1. ' In this Constitutional Writ petition, Ch.Manzoor Ahmed, petitioner has called in question the order of the Returning Officer, Bhimber, dated 18-10-1983, rejecting his nomination paper for standing as a candidate for election as a Member of the District Council Mirpur from the electoral area Kasgummah and that of the Appellate Officer Mirpur, dated 20-10-1983 whereby his appeal against the aforesaid order of the Returning Officer was dismissed.
2. ' Briefly stated,the facts leading to the filing of the present writ petition, as alleged by the petitioner are that in the electoral roll pertaining to the electoral area of Kasgummah, Tehsil Bhimber, District Mirpur prepared for the election of the Assembly, his name was not included whereupon he applied for the entry of the same in the said electoral roll to the Registration Officer Mirpur on whose order made on 10-1-1982, his name was entered into the supplementary electoral roll prepared by the Assistant Registration Officer, Bhimber at S.No.1244. The petitioner, thereafter contested by election for the seat of the District Council Mirpur from Ward Bhimber held on 9-2- 1982 but unfortunately was not successful. The name of the petitioner was once again omitted from the revised and fresh electoral roll prepared for the aforesaid electoral area but on being approached by him was entered in the same at S.No.1664 by the concerned authority after which the petitioner filed the nomination paper as a candidate for the seat of the District Council Mirpur from the Ward of Union Council Kasgummah, Tehsil Bhimber before the Returning Officer, Bhimber but the same was rejected by him vide his order dated 18-10-1983 on the ground of his name having been deleted from the electoral roll by the Election Commissioner vide his wireless message sent to him on 16-10-1983 on account of his name having been added in the printed electoral roll by hand in contravention to the provision of section 18 of the Azad Jammu and Kashmir Local Government Ordinance, 1983 (hereinafter referred to Local Government Ordinance).
3. The petitioner filed an appeal against the above order of rejection of his nomination paper before the District and Sessions Judge Mirpur in his capacity as Appellate Officer, appointed for the purpose under the said Ordinance, which was also rejected by him vide his order dated 21-10-1983.
4. ' Feeling aggrieved by the above orders of the Returning Officer, Bhimber and his Appellate Authority, the petitioner has now approached this Court for the redress of his grievances arising out of them, by way of this writ petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
5. ' The case of the petitioner is that after his name having been entered in the electoral roll of electoral area Kasgummah by way of an amendment by the concerned Registration Officer had his having contested the election for the membership of the District Council Mirpur on the basis of such entry, his name could not be omitted from the electoral roll subsequently prepared for the election of the Local Bodies to be held on 27-10-1983, in view of the provisions of section 18 of the Local Government Ordinance. Therefore, his name was rightly added in the said electoral roll by the concerned authority which the Election Commissioner had no authority to delete with the result that the Returning Officer had acted illegally and without authority in rejecting his nomination paper on the ground of his name having been deleted by the Election Commissioner from the electoral roll.
6. ' It is the further case of petitioner that he had produced the copy of the electoral roll containing his name at S.No.1244 before the Appellate Officer in support of his claim that his name was borne on the electoral roll and as such he was qualified to contest the election and therefore, the Appellate Officer's order, dismissing the appeal of the petitioner against the rejection of his nomination, is illegal as the same has been made on the ground that the petitioner's name did not appear in the electoral roll.
7. ' The petition has been contested by the only the rival candidate for the election of the membership of the District Council Mirpur from the said Union Council, namely Raja Waleed Khan, respondent No.6, who in his written statement has taken the plea that the impugned orders are perfectly lawful in view of the fact that the petitioner's name was not borne on the electoral roll of the concerned electoral area which was in force at the time of the scrutiny of the nomination papers.
8. ' I have heard the learned counsel for the parties and have also gone through the impugned orders as well as the relevant law and rules governing the points requiring determination in this writ petition.
9. ' The learned counsel for the petitioner in his arguments has advanced the same grounds, in support of this writ petition, on the basis of which the impugned orders have been challenged in the petition itself. It has been contended by him that on the application of the petitioner, his name was added in the supplementary electoral roll prepared by the Assistant Registration Officer at S.No.1244 in persuance of the order of the Registration Officer Mirpur dated 10-1-1982 and that on the basis of the said entry, the petitioner had also contested by election, for the membership of the District Council Mirpur from the Ward Bhimber, held on 9-2-1982.
10. ' It is further contended by the learned counsel for the petitioner that under section 18 of the Local Government Ordinance which prohibited the omission of addition of any name appearing in the electoral roll from any revised or amended electoral roll prepared subsequent to it, the name of the petitioner could not be omitted from the electoral roll prepared from the purpose of the election of Local Bodies to be held on 27-10-1983 and shall be deemed to have been included in it with the result that he was qualified to contest the election as a member of the District Council Mirpur. On the basis of the above contention, it is argued that the nomination paper of the petitioner could not be rejected by reason of his name not appearing in the copy of the printed electoral roll.
11. ' It is also argued by the learned counsel for the petitioner the even otherwise, the name of the petitioner was added in the electoral roll prepared for the aforesaid election by the concerned authority at S.No. 1664 and therefore, the Returning Officer was not legally justified to reject his nomination paper merely on the ground that the Election Commissioner had informed him through wireless message that the names of the voters added at S.No.1664 and 1665 on the printed electoral roll have been deleted because the Election Commissioner had no authority to make such an order.
12. ' It was further argued by him that the order of the Appellate Officer, impugned in this writ petition, is also unlawful because it has not been correctly stated therein that the petitioner's name is not borne on the electoral roll of the concerned electoral area, in view of the fact that a copy of the supplementary electoral roll showing the name of the petitioner at S.No.1244, was produced before him.
13. ' On the other hand, it has been argued by the learned counsel for the contesting respondent that the petitioner's nomination paper was lawfully rejected by the Returning Officer and his order of rejection was rightly maintained by the Appellate Officer on an appeal by the petitioner inasmuch as the electoral roll, for the time being in force, did not contain the name of the petitioner thereby rendering him ineligible to contest the election for the membership of the District Council Mirpur.
14. ' After giving my due consideration to the arguments addressed at the bar, I am of the opinion that neither the Returning Officer nor the Appellate Officer has committed any illegality or irregularity in rejecting the nomination paper of the petitioner and dismissing his appeal filed against the said rejection, respectively.
15. ' The sole question on which the decision of this writ petition depends is as to whether or not the name of the petitioner appeared in the electoral roll of the electoral area of Kasgummah prepared by the concerned Registration Officer for the election of the Legislative Assembly and in force at the time of the filing of the nomination paper by the petitioner because under section 18 of the Local Government Ordinance, the electoral roll prepared by the Chief Election Commissioner for election of the Assembly were to be used for the said election of the Local Bodies to be held on 27-10-1983.
16. ' Both the Returning Officer as well as the Appellate Officer came to the conclusion that the petitioner's name was not included either in the original electoral roll or its printed copy prepared by the competent authority and in force at the relevant time. The above finding of the aforesaid respondent has been found to be correct by me as well when I, for my own satisfaction, examine the original electoral roll of electoral area of Kasgummah, prepared under the signature of the Assistant Registration Officer, Bhimber and also printed copy of the same maintained in the Office of the Chief Election Commissioner Azad Kashmir, after calling the same from the said office. In the aforesaid documents, the name of the last male voter is entered as Kale Khan son of Muhammad Din at S.No.1662. Thus the contention of the petitioner that his name was entered by the competent authority in the concerned electoral roll at S.No.1664, does not appear to be correct. In the aforesaid printed copy of the electoral roll the name of the petitioner is not even included in hand as has been said by the Election Commissioner in his wireless message to the Registration Officer Bhimber.
17. ' The contention of the learned counsel for the petitioner that since under section 18 of the Local Ordinance the name once appearing on the previous electoral roll prepared for the election of the Assembly cannot be omitted in the electoral roll prepared subsequently to it and since the petitioner's name was entered in the previous supplementary electoral roll at S.No.1244, on the basis of which he had also contested the election to the membership of the District Council, the omission of his name in the electoral roll in force was of no significance and he was qualified to be a member of the District Council, has no force in the circumstances of the present case. It would advantageous to reproduce the relevant portion of the aforesaid section of the Local Government Ordinance, which reads as under:- "18. Electoral Rolls:
(1) For each ward there shall be maintained, in the prescribed manner, a register in which shall be entered the names of persons who possess the qualifications and are not subject to any of the disqualifications specified in the second schedule.
(2) The register maintained under subsection (1) shall be the electoral roll for the Ward: "Provided that for the first and second elections under this Ordinance the electoral rolls prepared by the Chief Election Commissioner for election to the Assembly would be used after such re- arrangement as may be necessary; provided that no name shall be omitted or added."
18. ' From the perusal of the provisions of the aforesaid section reproduced above, it becomes quite clear that in the first and second election of the Local Govt. Institutions, the electoral roll to be used shall be those prepared by the Chief Election Commissioner for the election of the Legislative Assembly of the Azad Kashmir and the concerned election authority of the Local Government is only given the power to re-arrange and re-adjust such an electoral roll whenever it is necessary to do so for the purposes of election to a Local Council and while doing so, no name can be omitted or added which was either not included or was omitted in the electoral roll prepared for the election of the Assembly.
19. In this case, the question of omitting the name of the petitioner by the election authority of the Local Government while arranging and re-adjusting the electoral roll does not arise because the electoral roll relied upon by the Returning Officer for making a decision on the nomination paper of the petitioner with regard to the qualification of the petitioner to contest the Local Bodies Election, was prepared and maintained by the Registration Officer concerned apppointed under the Azad Jammu and Kashmir Electoral Roll Ordinance (hereinafter referred to as Electoral Roll Ordinance) for the election of the Assembly and was not the one re-arranged and adjusted by the election authority of the Local Bodies under section 18 of the Local Government Ordinance read with rule 12 of the Local Government Election Rules, 1970 (herein after referred to as Election Rules). As the name of the petitioner was not entered in the electoral roll prepared for the purposes of election of the Azad Kashmir Assembly by the Registration Officer concerned, the Returning Officer was legally bound to reject his nomination paper under clause (a) of sub-rule (3) of the rule 6 of the Election Rules as the petitioner was not qualified to be elected as Member of the Local Council on account of his name not borne on the electoral roll of the concerned electoral area. Under the provisions of section 3 of Part-II of Schedule II of the Ordinance, a person whose name appears for the time being on the electoral roll for the Local Council concerned is qualified to be elected as a Member of that Local Council. It appears that the learned counsel for the petitioner is under a misconception that since the name of the petitioner was included by making an amendment in the previous electoral roll of the Union Council Kasgummah, his name could not be omitted in the revised electoral roll in force at the relevant time under section 18 of the Local Govt. Ordinance and as such his name shall be deemed to be included in the revised electoral roll in force at the time of filing of the nomination paper by the petitioner. This is not the correct legal position. The electoral roil prepared for the purpose of election of the Assembly can be amended and corrected at any time under the provision of section 10(5) of the Electoal Roll Ordinance in the manner prescribed by rule 20 of the Electoral Roll Rules and also fresh electoral roll can be prepared under subsection (7) of he said section of the Electoral Roll Ordinance.
20. The electoral rolls prepared by the Chief Election Commissioner were revised and fresh electoral rolls were prepared in the month of April, 1982 which were in force at the time of second election of the Local Bodies Election, held on 27-10-1983. Thus it cannot be argued that the name of the petitioner shall be deemed to be included in the electoral roll in force at the time of filing of the nomination paper by the petitioner for the election of the membership of District Council Mirpur by reason of its inclusion in the previous supplementary electoral roll which had become obsolete and ceased to exist in the eye of law on coming into force the subsequent revised electoral roll prepared by the Registration Officer concerned for the purposes of the election of the Assembly.
21. Therefore, the name of the petitioner was necessary to be borne on the latest electoral roll of the concerned electoral area for his being eligible and qualified to be elected as Member of the District Council Mirpur and the mere fact that his name appeared in any previous electoral roll of the concerned electoral area per se did not make him a person qualified to contest the election as a member to the said council.
22. ' It is no doubt correct that the petitioner had the right to get his name included in the electoral roll by taking legal steps envisaged under rule 20(1) of the Electoral Roll Rules and the Registration Officer could include his name in the same by making necessary amendment in it in the prescribed manner under the aforesaid provisions of the Electoral Roll Rules. But the name of the petitioner was not added by the competent authority in the electoral roll for the time being in force by making amendment in it in the manner prescribed by sub-rules (5) and (6) of the rule 20 of the Electoral Roll Rules according to which amendment is required to be made in the copy of the electorl roll in the custody of the Registration Officer as well as in the copies of the electoral rolls kept at the other places, under rule 21 of the said Rules and every such amendment shall be signed by the person who makes the same and the electoral roll in which such amendment is made shall thereupon be deemed to have been amended accordingly. No such amended electoral roll containing the name of the petitioner was produced either before the Returning Officer or before the Appellate Authority by the petitioner. As would appear from the order of the Returning Officer rejecting his nomination paper, the petitioner had taken the stand before the Returning Officer that his name at S.No.1664 of the electoral roll was entered by the Tehsildar Bhimber but no such amended electoral roll was produced before him and only a copy of his application to the Registration Officer was produced on which the Registration Officer Mirpur had passed the order on 10-1-1982 for the inclusion of the name of the petitioner as a voter. This shows that petitioner had based his claim to be qualified to contest the election as a Member of the District Council on the basis of entry of his name in the previous supplementary electoral roll which was in force at the relevant time but as stated earlier, has lost his legal force or value at the time of filing the nomination paper by the petitioner and referred to above.
23. ' Similarly, the petitioner has alleged in para-11(viii) of this petition that he had filed a copy of the supplementary electoral roll referred to above and containing his name at S.No.1244 before the Appellate Authority in proof of his having been entered as voter in the electoral roll.
24. ' The above copy of the electoral roll was of no help to the petitioner and the entry in it of his name could not be used for holding him to be qualified to be elected as a Member of the District Council because the said electoral roll had ceased to be in force and fresh electoral roll prepared by the Registration Officer had replaced it.
25. ' The contention of the learned counsel for the petitioner that the very fact that the Election Commissioner had informed the Returning Officer through wireless message that the entry of the name of the petitioner had been deleted from the electoral roll goes to prove that the petitioner's name was borne on the electoral roll for the time being in force is not relevant in this case. When the petitioner's name did not appear either in the draft electoral roll or printed copy of the same, as held earlier, the question of deletion of his name from the electoral roll having the force of law did not arise and in this view of the matter even if the Election Commissioner had sent any message of the nature indicated above to the Reurning Officer, it was merely an exercise in futility and did not makes the petitioner an elector eligible to contest the District Council election which he was not according to the entries of electoral roll to be used for determining the qualification of the petitioner to be elected as Member of the District Council. The final order in the matter of rejection of the nomination paper of the petitioner shall be considered to be the impugned order of the Appellate Officer. According to the said order, the appeal of the petitioner against the rejection of his nomination has not been dismissed on the ground of his name having been deleted from the electoral roll by the Election Commissioner but on the ground that nor the original electoral roll or its printed copy contained the name of the petitioner as a voter.
26. ' Therefore, the reasons given by the Returning Officer for the rejection of the nomination paper of the petitioner loses any importance in the presence of the final decision of the Appellate Officer in the matter but even the Returning Officer in his impugned order had un-ambiguously stated that in the electoral roll of the concerned electoral area, the name of the petitioner did not find any place, although in support of the rejection of the nomination paper of the petitioner the deletion of the name of the petitioner from the electoral roll was specifically mentioned. If the name of the petitioner had appeared in the electoral roll and the nomination of the petitioner had been rejected on the ground of his name having been deleted from it by the Election Commissioner then, of course, this contention of the learned counsel would have been quite valid because the Election Commissioner has no power under law to strike off the name of a voter from the electoral roll prepared and maintained by the Registation Officer for the purpose of election of the Assembly. It may not be out of place to mention here that during the arugments when the attention of the learned counsel for the petitioner was drawn to the fact that no evidence of the petitioner's name having been added in the electoral roll in force, has been filed either with the petition or produced at any latter stage before this Court. The petitioner, after the conclusion of the arguments, had placed the copy of the order of the Returning Officer made on the application of the petitioner for the inclusion of his name in the electoral roll.
27. ' I have perused the above order of the Returning Officer 18-10-1983 which is to the effect that the Assistant Registration Officer would add the name of the petitioner in the electoral roll in accordance with the rule but the Assistant Registration Officer did not included the name of the petitioner in the electoral roll. The above order of the Registration Officer would not, by any stretch of immagination, amount to the inclusion of the name of the petitioner in the electoral roll of the concerned electoral area in the prescribed manner which has already been indicated in the earlier part of this judgment.
28. 'The net result of the above discussion is that the petitioner's name was neither borne, either on the original electoral roll prepared by the Registration Officer concerned or on the printed copy of the same furnished to the Returning Officer by the Election Authority nor the same was added in the electoral roll by way of amendment in it in the prescribed manner before the passing of the impugned order of rejection of his nomination paper and thus, the petitioner was not qualified to be a Member of the District Council Mirpur by reason of his name not appearing, for the time being, on the electoral roll of the concerned electoral area as was the requirement of the law embodied under section 3 of Part-II of Second Schedule of the Local Government Ordinance. It does not fall within the ambit of the authority or jurisdiction of the Returning Officer to go into the question as to whether or not the name of a candidate for the election to the membership of the Local Council, has been lawfully excluded on the electoral roll or to question the validity or correctness of the entries made in it and has to confine himself to the entries the copy of the electoral roll of the electoral area concerned furnished to him by the election authority under rule 12 of the Election Rules for the purpose of determining the question of appearance or non-appearance of the name of a candidate for the election to the membership of the concerned Local Council. When the present case is examined in the light of above legal position, the nomination paper of the petitioner was liable to be rejected under sub-rule 3(1) of rule 16 of the Local Government Election Rules and thus, no illegality has been committed in passing the impugned orders.
29. ' For the reasons stated above, this Writ petition is dismissed with no order as to costs.