The petitioner and respondent No. 5 are both candidates for the forthcoming election to the Local Bodies which are being held under the Punjab Local Government Ordinance, 1979 and the Rules framed thereunder. Nomination papers of the parties/candidates were scrutinized by the Returning Officer/A. D. C. (G), Dera Ghazi Khan and the nomination papers of respondent No. 5 were rejected by the Returning Offcer on 14th September, 1979 by means of a detailed order. He held that respondent No. 5 was below 25 years of age and that he was not eligible to contest the Local Bolies Elections from Electoral Unit No. 5 of Zila Council, Dera Ghazi Khan which were scheduled to be held on 25th of September, 1979. According to the order of the Returning Officer, the name of the said respondent figured in the Electoral Rolls of two villages namely Mauza Katcha Paru Shah Tehsil Dera Ghazi Khan and Town Committee Rojhan, Tehsil Rajanpur, District Dera Ghazi Khan. In the former his age was shown as 24 years while in the later he was shown as 23 years .Old.
2. The said respondent after the rejection of his nomination papers by the Returning Officer as aforesaid moved the Registration Officer/A. C., Rajanpur under section 18 of the Electoral Rolls Act, 1974 and sought to correct the Electoral Rolls. He filed two applications on 16th September, 1979 before the said officer. In the first application he sought to retain his name in the Electoral Rolls relating to Mauza Paru Shah while he sought to have his name deleted in the Electoral Rolls of Town Committee, Rojhan. This application was accepted and the name of the said respondent was deleted from the Electoral Rolls of Town Committee, Rojhan. Through another application, the said respondent sought to correct the entry with regard to his age. The respondent now wanted that his age should be shown as 25 years instead of 24 years as on 1-1-1979. This application was also allowed by the Registration Officer without an inquiry and the Electoral rolls relating to Mauza Katcha Paru Shah were amended accordingly on 16-9-1979. After accomplishing this, the said respondent filed an appeal under rule 16 of the Punjab Local Council (Electron) Rules, 1979. This appeal was accepted by respondent No. 2 and the order of the Returning Officer was set aside and the said respondent was allowed to contest the election and it was held that his name should be entered in the list of validly nominated candidates.
The petitioner has assailed the order of the Appellate Authority/Deputy Commissioner, Dera Ghazi Khan, respondent No. 2 and has argued that finality is attached to the entries in the Electoral Rolls which existed on the last date fixed for filing the nomination papers (which in the instant case was 12th of September, 1979) and that any subsequent amendment, correction or change in the Electoral Rolls could not be considered for the election which were being held under the Punjab Local Government Ordinance, 1979 and that the correction of entries in the Electoral Rolls on 16-9- 1979 after rejection of the nomination papers of the respondent No. 5 was a fraud upon the statute and that the impugned order had completely ignored the evidence and the material which was considered by the Returning Officer while rejecting the nomination papers of the said respondent and that the Appellate Authority has not acted judicially in the matter. Finally it was submitted that a vested right had accrued to the petitioner (as he was the only other candidate) after the rejection of the nomination papers of the said respondent and that the evidence of age (apart from entries in Electoral Rolls) which was placed before the Returning Officer could not be ignored by the Appellate Authority.
Learned counsel for respondent No. 5, however, relied upon rule 15(3) of the Punjab Local Council (Election) Rules, 1979 and submitted that the Returning Officer cannot reject nomination papers on the basis of entries in the Electoral Rolls which contains an obvious error or defect and that the entries with regard to the age of respondent No. 5, in the instant case, came within this category and could be corrected. He further submitted that the petitioner in this case had the alternative remedy provided by section 17 of the Punjab Local Government Ordinance, 1979 and that this present writ petition was misconceived.
3. It is the admitted position of the parties that the last date for filing of the nomination papers was 12th of September, 1979 and that the nomination papers of respondent No. 5 were rejected by the Returning Officer on 14-9-1979. The Returning Officer had held that respondent No. 5 was below 25 years of age and that he was not eligible to contest the Local Bodies Election from Electoral Unit No. 5 of Zila Council, Dora Ghazi Khan.
According to the relevant entries in the Electoral Rolls the age of the said respondent was shown (in Mauza Katcha Paru Shah) as 24 years while in the Electoral Rolls of Mauza Rojhan he was shown as 23 years old. It is also not denied by any of the parties that the said respondent got the entry with regard to his age corrected by the Registration Officer/A. C., Rajanpur on 16-9-1979. By mans of this correction, he had been shown as 25 years as on 1-1-1979:
4. Election to the Local Bodies is being held under the Punjab Local Government Ordinance, 1979 and the Rules framed thereunder. Section 18 of this Ordinance lays down that Electoral Rolls prepared for the election of members of Provincial Assembly as amended from time to time and adopted for Local Council shall be the Electoral Rolls for election to Local Council. Every person enrolled as a voter on the Electoral Roll has a right of vote. Section 24 of the Ordinance, which is the pertinent section in the instant case reads as follows "Any person who bas attained the age of twenty-five years on the 14 day fixed for filing the nomination papers shall be qualified to be a candidate for election to an electoral unit of a local council if for the time being his name appears on the electoral roll of the electoral unit."th Thus a person who has attained the age of 25 years on the last day fixed for filing of nomination papers and whose name appears on the Electoral Roll of that Electoral Unit may become a candidate for the election to the Local Council. The last day fixed for filing the nomination papers, admittedly in the present case was 12th September, 1979. Thus the crucial factor for determining the age of a candidate would be the entries in the Electoral Roll of the Electoral Unit with regard to him and if according to these entries he had attained the age of 25 years on 12th September, 1979, he would be qualified to be a candidate for the election.
5. In the instant case, according to two entries in the Electoral Roll of Mauxa Katcha Paru Shah and Electoral Rolls of Town Committee, Rojhan, the age of respondent No. 5 was shown as 24 years and 23 years respectively on 12th of September, 1979. He sought to correct these entries and the entry with regard to his age was in fact corrected by the Registration Office under section 18 of the Electoral Rolls Act, 1974 on 16th September, 1979. This fact is not denied by the learned counsel for respondent No. 5. In fact the Registration Officer/A. C. Rajanpur who was present in Court with the relevant record submitted that respondent No. 5 did not disclose to him that his nomination papers had been rejected on 14-9-1979 by the Returning Officer and that had he in fact known this, he might have come to a different. Conclusion. In any case it would not change the legal position and that the correction made by the Registration Officer in the Electoral Rolls with regard to the age of respondent No. 5 on 16-9-1979 would be valid for the forthcoming elections to the Provincial and National Assemblies which may take place after 16th of September, 1979. This correction would not have; any retrospective effect so as to validate nomination papers which have been rejected on 12-9-1979. This correction, is of no avail to respondent No.5 for the forthcoming Local Council Elections where the last date for filing tb nomination papers was 12th September, 1979.
6. The learned Advocate-General submitted that under section 20 of the Electoral Rolls Act, 1974 no correction can be made at any time after constituency has been called upon to elect its representative and before such a representative has been so elected. He submitted that there was no similar provision in the present law, i.e. In the Punjab Local Government Ordinance, 1979. He argued that section 20 of the present Ordinance is the nearest thing to it and that it could be validly said that the crucial date for determining the age of 25 years would be the last date fixed for filing the nomination papers for election to a Electoral Unit of a Local Council. Thus the position which obtains on the Electoral Rolls on 12th September, 1979 vis-a-vis the age would be the determining factor.
7. Dr. Danishwar Malik, learned counsel appearing for the Election Commission, submitted that under section 18 of the Electoral Rolls Act, 1974 a Registration Officer can correct an entry in an Electoral Roll but this should be preceded by an inquiry as contemplated under section 18(2) (a). If indeed the Registration Officer has not conducted an inquiry as envisaged in section 18(2) (a) the Election Commission would not support the action taken by him. He conceded that there was ample material in this case to the contrary which has not been considered by the Registration Officer and that the correction by the Registration Officer was clearly not justified.
On the point of relevancy of the correction in the Electoral Rolls in the present context it was submitted that the lawfully corrected entry in any case would not operate retrospectively and would be valid for election which may be held in future. For the purposes of Elections under the Punjab Local Government Ordinance, 1979 a person should be 25 years of age on the last date of filing the nomination papers which in the instant case was 12th September, 1979 and the position of the Electoral Rolls obtaining on that date would alone be relevant. The qualifying age for a candidate to the Local Bodies Election under section 20 would, therefore, have to be 25 years on the last date of the filing of the nomination papers.
8. So far as the submission that a Registration Officer has the necessary power of correcting an entry in the Electoral Rolls this position is undisputable. In fact it is not opposed by any other party.
However, the crucial question remains whether an inquiry was indeed held before the Registration Officer decided to correct the entry with regard to age. On the face of record no such inquiry appears to have been conducted because there was abundant material to the contrary which has been discussed in the order dated 14-9-1979 and not taken note of by the Appellate Authority.
9. There is nothing on the record to indicate that the entries with regard to the age in the two Electoral Rolls referred ,to above contain any obvious error or defect.
10. No doubt section 17 of the Punjab Local Government Ordinance, 979 gives wide power of review to the Election Authority. These are essentially discretionary powers. They cannot be invoked by the petitioner as of right. In any case in my view, the mere fact that the relief sought by the petitioner could be obtained by resorting to Election Authority under section 17 of the said Ordinance would not stand in the way of issuing writ. The issuance of writ would enure to the benefit and the convenience of the patties and would also save time specially when the elections to the Local Bodies are going to be held on 25th of September, 1979. Directing the petitioner to move the Election Authority at this stage would tantamount to denial of relief.
11. In view of the above discussion I hold that respondent No. 5 was not qualified to be a candidate within the meaning of section 20 of they Punjab Local Government Ordinance, 1979 on -the last day fixed for filing the nomination papers, i.e. 12th September, 1979 and that his nomination' papers were rightly rejected by the Returning Officer/A. D. C(G), and that the Appellate Authority could not take into consideration subsequently corrected Electoral Rolls to validate the nomination papers of respondent No. 5. The impugned order dated 18-9-1979 of the Appellate Authority is declared to be illegal and without lawful authority.
This writ petition is accepted. There would be no order as to costs.