who became entitled to be entered in the electoral roll for the Central or Provincial Legislature after such roll was prepared is not entitled to be entered in the list of voters for the Cantonment Board, whereas a person who is actually entered in the electoral roll of the Provincial or Central Government is so entitled. This he says is discrimination because there is no reason why a person who is entitled to be entered in the electoral roll of the Provincial Legislature should not be granted a right of vote whereas the person who is actually entered has got this right. According to him this provision in section 27 should be deleted and it should be sub stituted by a provision that any person who is entitled to be registered as an elector in the electoral roll of the Provincial or Central Legislature should have a right to vote.

7. The wording of Article 5 is not by itself very clear, but the generally accepted interpretation of a person being entitled to equal protection of the laws is that the same law will apply to persons in like circumstances. Reasonable classification, however, is admittedly permissible, and the only point is whether the classification that a person entered in the electoral roll of a Legislature should be entitled to vote in the elections to the Cantonment Board is a reasonable one. Now, there could be no objection at all to a law that any person who is a voter for the Provincial or Central Legislature should also be a voter for the Cantonment Board. Learned counsel for the petitioners accepts that this would be very reasonable. That a person is a voter in the Provincial Legislature is a status and the law could reasonably grant to the person who holds this status the right to vote in the Cantonment Board elections. The only objection of learned counsel is that it should be the person entitled and not a person entered in the electoral roll who should have this right. He points out that a person may have been 21 years of age and another only one day less than 21 years when an electoral roll of the Central or Provincial Legislature was prepared, and he contends that it would be wrong to discriminate between the two when elections to the Cantonment Board are held.

8. But it is obvious that the only proper way in which the Legislature could provide for the voters in the Provincial or Central Legislature being voters also in the Cantonment Board was to say that those entered in the electoral roll of the -Central or Provincial Legislature should be entitled to vote and not that those who are entitled to be so entered should have a right of vote, for in that case the officer who is preparing roll for the Cantonment Board will himself have to decide as to who are and who are not entitled to vote in the Central or Provincial Legisla ture and this would be wrong. That officer may come into conflict with the decision of the Election Commissioner who gets the roll for the Central and the Provincial Legislature prepared. He may decide that a person is entitled to be entered in the roll of the Central or Provincial Legislature whereas the Election Commissioner may decide that he is not so entitled. It is the Election Commissioner's decision that should prevail. In fact it would seem strange that an officer appointed by the Executive Officer of the Cantonment Board should be deciding as to who is entitled to vote in elections to the Central or the Provincial Legislature. As regards the objection that even a difference of one day would affect the right to vote, this cannot be avoided, and this happens in the case of all elections. An electoral roll may have been prepared years before an election is held and at the time when the election is taking place one person may be of 24 years of age another one day less than 24 years, and one of them may have a right of vote and other may have no such right. This circumstance does not attract the application of Article 5 of our Constitution.

9. This third objection too does not appear to me to have any force. I would dismiss this writ petition with costs. MASUD AHMAD, J.

I agree. K. B. A. Petition dismissed.