A. RAHMAN, J.-The petitioner and 17 other persons, including Ghulam Qadir, respondent No2, took part in the local councils election held on 25-9-1979. They were all candidates of two members constituency of Electoral Unit No. 37 of Municipal Corporation, Faisalabad. Muhammad Tufail Ansari and the petitioner were declared elected after the polling. Ghulam Qadir, respondent No2, one of the defeated candidates, filed an election petition under section 24 of the Punjab Local Government Ordinance (herein--after to be referred as "the Ordinance"), challenging the election of the returned candidatesIn the case of the petitioner, it was alleged that he was not qualified to contest the election from Electoral Unit No. 37 as he was a resident of Electoral Unit No. 12, and that his name as voter was entered at Serial No. 3846 in the electoral roll of the said electoral Unit, but a few days before the xlection he got his vote illegally transferred from the electoral roll of Electoral Unit No. 12 to that of Electoral Unit No. 37. It was also alleged that he had persuaded the voters belonging to his case to vote for him and that he had also procured the assistance of Deputy Superintendent of Police, Faisalabad City, who belonged to his case, in securing votes. The allegations against the other returned candidate, Muhammad Tufail, were that he had contested election by giving out himself as an official candidate of Pakistan People's Party and had used the slogan of "Awam Dost" in order to obtain votes from the voters.
2. The petitioner and Muhammad Tufail both contested the election petition A number of issues were framed by the Election Tribunal for the disposal of the election petition, but the relevant issue for the present case was "whether the petitioner lacked necessary qualification to be eligible to contest election from electoral unit No. 37". The evidence produced by the parties showed that the petitioner had submitted an application on 30-8-1979 to the Registration Officer, Faisalabad, for the transfer of his vote listed at Serial No. 3846 in the electoral roll of Electoral Unit No. 12 to the electoral roll of Electoral Unit No. 37 as his house was situated in electoral unit No. 37 and that his vote bad been wrongly shown in the electoral roll of Electoral Unit No. 12. Petitioner's application was allowed by the Registration Officer on the basis of the Assistant Registration Officer's report that the petitioner's house was situated in Street No. 6, which formed part of Electoral Unit No. 37. Mr. Javed Hafeez, Election Officer, who had sub--mitted the aforementioned report to the Registration Officer, when examined as a witness before the Election Tribunal, however, stated that the report had been made by him without seeing the petitioner's house. He also disclosed that the petitioner's house was in fact situated in Electoral Unit No. 12. It was also brought on the record that the petitioner's three sons, who lived with him in the same house, had not got their votes transferred from Electoral Unit No. 12 and that they had cast their votes in the election pertaining to Ward No. 12.
3. After considering the parties' evidence and their respective conten--tions, the Election Tribunal came to the conclusion that the transfer of the petitioner's vote from the electoral roll of Electoral Unit No. 12 to that of Electoral Unit No. 37 was illegal as he did not own any property in electoral unit No. 37. The petitioner was, therefore, not qualified to contest election from Electoral Unit No. 37. The Election Tribunal did not accept the petitioner's contention that it had no jurisdiction to go behind the entries in the electoral roll in view of the provisions of section 29 of the Electoral Rolls Act, 1974.
Petitioner's election was, accordingly, set aside by the Election Tribunal vide order dated 25-6-1980, and Ghulam Qadir, respondent No. 2, who had polled the next highest votes was declared duly elected.
4. The petitioner has challenged the aforementioned order of the Election Tribunal in the present writ petition. He has contended that the Election Tribunal has acted without jurisdiction inasmuch as it has only limited jurisdiction under rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, to declare the election of a returned candidate as void only if it is found that he was disqualified from being elected as a member on the nomination date. According to the petitioner he was duly qualified to be elected as a member of a local council under section 20 of the Ordinance, as his name appeared in the electoral roll of Electoral Unit No. 37 on the nomina-- petition date It has been further contended that the Election Tribunal is not a Court of competent jurisdiction and, as such, it could not go behind the order of the Registration Officer whereby the petitioner's vote was transferred from electoral roll of electoral unit No. 12 to that of Electoral Unit No. 37, as the Registration Officer was legally competent to make such order under the provisions of the Electoral Rolls Act, 1974. The petitioner has further pleaded that the jurisdiction of the Election Tribunal extends only to the determination of election disputes and according to the well- established principle of law, it has no jurisdiction to examine questions like registration of names of voters in the electoral roll and delimitation of electoral area etc. As these matters do not fall within the category of election disputes. The petitioner has also assailed the order of the Election Tribunal on the ground that it has acted as an appellate Court and has illegally set aside the order of the Registration Officer dated 3-9-1979 without impleading him as party. The petitioner has further contended that respondent No. 2 was estopped from raising the objection regarding the alleged disqualification of the petitioner before the Election Tribunal as he had raised no such objection at the time of filing of the nomination papers by the petitioner nor he had questioned the acceptance of his nomination papers before any authority in appeal. The petitioner has challenged the finding of the Election Tribunal that he does not own any property in electoral unit No. 37, on the ground that the Election Tribunal has misread the evidence on the record and has failed to take notice of the petitioner's own statement that he owns property in Electoral Unit No. 37, and the admission made by respondent No. 2 that the petitioner had been elected as Chairman twice from the same area from which he has been elected as member of the Municipal Corporation. Relying on the proviso to section 19 of the Ordinance, the petitioner has contended that he was qualified to be elected as member from Electoral Unit No. 37 even if it be assumed that his vote could not be legally transferred from Electoral Unit No. 12 because there was no legal bar against a person being enrolled more than once on the electoral rolls of more than one electoral unit and since he had exercised his right of vote in one electoral unit only, be had acted in accordance with law as contained in the aforemen--tioned proviso. In the end, the petitioner has attacked the order of the Election Tribunal whereby respondent No. 2 has been declared as elected member because the votes polled by the petitioner could not be considered as thrown away as he did not suffer from any disqualification, which could be considered as notorious. Respondent No. 2 could be declared as elected member only if it had been shown that the petitioner's disqualification was founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electorates voting for the petitioner.
5. .Ghulam Qadir, respondent No. 2, has contested the writ petition. He has filed written statement controverting the various allegations made by the petitioner. He has pleaded that the Election Tribunal has acted !n accordance with law as under rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, the Election Tribunal had jurisdiction to declare the election of a returned candidate as void on being satisfied that the nomi--nation of the returned candidate was invalid or that the returned candidate was not on the nomination day qualified for, or was disqualified for being elected as a member. The petitioner lacked necessary qualification for being elected as a member from Electoral Unit No. 37 because he had been enrolled as a voter on the electoral roll of Electoral Unit No. 12 and had got his vote illegally transferred to the electoral roll of Electoral Unit No.
37. According to respondent No. 2 the petitioner has not come to the Court with clean hands and, as such, is not entitled to any discretionary relief, because his residential house is situated in Electoral Unit No.. 12 where he resides along with his three sons. The order of the Registration Officer transferring the petitioner's vote from the electoral roll of Electoral Unit No. 12 to that of Electoral Unit No. 37 was based on incorrect information as admitted by Mr. Javed Hafeez Election Officer before the Election Tribunal. Even otherwise, the said order was illegal as it was obtained from the Revising Authority who had no jurisdiction to order inclusion of the petitioner's vote in the electoral roll of electoral Unit No. 37.
6. We have heard the argumentents of the learned counsel for the parties only on two legal issues requiring determination in the present case. These 'legal questions are whether respondent No. .1 had jurisdiction to examine the legality or otherwise of the order of transfer of petitioner's vote from the electoral roll of Electoral Unit No. 12 to that of electoral unit No. 37, and whether respondent No. 2 could be declared as elected member by the Election Tribunal after it bad set aside the petitioner's election. Although it has been alleged by the petitioner that he also owns property in Electoral Unit No. 37, yet no attempt has been made to assail the impugned order on merits. We would, therefore, only consider the aforementioned legal issues in this case.
7. Learned counsel for the petitioner has referred to the Electoral Rolls Act, 1974 ;hereinafter to be referred as "the Act"), which provides for the preparation and revision of electoral rolls for elections to the National Assembly and Provincial Assemblies and for matters connected therewith and incidental thereto. Electoral rolls prepared under the said Act have been adopted as electoral rolls for election to the local councils under section 18 of the Ordinance. Section 6 of the Act deals with prepara--petition of preliminary electoral rolls etc. And in subsection (2) it is provided that a person shall be entitled to be enrolled as a voter in an electoral area if he besides having necessary qualification, as enumerated in clauses (a), (b) and (c), is deemed under section 7 to be resident in that electoral area. Section 7 of the Act gives the meanings of residence as used in clause (d) of subsection (2) of section 6. After the preparation of preliminary electoral rolls, the same are published together with a notice inviting claims and objections and applications for correction, if any, under section 8. According to section 10, claims and objections are to be made to the revising authority appointed by the Chief Election Commissioner under section 9 of the Act within a period of 21 days next following the date of the publication of the preliminary electoral rolls.
Section II specifically deals with the transfer of name of a person from one electoral area to another: Section 14(l) provides for holding of a summary enquiry into the claims objections by the revising authority, after giving notice to the parties/concerned. Sub--section (2) of section 14 gives finality to the decision of the revising authority which on being communicated to the appropriate Registration Officer is to be implemented by him under section 15 of the Act. Section 16 provides for the final publication of the electoral rolls by the Registration Officer for each electoral area.
Provision for annual revision of electoral rolls has been made in section 17 while section 18 deals with the procedure for enrolment and correction at a time other than annual revision. Section 27 empowers the Chief Election Commissioner to include a name in an electoral roll. Section 29 of the Act lays down that no Court can question the validity of the electoral rolls prepared or revised under the Act or the legality or propriety of any proceedings or action taken thereunder by or under the authority of the Chief Election Commissioner or Registration Officer.
8. It has been contended on behalf of the petitioner that the aforemen--tioned provisions of the Act clearly indicate that all maters pertaining to the preparation, rkvision or correction of electoral rolls are to be dealt with under the' Act and the validity of any electoral roll prepared or revised nnder the Act cannot be questioned before any Court. The petitioner in the present case had moved the appropriate authority, namely, the Registra, petition Officer (vide application copy Annex. `B') for transfer of his name from the electoral roll of electoral unit No. 12 to that of Electoral Unit No. 37 under section 11 of the Act and the Registration Officer after obtaining report from the Assistant Registration Officer had ordered the deletion of the petitioner's name from Serial No. 3846 of Electoral roll of electoral Unit No. 12 for being incorporated in the electoral roll of Electoral Unit No. 37 vide order dated 3-9-1979. The above order was not open to question before any Court including the Election Tribunal in view of the provisions of section 29 of the Act. Learned counsel for the petitioner has pointed out that the view taken by the Election Tribunal that section 29 of the Act only ousts the jurisdiction of a Court and not. That of an Election Tribunal, which is not a Court is not tenable because the Election Tribunal has limited jurisdiction as conferred on it by law as against a Court which possesses jurisdiction to determine all questions of civil nature, except those which are specifically excluded from its jurisdiction. According to the learned counsel for the petitioner, the Election Tribunal has jurisdiction to declare the election of a returned candidate to be void only on the grounds specified in rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, and where the returned candidate was qualified for and did not suffer from any statutory disqualification as enumerated in section 21 of the Ordinance, from being elected as a member, it has no jurisdiction to declare the election of such returned candidate to be void. An Election Tribunal being a forum of limited jurisdiction, is not competent to examine the question whether a person has been validly enrolled on the electoral roll as a voter. The impugned order is, therefore, a nullity and has no legal existence. In this connection, reference has been made to the following observations made by the Supreme Court in Raunaq Al v. Chief Settlement Commissioner (PLD 1973 SC 236 "It is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action `beyond the sphere allotted to the tribunal by law, and therefore outside the area within which the law recognizes the privilage to err`, then such action amounts to a 'usurpation of power unwarranted by law' and such an act is a nullity ; that is to say "the result of a purported exercise of authority which has no legal effect whatsoever"
Learned counsel for the petitioner has drawn our attention to section 20 of the Ordinance which runs as under :- "S. 20. Qualification of candidates and members.-Any person who has attained the age of twenty- five years on the last 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 that electoral unit."
It has been pointed out that the petitioner's name appeared on the electoral roll of electoral unit No. 37 on ,the date of filing of the nomination papers and, as such, he fulfilled the requisite qualification of being qualified to be a candidate for election to electoral unit 'No. 37. The Election Tribunal was not legally competent to examine the legality or otherwise of the entry regarding petitioner's name in the electoral roll, because the entries in the electoral rolls were final and could not be looked into in view of the provisions of section 29 of the Act.
9. As regards the finality of the electoral rolls, learned counsel for the petitioner has referred to the decisions of foreign jurisdiction. In Election Petition No. XI pertaining to Anglo-Indian Constituency (U. P.) 1937 (U. P. Legislative Assembly) filed by H. H. J. Mills and others against H. G. Walford, it was held that the electoral roll was binding and conclusive on the returning officer as well as the tribunal.
Pembroke Borough's case (50 M & H 135where the question for consideration was whether the free holders for the Haverfordwest, whose names appeared on the list of preliminary votes for the Pembroke Borough, were entitled to vote for the new Borough of Pembroke and Haverfordwest.
Although by the decision of the Queen's Bench Division they bad no right to vote, yet it was held that as long as their names appeared on the register of votes, they were entitled to vote. Relying on the decision in Stowe v. Jallffe (9 L R C 734) it was observed that the entries in the register of votes and even the list of names forming part of the said register were conclusive not merely on the Returning Officer at the election but also on the election Courts holding scrutiny except only in cases of persons prohibited from voting by any statute or by the common law of Parliament.
10. Learned counsel for the petitioner has cited the case of Syed Aminud Din v. Election Commission, Chittagong and others (PLD 1968 SC 235) which, according to him, is on all fours with the present case. In that case too, the returned candidate had got his name registered as a voter in the unit from which he was elected by filing an appeal to the revising authority after his application for such registration was rejected by the Registration Officer. After the election, the defeated candidate had challenged the validity of election on the ground that the successful candidate was not entitled to be enrolled as voter in Unit No. 5. The Election Tribunal upheld the objection raised by the defeated candidate and set aside the election of the returned candidate on the ground that he was not a resident within the meaning of section 10 of the Electoral College Act, 1964, in unit No. 5 and, as such, he could not be a voter or a candidate from the said unit. He also declared the defeated candidate as duly elected candidate from unit No. 5. The order of the Election Tribunal was successfully challenged before the High Court by the returned candidate.
Special leave to appeal was granted by the Supreme Court to consider whether the High Court was right in holding that an entry in the electoral roll prepared under the Electoral College Act was final, not only against the power of the Polling Officer or a Returning Officer, but also against the jurisdiction of the Election Tribunal to decide whether the person concerned was entitled on the ground of residence to have his name entered in the electoral roll of a particular unit. After examining the relevant provision of law, it was observed :- "The only conclusion therefore which can be arrived at from the general scheme of procedure as to preparation of the electoral roll is that if a person is entered in the electoral roll in contravention of the provisions of the Act and the rules, the only remedy to the persons. Objecting to the same is by way of objection under the rule and that if the said remedy is not availed of the electoral roll becomes final and conclusive as to his qualification and the Election Tribunal is therefore precluded from enquiring into the question of his possessing necessary qualifications as a voter.
The electoral roll as revised by the Revising Authority would therefore, be binding on the Tribunal except as regards statutory disqualifications. In other words, if a person's name is entered in the electoral roll maintained under the law and if he is not under any statutory disqualification he becomes ipso facto qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualifications."
Reliance was also placed on the following passage from the judgment in the case of Imtiaz A.I v.
Ghulam Muhammad Butt (PLD 1958 SC (Pak.) 228 "This view is based upon a settled principle of election law that Election Commissions cannot go behind the final electoral rolls as amended in accordance with the final orders of the revising authority. It is settled that every person whose name is entered in the electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualification. A reference may here be made to the case of Stove v. Joliffe, where it was held that the register of voters is conclusive on a Returning Officer, as well as on any tribunal which is to enquire into the election unless there be some personal disqualification. In the Pembroke Borough's case, it was held that the register is conclusive and the people whose names are mentioned on it are presumed to have the necessary qualifications : 'it may be that their names ought not to have been there, but they were there at the time of the election.' It was declared also that the policy of the law is to make it necessary to raise all questions as to rights to vote before the Registering and Revising Authorities, and this has been donq by preventing any such question from being raised at any other time, or in any other manner. These views have been approved in reported cases of elections to Legislative. Assemblies in India as well."
11. Learned counsel for the petitioner has argued that although the case of Syed Aminud Din Chaudhry was decided under the Electoral College Act, 1964, the powers of Election Tribunal under the said Act read with rule 36(1) (A) made thereunder were wider than the powers given to the Election Tribunal under rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979. These powers were comparable with those given to the Election Tribunal under rule 59 of the Basic Democracies Election Rules, 1959, and section 72 of the National and Provincial Assemblies Act, 1964, which according to the decision of this Court in the case of Karam Dad Khan v. Muhammad Yaqoob etc. (PLD 1965 Lah. 622 ) were wider than those given in the said rule 59 and the said section 72.
12. Learned counsel for the contestant respondent has met the arguments of the learned counsel for the petitioner in two ways. He has contended that the order dated 3-9-1979 passed by the Registration Officer was illegal and without jurisdiction and, as such, implementation of the said order was also a nullity. The Election Tribunal, therefore, had acted wholly within its jurisdiction in holding the entry made in pursuance of the illegal and void order of the Registration Officer as of no legal effect. The learned counsel for the respondent has pointed out that after the issuance of notification by the Election Authority in pursuance of sub-rule (1) of rule 12 of Punjab Local Councils (Election Petitions) Rules, 1979, calling upon voters of the electoral units in the various Local Councils in the Punjab to elect a member or members from each electoral unit, which was published in the official Gazette on 1-9-1979, no revision or correction of any electoral roll for an electoral aria could be made in view of the provisions of section 20 of the Act and since the entry regarding inclusion of the name of the petitioner in the electoral roll of electoral unit No. 37 was ordered after 1-9-1979, it was clearly in violation of the provisions of section 20.
13. Learned counsel for the. Respondent has further submitted that the power conferred on the Registration Officer to transfer the name of a voter _ from the electoral roll of one electoral area to the electoral roll of another electoral area under section 11 of the Act, could not be availed of by.
The petitioner because he had applied for the transfer of his vote registered at Serial No. 3846 in the electoral roll of Electoral Unit No. 12 to that of electoral unit No. 37. The term "electoral area" used in section I1 of the Act is totally different, in view of its definition as contained in section 2(2) of the Act, from the term "electoral unit" used in the Ordinance. The fact that the electoral rolls, which were prepared under the Act for the election to Provincial Assemblies and National Assembly, were adopted for the election to the local councils by section 18 of the Ordinance, did not confer any power on the Registration Officer under the Act to revise or make corrections to the electoral rolls for the purpose of election to the local councils.
14. The second argument advanced by the learned counsel for the respondent in support of the impugned order of the Election Tribunal is that the entries in an electoral roll are not sacrosanet and the Election Tribunal is not debarred from scrutinizing these entries for determining the question of eligibility of a person to be a candidate for the election.
15. Learned counsel for respondent No. 2 has referred to section 20 of the Ordinance and has submitted that there are two qualifications which a person should possess for being a candidate for election to an electoral unit of a local council inasmuch as he must have attained the age of 25 years on the last day fixed for filing the nomination papers and further that his name should appear on the electoral roll of that electoral unit. According to the learned counsel for respondent No. 2, Election Tribunal is competent to determine the question whether the returned candidate was on the nomination day qualified or was disqualified from being elected as a member to the local council in view of the provisions of rule 13 of the Punjab Local Councils (Election Petitions)
Rules, 1979. Thus, the finality attached to an electoral roll by section. 29 of the Act is subject to the authority available to an Election Tribunal to examine its entries in so far as they deal with the qualification or disqualification of the returned candidate under the Punjab Local Councils (Election Petitions) Rules, 1979. Entries in the electoral roll are binding only on the Returning Officer. The Election Tribunal is competent to go behind these entries while deciding an election petition. In this connection, be has referred to the following observation made by the Commissioners while deciding Election Petition No. XXXI pertaining to Bengal Legislative Assembly Constituency 1944 (Bengal Legislative Council) filed by Nawab Sir K. G. M. Farooqi against Habibullah Bahar Chaudhry and others :- "The powers and duties of an election tribunal to look into the question of the proper qualifications of a candidate is laid down in Part III, Corrupt Practices Order, 1936. Under clause 7(c) "if in the opinion of the Commissioners . . . The result of the election has been materially affected by . . . .
Reason of the fact that any person nominated was not qualified or was disqualified for election of the returned candidate shall be void." it is clear in our opinion from the express and positive wording of this clause that it is not intended that the powers of an election tribunal in investigating a question of want of qualification of a candidate not amounting to a statutory disqualification are to be restricted in the same way as those of a returning officer in not being allowed to look behind the entry on the electoral roll."
Referring to the decision in the Election Petition No. CIV pertaining to Rajshahi-cum-Maldah Muhammadan Constituency, 1937, relied upon by the learned counsel for the petitioner, the Commissioners observed :- "We are aware that in one case (Rajshahi-cu,n-Maldah (M) 11937), decided by an election tribunal in Calcutta the tribunal dealt with the case on the footing that an entry of a candidate's name on the (electoral) roll was conclusive proof that he was lawfully qualified. Respondent No. 1 relied on that decision.
It does not appear however that any detailed argument on this point was addressed to the tribunal in that case. Moreover there it was stated that in a large number of cases, both Indian and English, it had been held that the electoral roll as finally published was binding on the Election Commissioners except where there were statutory disqualifications. It would seem to have been assumed from the authority ,of these cases that it would only be following settled principles of law as applied in the U. K. To hold that the tribunal was bound by the electoral roll where it was a question of qualification of a candidate as much as where it was a question of the qualification of the voter. The position as we understand it differs in the two different cases. It may well be the case that both the returning officer and the tribunal are debarred from cutting out of the count a vote of a 'voter on the roll for any allegation of want of qualification. But when the matter is one concerning the qualification of a candidate, the position in the U. K., it seems clear, is that whereas the officer scrutinizing the nominations is debarred from going into a question regarding the qualifications of a candidate, this question is open to be gone into by an election tribunal (Rogers, 20th Edn., Vol. II, p. 63), where it is put thus-"He (returning officer) has no jurisdiction to determine such a question as the qualification of a candidate, which can only be determined by an election petition." The conclusion we have arrived at that it is open to the tribunal to go into the question of actual qualification of the candidate, without treating the entry of his name on the roll as conclusive proof of the possession by him of the requisite qualifications, would appear to us fully in consonance with and not in any respect at variance with the legal position in the U. K.; and in no sense contrary to the general principle of the cases relied on though not individually cited in the previous case."
16. Learned counsel for respondent No. 2 has contended that from the evidence produced before the Election Tribunal it is clearly established that the petitioner was not entitled to have his vote transferred from the electoral roll of Electoral Unit No. 12 to that of Electoral Unit No. 37. Respondent No. 2 bad no notice of the application made by the petitioner for the transfer of his vote to the electoral roll of Electoral Unit No. 37 and, as such, it was not possible for him to oppose the said application. Respondent No. 2 could not challenge the aforementioned illegal transfer of the petitioner's vote before the election authority under section 17 of the Ordinance as it related to the disqualification of the petitioner which matter could be agitated only after the election through an election petition. Since the petitioner also did not suffer from any of the disqualifications enumerated in section 21 of the Ordinance, respondent No. 2 could not move the Government under section 29 of the Ordinance for his removal from the membership. The only remedy available to respondent No. 2 against the petitioner was by challenging his election before the Election Tribunal which, under the circumstances, was the only competent forum to examine the question of petitioner's disqualification for being elected to the local council.
Ponnuswa mi v. The Returning Ofcer, Namakkal Constituency and others (AIR 1952 S C64wherein it was held:-- "Any matter which had the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an inter--mediate stage before any Court."
17. Learned counsel for respondent No. 2 has cited some cases in support of his contention that the Election Tribunal is not debarred from going behind the entries in the electoral roll when the examination of such entries is necessary to determine the qualification or disqualification of the returned candidate. In Rashid Ahmad Rehmani v. Mirza Barkat A.I (PL D 1968 SC 301the name of the returned candidate Mirza Barkat A.I was included in the electoral roll of Unit No. 498 on 3-10.1964 on which date the Provincial Government bad issued a notification calling upon the electoral units to elect from each electoral unit a person to the Electoral College. The election of the returned candidate was challenged before the Election Tribunal on the ground that his name had been included in the electoral roll after the electoral unit had been called upon to elect its representative, which was clearly in violation of sub-rule (3) of rule 22 of the Electoral College Rules, 1964. The Election Tribunal accepted the election petition and set aside the election of the returned candidate. The order of the Election Tribunal was successfully challenged in the High Court by filing a writ petition. One of the questions which came up for consideration before the Supreme Court in the above case was whether the Election Tribunal was competent to go into the question of correctness or otherwise of the electoral roll. It was observed :-- "We are alive to the fact that this complaint did not relate to anything done at the polling but was due to official actions antecedent to the polling. Normally, a Tribunal cannot. Enter into such questions because the electoral roll is conclusive on a Tribunal unless there be some personal disqualification. It is, however, not necessary to enter into the question whether inclusion of the name of Mirza Barkat A.I in violation of sub-rule (3) of rule 22 could be disregarded as a personal disqualification and whether it was a case of improper acceptance of the nomination paper. It will suffice to say that this is one of the extreme cases where the Tribunal, for justice and fairplay and in public interest, has set aside the election because the Registration Officer in violation of his statutory duty amended the final electoral roll and the authorities concerned declined to exercise their jurisdiction in the matter. In these circumstances, the Tribunal was justified to act 'in aid of justice and to give relief to the appellant. To hold that though the voter has a right to claim that the Registration Office] should perform his statutory duty, yet he has no remedy in the situation that has arisen, would amount to denial of statutory right to him. Such a proposition cannot be accepted.".
Imtiaz A.I's case was distinguished on the ground that in the case under consideration the Registration Officer had committed illegality and not merely an irregularity because he had included the name of the returned candidate in the electoral roll in clear disregard of the mandatory provision of sub--rule (3) of rule 22 of the Electoral College Rules, 1964.
18. The other case on which reliance has been placed by the learned counsel for respondent No. 2 is Serajul Islam Khan v. Ahsan All Mondal and others (PLD1969SCSIn that case, also it was held that the Election Tribunal was not debarred from examining the entries in the electoral roll while determining the question whether the returned candidate was qualified for being elected or not.
The view taken in Syed Aminuddin Chaudhry's case was also considered and explained in the above case.
19. The next case referred to by the learned counsel for respondent No. 2 is Shahidullah Kazi v. The Additional Deputy Commissioner and others (PLD 1969 Dacca 868It was a Full Bench case and the view taken by the majority was that the Election Tribunal was competent to consider and decide whether returned candidate was qualified to be elected as the elector. It was held that proviso (iii) to subsection (3) of section 23 of the Electoral College Act, 1964, prohibiting inquiry into the correctness of the entry in the electoral roll applied only to the Returning Officer and that it could not be extended to the Tribunal.
20. Reliance has also been placed on Rlaz Mahmood Khan Mazari v. Murid Hussain and others (.1980 SC M ,R 548) in which the question of validity of entries in the electoral roll was considered and it was held that for determining eligibility of a candidate to stand for election to a local council the age of the candidate as shown in the electoral roll could not be accepted as final and that the exact age of the candidate could be considered in view of the relevant facts and circumstances having a bearing thereon and could not be decided on the basis that the relevant entry in the electoral roll was final one way or the other.
21. We have carefully considered the legal issue raised before us as to whether Election Tribunal, respondent No. 1, had jurisdiction to examine the validity or otherwise of the entry pertaining to the petitioner's name in the electoral roll of electoral Unit No. 37 while dealing with the election petition submitted by respondent No. 2 challenging the petitioner's election to Electoral Unit No. 37. We have noticed that section 18 of the Ordinance makes provision for adopting the electoral rolls prepared for the election of members of the Provincial Assembly as the electoral rolls for election to a local council. Section 18 runs as follows :-- "18. Electoral rolls prepared for the election of members of Provincial Assembly as amended from time to time and adopted for a local council shall be the electoral rolls for election to local councils Provided that an electoral roll shall not be invalid by reason of any erroneous description in the electoral roll of any person enrolled or registered thereon or of omission of the name of any person entitled to be so enrolled or registered or of inclusion of the name of any person not so entitled."
Electoral rolls for the election of members of Provincial Assembly were prepared under the Electoral Rolls Act, 1974. Under section 6 of the Act existing electoral rolls were revised in respect of each electoral area. The term "electoral area" used in section 6 has been defined in section 2(2) of the Act in the following terms :- "(2) "electoral area" means-
(a) in rural areas, a village ; and
(b) in urban areas,
(1) where there is a municipal ward, such ward ;
(ii) where there is no municipal ward, a well-defined mohallah or a street, and
(iii) where the ward, mohallah or street is too big, a well-defined par l thereof ; or
(c) such other areas as may be determined by the Commissioner."
It may be seen that while making provision for the adoption of electoral rolls prepared for the election of members of Provincial Assembly the framer: of the Ordinance failed to take notice of the fact that the electoral roll; under the Act had been prepared for each electoral area which in certain cases was not synonymous with an electoral unit as defined in section 3(1)(xi) and determined by the Election Authority under section 14 of the Ordinance The framers of the Ordinance did not realise that the enrolment on the electoral roll and its correction was a continuous process in view of the provisions of section 18 of the Act and unless a provision analogous to section 20 of the Act was made in the Ordinance or the election rules framed thereunder, revision or correction of electoral roll prepared under the Act could continue even after the Election Authority had issued notification calling upon, the voters to elect member from the electoral unit under rule 12 of the Punjab Local Government Election (Petitions) Rules, 1979. The result was that the finality attached to the entries in the electoral roll under the Act and rules framed thereunder was not available for the purposes o1 election under the Ordinance as the said finality depended on the existence of provision analogous to section 20 of the Act. In view of this legal position, the inclusion of the petitioner's name in the electoral roll of electoral Unit No. 37 after the issuance of notification by the Election Authority under rule 12 of the Punjab Local Government Election (Petitions) Rules, 1979, cannot be challenged on the ground that it vlolated the provision of section 20 of the Act because the said provisions were not applicable when the voters of an electoral unit had been called to elect member to a local council under the Ordinance. The validity of the transfer of the name of the petitioner from the electoral roll of electoral Unit No. 12 to that of electoral Unit No. 37, however, is open to question on the ground that the Registration Officer, who ordered the deletion of the petitioner's name from electoral roll of electoral Unit No. 12 for inclusion in the electoral roll of electoral Unit No. 37, had no jurisdiction to pass such order, as section 11 of the Act under which the Registration Officer had acted, did not contemplate transfer of name from the electoral roll of one electoral unit to the electoral roll of another electoral unit. Under that section the Registration Officer was empowered to transfer the name of a voter from the electoral roll of one electoral area to the electoral roll of another. Thus, order dated 3-9-1979 passed by the Registration Officer whereby the petitioner's name was transferred from the electoral roll of electoral unit No. 12 to the electoral roll of electoral Unit No. 37 was illegal as being without jurisdiction.
22. The next question which requires determination in this case--whether respondent No. 1 was legally competent to examine the validity o the entry regarding petitioner's name in the electoral roll of electoral Unit No. 37 while dealing with the election petition filed by respondent No.2 challenging the petitioner's election. The concept of finality regarding entrie in the electoral roll has two aspects. . Firstly, the registration of the name of a person in the electoral roll confers on him the right to vote and, secondly it also provides qualification for a person of being a candidate at the election. In so far as the first aspect is concerned there is no dispute that the ---entries in the electoral roll are final and cannot be disputed before the Election Tribunal. This view is supported by the decisions in the case of Stowe v. Jolle and the Pembroke Borough's case referred to above by the learned counsel for the petitioner. But where the entry in the electoral roll also confers qualification on a person for being a candidate at the election, the Election Tribunal would be competent to examine the correctness or otherwise of the said entry while dealing with election petition challenging the election of the returned candidate. In cases where the entry in the electoral roll by itself is not sufficient to make a person eligible for being a candidate at the election and he is required to possess some qualifications different from those possessed by the voter, there would be hardly any dispute as to the competence of the Election Tribunal to determine whether the returned candidate possesses such qualifications or not. In the present case section 19 of the Ordinance deals with the right of vote. It reads :- "19. Every person enrolled as a voter on the electoral roll shall have the right of vote:-- Provided that if a person is enrolled more than once in the electoral roll of the same electoral unit or on the electoral rolls of more than one electoral units he shall be eligible to vote in one electoral unit only."
Section 20 of the Ordinance gives qualifications of candidates and members. It provides as under :- "20. Any person who has attained the age of twenty-five years on the last 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 that electoral unit."
It may be noticed that the enrolment of a person as a voter on An electoral roll gives him the right of vote. For being qualified to be a candidate for election, he must show that he has attained the age of 25 years on the last day fixed for filing the nomination papers and that his name appears validly on the electoral roll of the electoral unit from which he seeks election. When the election of a returned candidate is challenged before the Election Tribunal on the ground that he was not on the nomination day qualified or was disqualified from being elected as a member under rule 13 of the, Punjab Local Councils (Election Petitions) Rules, 1979, the Election Tribunal is legally competent to determine whether the returned candidate possessed the requisite qualifications, namely, that he bad attained the age of 25 years on the last day fixed for filing the nomination papers and that his name appeared on the electoral roll of that electoral unit from which he sought his election. These qualifications are different from ..The qualification of a person entitled to vote, as in the latter case, the Election Tribunal will accept the entry of the name of a person in the electoral roll as sufficient to entitle: him to exercise his right of vote but where the election of a returned candidate is challenged on the ground that he was not qualified for being a candidate, the Election Tribunal will .Have to hold an inquiry and examine the correctness or otherwise of the entries in the electoral roll.
This legal position has been noticed by the Supreme Court in Serajul Islam Khan's case as under :- "On a close scrutiny of the provisions of Act and the rules regarding preparation and publication of the electoral roll we are led to the conclusion that the object is to show that the persons whose names appear in the electoral roll of a particular electoral unit are entitled to vote at an election of that unit. The right of any such person to vote cannot be questioned as entries in the final electoral roll have been made after elaborate inquiry and taking into account objections and claims for the said purpose. So far as candidature for election to the Electoral College is concerned, Article 158 of the Constitution says that a person in order to be a candidate from a particular unit must not only be a voter of that unit but also must not be below twenty-five years of age. This article, therefore, lays down two qualifications for a candidate. He is to be a voter of the unit from which he seeks election and must not be less than twenty-five years of age. The entries in the electoral roll are final so far as the first qualification is concerned. The roll is prepared .In order to show who are the persons entitled to vote and the entries in the same are final and cannot be questioned so far as this right goes. 1n regard to the second qualification though in Form-111 under the head 'age' the actual age of the voter is recorded, this entry cannot be said to be final. Ascertainment .Of the actual age of the voter is not a necessity for the purpose of the preparation of the roll. It is enough if it is found that the person concerned is not less than twenty-one years of age. Moreover, it is not possible for anyone at this stage when a large number of persons are enrolled as voters to ascertain the actual age of each and everyone of them and then to object if the entry in the draft roll in this regard is wrong."
It was further noticed:- "The statutory provisions to which reference has already been made clearly point to the conclusion.
That the right to be enrolled as a voter is different from the right to be a candidate though the latter includes the former. The roll is prepared with a view to determining who are entitled to vote at an election and this is done after going through an elaborate procedure. . In this view the right of a person whose name appears on the roll to vote cannot be questioned, This dolls not, however, mean that his right to be a candidate cannot be challenged on the ground that he does not possess the other qualification in this regard. The entry in respect of the actual age cannot be placed on the same footing 3s the other entries."
23. As regards the decision in the case of Syed Amiruddin Chaudhry v. Election Tribunal, Chittagong, after referring to a passage from that judgment it was observed:- "The above observation really indicates that a person whose name appears in the electoral roll of a unit is entitled to seek election to the Electoral College from that unit and this right cannot be challenged unless he suffers from any statutory disqualification for being a candidate. The question as to the right to be enrolled as a voter cannot be raised after the final publication of the electoral roll: The stage for raising that question is over. The constitution, however, requires that the candidate must possess another qualification, namely, he must not be less than twenty-five years of age. This requirement comes into play only after a voter becomes a candidate. To require his rival to rare this question at the time of the enrolment of voters in anticipation that he may be a candidate, is to place on him a heavy burden which he will be unable to bear."
It may be noticed that the view taken in Syed Aminuddfn Chaudhry v. Election Tribunal, Chittagong was not followed by the Supreme Court in the case of Rashid Ahmad v. Barkat A.I referred to above.
On the other hand, the legal position was thus stated in the case of Umar Daraz Khan v.
Muhammad Yusuf and others (1968 SCMR 880): "In the light of the above observations, there can be no doubt that in an election petition the Tribunal is competent to enquire if the successful candidate possesses the qualification as laid down in the Constitution or not. Hence, the High Court has rightly held that the Controlling Authority was not justified in dismissing the petition on the ground that he had no jurisdiction to enter into the question whether the successful candidate possessed the age qualification or not."
24. In the case of Imtiaz A.I v. Ghulam Muhammad Butt and another (P LD 1958 SC (Pak) 278the question for determination was whether the 154 voters of village Maujo--ke-Bhet which was a part of Badhai Cbeema Zail but was wrongly included in Narowal Zail had illegally cast their votes in the constituency of Zail Narowal and Zail Jassar, it was held:- "If there was a defect in the preliminary roll by the inclusion therein of the names of voters from village Maujo-ki-Bhet, that defect should have been brought to light by the making of. a proper objection before the revising authority at the proper time. No such objection was ever made, and the electoral roll having been revised was duly published. Thereafter, no further objection could be taken to .The electoral roll and the election was to be held on the basis of that roll "
It is evident that in the aforementioned case finality of entries in the electoral roll was accepted in so far as the right of the voters to cast their votes was concerned. The question of disqualification of the returned candidate was not in issue in that case.
25. It has been contended on behalf of the petitioner that the Election Tribunal's jurisdiction to examine candidate's qualification regarding age can be justified on the ground that the minimum age provided by law for being enrolled as a voter is different from that of the candidate and since the law dealing with preparation of electoral rolls does not contain provision for making entries regarding the exact age of the voter at the time of the preparation of the electoral roll, the Election Tribunal is bound to hold an inquiry to ascertain the age of the candidate on the day of filing of nomina--petition papers so as to determine the question whether he fulfilled the qualifica-- petition regarding age at the time of filing of nomination papers. We, however, see no force in this argument because the jurisdiction of the Election Tribunal to examine the question regarding qualification of the returned candidate is not restricted to only one kind of qualification. Section 24 of the Ordinance read with rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, which are the relevant provisions in the present case do not lace any restriction on the power of the Election Tribunal as stated by the earned counsel for the petitioner. The absence of a provision in the law relating to the preparation of electoral rolls for making entry of the exact age of the voter in the electoral roll may be one of the reasons for holding inquiry by the Election Tribunal to determine the age of the returned candidate on the day of filing of nomination papers but the entries in the electoral roll affecting the qualification of a person for being a candidate at the election would be open for scrutiny in the same manner as determining the question of the age of the candidate.
Residence within an electoral area is one of the qualifications provided by the Act for being enrolled on the electoral roll and although the Act contains provision under which entries in the electoral roll can be challenged before the Revising Authority or the Registration Officer as the case may be, yet these entries can also be ques--tioned before the Election Tribunal if they deal with the qualification of being a candidate at the election because in that case it may be made a ground for challenging the election before the Election Tribunal. In the present case the petitioner had got his vote transferred from one electoral unit to another electoral unit on the ground that he was residing in the said electoral unit. It has been seen that the electoral rolls under the Act were prepared for each electoral area and not for an electoral unit. The petitioner's name was originally shown in the electoral roll of electoral unit No. 12 which on his application was transferred to the electoral roll of electoral unit No. 37, The argument that respondent No. 2 should have raised objection against the transfer of the petitioner's name to the electoral roll of electoral Unit No. 37 before the competent authority under the Act and that it was not open to him to challenge it before the Election Tribunal, does not appeal to us because the order of transfer of petitioner's name from the electoral roll of one electoral unit to that of another was without jurisdiction and there was no form under the Act in which such order could be challenged.
25. We are also not impressed by the argument advanced on behalf of the petitioner that respondent No. 2 was stopped by his conduct from questioning the validity of the transfer of the petitioner's name from the electoral roll of electoral Unit No. 12 to that of electoral Unit No. 37 because he had not raised any objection when notice was issued to the public by the Registration Officer on receipt of petitioner's application and further that he had failed to raise objection against the acceptance of petitioner's nomination papers as in our opinion respondent No. 2 was not legally bound to ,raise objection against the petitioner's application for inclusion of his name in the electoral unit of electoral Unit No. 37 and his omission to question the validity of petitioner's nomination papers on the ground of lack of qualification did not preclude him from filing the election petition against the petitioner. Petitioner's election could be challenged by him under rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, as he was not qualified for being elected as member from electoral unit No. 37 on the day of filing of the nomination papers as his case was covered by clause (b) of sub-rule (1) of rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979. We also see no force in the petitioner's contention that the transfer of his name from the electoral roll of electoral Unit No. 12 being a pre-election matter was not an election dispute and as such the Election Tribunal had no jurisdiction to deal with it because the transfer of the petitioner's name from one electoral roll to another had a direct bearing on his qualification of being a candidate at the election which in view of the provisions of clause (b) of sub-rule (1) of rule 13 of the Punjab Local Councils (Election Petitions) Rules, 1979, could be examined by the Election Tribunal.
26. In view of the legal position stated above, we have no doubt in our mind that respondent No. 1 was legally competent to examine the validity of the entry regarding the petitioner's name in the electoral roll of the electoral unit from which he was elected.
27. The petitioner has also challenged that. Part of the order of the Election Tribunal whereby respondent No. 2 has been declared elected from electoral Unit No. 37 on the ground he had polled the next highest number of votes. Learned counsel for the petitioner has contended that the petitioner did not suffer from any such disqualification at the time of election which could be regarded as notorious so that it could be said that the electors who had voted for the petitioner had thrown away their votes. The order of the Election Tribe nil declaring respondent No. 2 as elected candidate could have been under rule 14 of the Punjab Local Councils (Election Petitions)
Rules, 1979, but there was no basis for making such order by the Election Tribunal inasmuch as respondent No. 2 had neither alleged in his election petition that the petitioner's disqualification was known to the voters and yet they had cast their votes in his favour nor any evidence was adduced by him before the Election Tribunal in support of his claim for being declared elected in place of the petitioner.
28. Learned counsel for respondent No. 2, on the other hand, has argued that the petitioner's disqualification for being elected as member from electoral Unit No. 37 was too well known to the voters because the petitioner admittedly resides in the house situated in electoral Unit No. 12 where other members of his family also reside and that if despite that knowledge some voters had cast their votes in favour of the petitioner their votes had to be treated as thrown away. The order of the Election Tribunal whereby respondent No. 2 was declared as elected member was, therefore, not open to question.
29. Rule 14 of the Punjab Local Councils (Election Petitions) Rules, 1979, which deals with the issue under consideration runs as follows:- "R.
14. Ground for declaring a person other than a returned candidate elected.-The Tribunal shall declare the election of the returned candi--date to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected.'.'
The above rule is based on the legal principle judicially recognized in England as stated in the following terms in paragraph 549 of Halsbury's Laws of England, 3rd Edition, Volume 14:-- "549. Votes given to a disqualified candidate.-Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so holding a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualifica-- petition that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprison--ment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown: If, however, the disqualification is riot notorious and depends on legal argument or upon complicated facts and .Inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given to him will not be thrown away so as to give the seat to the candidate with the next- highest number of votes. For the votes given for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creating the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice from the total number of votes given for the disqualified candidate he remains in a majority, the minority candidate cannot be seated and there must be a fresh election."
30. After examining the facts of the present case we have found that respondent No. 2 had made no allegation in his election petition that petitioner's disqualification was known to the voters of electoral Unit No. 37 and yet some of them had cast their votes in favour of the petitioner. The reason given by the Election Tribunal in his order for declaring respondent No. 2 as elected member is that respondent No. 2 had polled the next highest number of votes. Rule 14 under which respondent No. 2 has been declared elected does not contemplate that the petitioner or any other contesting candidate who had polled the next highest number of votes is entitled to be declared elected on the election of the returned candidate being declared as void. As noticed above, the rule is based on the legal principle that the votes cast in favour of the returned candidate who suffered from a disqualification which was too notorious would be considered as thrown away.
Thus, respondent No. 2 had to satisfy the Election Tribunal that the petitioner's disqualification for being elected was not only within the knowledge of the voters but that they had also cast their votes in his favour despite that knowledge. The petitioner had filed nomination papers on the basis of his name appearing in the electoral roll of electoral Unit No. 37. No one including respondent No. 2 had raised any objection as to the eligibility of the petitioner of being a candidate from electoral Unit No. 37. The petitioner was found to be not qualified for being a candidate from electoral Unit No. 37 by the Election Tribunal after holding an inquiry which revealed that the petitioner's name was illegally included in the electoral roll of electoral Unit No. 37. Under these circum--stances, the petitioner could not be said to be suffering from a disqualifica--petition which was known to the electors at the time of his election because as long as the petitioner's name appeared in the electoral roll of electoral Unit No. 37, he was qualified to be a candidate from that electoral unit. An elector could not be expected to doubt the correctness of the aforemen--tioned entry in the electoral roll. The Election Tribunal was, therefore, not justified in applying the provisions of rule 14 in the present case because the votes polled in favour of the petitioner were not thrown away as he did not suffer from a disqualification which was within the knowledge of the voters.
31. In view of the above facts and considerations, we hold that the order dated 25-6-1980 passed by respondent No. 1, whereby the petitioner's election was declared as void, is lawful and not open to question but that part of the order whereby respondent No. 3 was declared as duly elected member from electoral Unit No. 37 is illegal as having been passed without lawful authority.
Consequently, the Election Authority shall notify a date for holding fresh election to the seat vacated by the petitioner in electoral Unit No. 37 as a result of order dated 25-6-1980 passed by respon. Dent No. 1. In view of partial success of the petitioner, we leave the parties to bear their own costs.