SHAH NAWAZ KHAN, J.---This appeal and appeal No. 98 of 1981 are inter. Connected and the same questions of law are involved therein, therefore, this judgment will dispose of both the appeals.
2. Appellant Ch. Muhammad Hussain and Respondent No. 2 Ch. Ghulam Qadir along with 17 others contested the Local Council's election for dual member constituency of Ward No. 37 of Municipal Corporation, Faisalabad. The election was held on 25-9-1979, under the Punjab Local Government Ordinance, 1979 (hereinafter referred to as Ordinance). In the election Ch. Muhammad Hussain appellant and one Muhammad Tufail Ansari polled the highest votes and were consequently elected from Unit No. 37.
3. Ghulam Qadir, respondent No. 2 challenged the election of the returned candidates before the Election Tribunal, Faisalabad, under section 24 of the Punjab Local Government Ordinance. It was alleged inter alia against Ch. Muhammad Hussain that he illegally got his name transferred from the Electoral Roll of Unit No. 12 to Unit No. 37, a few days before the election.
4. The electionof Muhammad Tufail Ansari was challenged on the ground that he was an official candidate of the Pakistan Peoples Party and that he was disqualified to take part in the election.
5. The Election Tribunal after hearing the parties and examining the evidence on record held that Ch. Muhammad Hussain was not entitled to be enrolled, as a voter in Electoral Unit No. 37, because he did not own any property, in that electoral unit. Further that the transfer of his vote from that electoral unit was an invalid act of the Registration Officer, and, therefore, he was not qualified to contest election from Electoral Unit No. 37. Regarding Muhammad Tufail Ansari (respondent No. 1 in Election Petition No. 29 of 1979), the Election Tribunal held that no such evidence had been brought on record to show that he contested the election on the platform of a certain political party or that he used the banner or slogan of that party for soliciting votes. His election was, therefore, held to be valid. With that view, in the background the Election Tribunal held that the election of Ch. Muhammad Hussain is void with the result that Ch. Ghulam Qadir who had secured the next highest votes was declared to be duly elected from Electoral Unit No. 37. The petitioner in the Election Petition No. 29 of 1979, as indicated above, was Ch. Ghulam Qadir who is appellant in Civil Appeal No. 98 of 1981 before us.
6. Ch. Muhammad Hussain then filed Writ Petition No. 7176 of 1980 in the Lahore High Court wherein he challenged the decision of the Election Tribunal. Ch. Ghulam Qadir and Muhammad Tufail.Ansari were impleaded as respondents in that petition besides the other candidates, who have not taken any interest in these proceedings.
The High Court, after hearing that writ petition, declared the order, dated 25-6-1980 of the Election Tribunal, whereby Ch. Muhammad Hussain's election was declared as void, to be lawful and not open to question. To that end the writ petition of Ch. Muhammad Hussain was dismissed, Regarding the second party, by which in pursuance of the dismissal of the writ petition of Ch. Muhammad Hussain, the Election Tribunal declared Ch. Ghulam Qadir respondent, who had secured the next highest votes, as duly elected member from Electoral Unit No. 37, the High Court held that it was without lawful authority hence illegal. The High Court observed that Ch. Ghulam Qadir had made no allegations in his election petition that the said disqualification of Ch. Muhammad Hussain was known to the voters of the Electoral Unit No. 37 as such rule 14 under which Ch. Ghulam Qadir was declared as elected does not contemplate that he or for that matter any other candidate who might have polled the next highest number of votes was entitled to he declared elected, in case, the election of a returned candidate was declared as void. The High Court maintained that Ch. Ghulam Qadir had to satisfy the Election Tribunal that the disqualification of Ch. Muhammad Hussain for being elected from Unit No. 37 was not only within the knowledge of the voters but that they had cast their votes in his favour despite that knowledge.
It will be appreciated that no one including Ch. Ghulam Qadir raised any objection about the eligibility of Ch. Muhammad Hussain at the time of nomination or election and that it was after the Election Tribunal held an inquiry, that it was revealed that Ch. Muhammad Hussain's name had been included in the electoral roll of Electoral Unit No. 37.
7. In Appeal No. 98 of 1981, Ch. Ghulam Qadir had assailed the above finding of the High Court. He contended that in the election under reference, according to the account Muhammad Tufail Ansari had polled 1574 votes, Ch. Muhammad Hussain (appellant in Appeal No. 97 of 1981) had polled 1168 votes and he i. e. Ch. Ghulam Qadir had polled 1155 votes. As two members were to be elected from Ward No. 37, the dual member constituency, Muhammad Tufail Ansari was declared as elected securing the highest votes. It is apparent that Ch. Ghulam Qadir does not contest the election of Muhammad Tufail Ansari and concedes that he was duly elected and this was probably the reason that Muhammad Tufail has not been impleaded as a respondent in his appeal. His attack is mainly on the impropriety of the election of Ch. Muhammad Hussain and he claims that after Ch. Muhammad Hussain is declared as disqualified, then he having secured the next highest votes should have been declared as elected.
8. Ch. Muhammad Hussain in Appeal No. 97 of 1981, has raised two important questions of law. One is, whether the entries in the electoral rolls as amended from time to time, by the functionaries under Electoral Rolls Act, 1974 (Act No. XXI of 1974) are final and have a binding effect upon the Election Tribunal exercising jurisdiction under the Punjab Local Council Ordinance, 1979, read with the Punjab Local Council (Election Petitions) Rules, 1979. The second is whether the power under section 11 of the Electoral Rolls Act, 1974, is exercisable in relation to the transfer of a vote from one electoral unit of a local council to another unit of that council. In his appeal Ch. Muhammad Hussain has impleaded Ch. Ghulam Qadir as respondent besides the Election Tribunal. No other candidate has been impleaded as a respondent which means that he also accepts the election of Muhammad Tufail Ansari, and, therefore, the sole question be determined is whether Ch. Muhammad Hussain who had contested election on the strength of the entries in the electoral roll which was amended up to the relevant date, i. e. The date of nomination, could contest election or not.
9. Leave was granted by this Court on the main consideration that the language of section 20 of the Punjab Local Government Ordinance, 1979, prescribes the qualifications of the candidates, inter alia, that, "for the time being his name appears on the electoral roll of that Electoral Unit" and all that was required to be ascertained was whether the name of Ch. Muhammad Hussain was borne on the electoral roll of Electoral Unit No. 37, and, therefore, the Election Tribunal had no legal authority to examine the question whether his name was rightly or wrongly borne on that electoral roll of Unit No. 37. No. Separate leave granting order was passed in respect of Civil Appeal No. 98 of 1981, but it was observed in the same order that, "it is only appropriate that we should also examine the questions raised in the cross C. P. S. L. A. No. 305 of 1981. Special leave is granted in this petition also." C. P. S. L. A. No. 305 of 1981 was consequently converted as Civil Appeal No. 98 of 1981.
In section 18 of the Punjab Local Government Ordinance, 1979, it is provided that "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."
10. In section 20 of the Electoral Rolls Act, 1974, it is provided that, "No revision or correction of any electoral roll for an electoral area shall be made nor shall any order under section 19 be made in respect of any electoral roll at any time after the constituency of which such electoral area forms part has been called upon to elect its representative and before such representative has been elected". However, in section 20 of the Punjab Local Government Ordinance, 1979, the requirement is that any person who has attained the age of 25 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. According to this section, the person having the qualifications specified therein shall have the absolute right to stand as a candidate. The provisions of section 20 of that Ordinance are, however, subject to the provisions of section 21 wherein the disqualifications of a candidate or a member of a local council, have been prescribed. But Ch. Muhammad Hussain does not come under any of the disqualifications mentioned in section 21. On the date when he filed his nomination papers from Electoral Unit No. 37, his name appeared on the electoral roll of that area of the local council and there is no dispute about it. There is no objec--tion about the age of Ch. Muhammad Hussain either.
11. In section 11 of the Electoral Rolls Act, 1974, it is provided that, "A person may apply for transfer of his name from the electoral roll of one electoral area to the electoral roll of another, by filing
(a) an objection to the inclusion of his name in the roll in which it has been included, and
(b) a claim for the inclusion of his name in the other. with the appropriate Revising Authority or Revising Authorities, even after the final publication of the electoral roll.
12. Ch. Muhammad Hussain appellant was originally enlisted as a voter in Ward No. 12. His name existed at Serial No. 3846. He submitted an application to the Registration Officer on 30-8-1979 for the transfer of his name from Unit No. 12 to Unit No. 37 on the ground that his house was situated in that electoral unit, but that he had been wrongly and through clerical mistake registered as a voter in electoral Unit No. 12. Faisalabad. His application was considered by the City Magistrate who was the Registration Officer of Ward No. 37. He asked for the report of the Assistant Registration Officer and after the receipt of that report, he passed the following order : "Objection of the petitioner has been verified by A. R. C. And as such his name is deleted from Serial No. 3846 from Ward No. 12 and be enlisted in Ward No. 37."
He was, accordingly, enlisted as such. So subsequently when he applied for nomination, his name was on the electoral roll of Unit No. 37 and as indicated above, there is no dispute about this fact.
When nomination papers were filed no objection was raised by any one, not even Ch. Ghulam Qadir against his nomination and he was accepted as a registered voter in Ward No. 37. The election was contested without any protest from any--body, and when the result was announced Ch. Ghulam Qadir moved the Election Tribunal and then he raised this objection.
13. According to the ruling given in Syed Aminuddin Chowdhury v. The Election Tribunal etc. PLD 1968 SC 235, decided on 8th of November, 1966, it was held by the Supreme Court that, "if a successful candidate's name has been entered in electoral roll and remained there up to the time of nomination, his right to stand as a candidate cannot be challenged save and except on the ground of statutory disqualifications. The Election Tribunal had, therefore, no jurisdiction to inquire into the question whether the name of the respondent Khurshid Alam should or should not have been in the electoral roll of Unit No. 5".
14. In a Dacca case, the High Court followed the decision of the Supreme Court and it was held that the electoral roll as revised by the Revising Authority would, therefore, be binding on the Election Tribunal. 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 (regarding age), he becomes ipso facto qualified to stand as a candidate in the election and Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualifications. We find no change in the powers of the Election Tribunal even in the Punjab Local Government Ordinance, 1979.
15. In Serajul Islam v. Ahsan Ali Mondal and others PLD 1969 SC 5, on a similar question the Supreme Court held 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.
16. The statutory provisions referred to in the above-quoted judgment PLD 1968 SC 235 point to the conclusion that the right to be enrolled as a voter is different from the right to be a candidate.
The entry in respect of actual age cannot be placed on the same footing as the other entries. The requirement of the minimum age of 25 years is a constitutional provision. It is an essential qualification for a candidate in section 20 of the Punjab Local Government Ordinance. It is clearly provided that only such person who has attained the age of 25 years on the last date fixed for filing the nomination papers shall be qualified to be a candidate for election to an electoral unit of a local council. The question before the Supreme Court in the last mentioned case was whether the Tribunal hearing an election petition was competent to enquire as to the age of the person and to set aside his election on the ground that he did not possess the requisite qualification with regard to age for contesting election to an electoral unit. In such a case, it was held that the Election Tribunal was competent to go into the question of the actual age of the candidate in respect of the entry in the electoral roll, but the question as to the right to be enrolled as a voter could not be raised after the final publication of the electoral roll. In section 20 of the Punjab Local Government Ordinance, a simple requirement is that a person shall be qualified to be a candidate for election to an electoral unit, if for the time being his name appears on the electoral roll of that electoral unit.
17. The learned counsel for Ch. Ghulam Qadir places his reliance on another authority of the Supreme Court of Pakistan, Riaz Muhammad Khan Mazari v. Mureed Hussain and others 1980 SCMR 548, but this authority is not helpful, because the question involved therein was whether any finality could be attached to the entry of age in the electoral roll for the purpose of determining the eligibility of a candidate to stand for election to a local council. In this case also the former view of the Supreme Court in the case of Serajul Islam Khan was adopted and it was held that the right of a person whose name appears on the roll to vote cannot be questioned.
18. In the light of the above discussion, the election of Ch. Muhammad Hussain could not be held to be illegal or void. He had the qualifications a envisaged in section 20 of the said Ordinance to contest election from Unit o. 37 and no objection regarding the change of his name from Unit No. 1 to Unit No. 37 was raised by any one, at any stage till after his election, when the matter was taken to the Tribunal The order of the Election Tribunal with limited jurisdiction was, therefore, patently unjust and unlawful, hence not sustainable in law.
19. In that view of the matter, the appeal of Ch. Ghulam Qadir auto--matically fails. Even otherwise, in the instant case, the voters did not have any notice that the inclusion of Ch. Muhammad Hussain's name in the final electoral roll was in violation of any rule, hence they could not be disfrenchised for no fault on their part. It was held in, Rashid Ahmad Rahmani v. Mirza Barkat Ali etc. PLD 1968 SC 301, that votes given by the voters without notice of the said disqualification of a candidate, ought to be treated as good votes.
20. The result is that Civil Appeal No. 97 of 1981 (Ch. Muhammad Hussain v. Election Tribunal etc.) is accepted and the finding of the Lahore High Court, Lahore dated 9-2-1981 and of the Election Tribunal dated 25-6-1981 are set aside. Civil Appeal No. 98 of 1981 (Ch. Ghulam Qadir v. Election Tribunal etc.) is dismissed. In the peculiar circumstances of the cases we do not make any order as to costs.