' ABDUL QADEER CHAUDHRAY, J.-- The petitioner contested the election for the Clifton Cantonment Board from Ward No,
8. The petitioner was elected from the said ward which consisted of Lower Gizri, Bakhshan village, Upper Gizri including Gizri Bagh Colony. The petitioner was originally residing at House No, 1-A, Gizri Bagh Colony changed his house and such intimation was given to respondent No, 2 on or about 22-10-1983, while the elections were held on 26-10-1983. The change was notified by the Registration Officer on 24-1-1984. On 31-1-1984 the Federal Government by the Notification excluded upper Gizri including Gizri Bagh Colony from cantonment limits. As a result of the said notification the areas specified therein ceased to be the part of Clifton Cantonment, but lower Gizri and Bakhshan village continued to be the part of Ward No,8.
2. The petitioner claimed that though he was validly elected but he was not allowed to take oath as a member of the Cantonment from Ward No,
8. His prayer in this petition is that It be declared that he is a duly elected Councilor of the Ward No, 8 and the respondent No, 2 be directed to administer oath of office to the petitioner.
3. The petition has been contested and according to respondent No, 2 the Upper Gizri including Gizri Bagh Colony and Machi Para have been excluded from the Cantonment limits, therefore, the smaller bits of the previous Ward No, 8 are being merged with the remaining ward. As the present petitioner was elected from the previous Ward No, 8 to be the resident of the area excluded from the Cantonment limits he cannot claim representation in the Cantonment Board.
' The principal contention made by the learned counsel for the petitioner is that the petitioner has been elected under the provisions of Cantonment Act, therefore, membership cannot be refused to him and if his membership is being challenged that can be challenged by way of election petition.
The learned counsel has referred to the case of Emmanuel Masih v. The Punjab Local Councils Election Authority and others reported in 1985 SCMR 729 wherein it has been observed that Election Authority becomes focus officio after the election is over. Validity of the election could be challenged by aggrieved person only through election petition. He has further submitted that the entry in the electoral roll has become final and such entry cannot be challenged by the respondents. On the basis of such entry he contested the election.
4. To appreciate these contentions, it would be necessary to refer to the relevant facts. A Constitutional Petition No, D-785 of 1983 was filed by one Allah Bakhsh Brohi wherein it was contended that Gizri Village being Municipal area since inception was already included in Union Council No, 85 pertaining to Frere and Clifton area of K.M.C. For the purpose of Local Body Elections and the elected representative always seated in the K.M.C. Council. A relief was claimed that election of Gizri village pertaining to Ward No, 8 must not take place under the jurisdiction and control of Clifton Cantonment Board, and to declare that part of Ward No, 8 is to be permanently attached and made part and parcel of K.M.C. Prayer to the stay of election to be held on 26-10- 1983 by Clifton Cantonment Board was also made.
' This petition was filed on 10-10-1983. The petition was admitted for regular hearing and as regards the interim relief it was observed by the Court, "elections are fixed on 26-10-1983 and we would not like to stop elections as that would disenfranchise the residents of Gizri village. If ultimately it is established that Gizri village does not form a part of Clifton Cantonment, the result of the election shall stand annulled. No prejudice will be caused to the electorate whose interest we would like to protect." This petition was dismissed for default on 14-5-1985.
' The present petition has been filed on 15-5-1984 i.e, after the elections were held. The learned counsel for the respondent has submitted that as the stay was not granted by the Court in Petition No, 785 of 1983, therefore, the elections from this ward were held but as the area was excluded on 26-1-1984 after the elections were held, the petitioner is not entitled to any relief, as he does not represent the area which is now part of the Municipal Corporation. The elections to the Cantonment area have been held in accordance with the electoral rolls 1974 (15-A) of the Cantonments Act. Qualifications and disqualifications have been mentioned under sections 15-B and 15-BB of the said Act.
' The precise point for determination in the present petition is that the area from which the petitioner contested the election was excluded from the Cantonment Board, and, therefore, he could not contest the election from that ward. The learned counsel has stated that he has shifted his house from House No, 1-A Gizri Wah Colony and such intimation was given to the respondent No, 2 on or about 22-10-1983. The Registration Officer accepted the change on 24-1-1984.
' The position is quite clear that when the elections were held, his request for the change had not been accepted until then, therefore, for all intents and purposes his address was the same which was mentioned in the electoral roll originally prepared. Additionally, the entry in the electoral roll cannot be changed in the way it has been done, in the instant case. The preliminary electoral rolls are prepared under section 8 of the Electoral Rolls Act, 1974 (hereinafter referred to as the Act).
Under section 10 every claim for inclusion of a name in the electoral roll, and every objection to or application for correction of, any entry therein shall be made to the Revising Authority within a period of twenty-one days next following the date of the publication of the preliminary electoral rolls. Under section 11 of the Act 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 claim with the appropriate Revising Authority if it is preferred before the final publication of the electoral roll under section 16 or with the appropriate Registration Officer if it is preferred after such final publication. Under section 12 any claim or objection or application for correction not made within the period specified in section 10 or in the prescribed manner shall be rejected. The Registration Officer shall correct the electoral roll in accordance with the decision of the Revising Authority under section 14. Under section 20 no revision or correction of any electoral roll for an electoral area shall be made 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. For the purpose of election to the Cantonment Board the electoral roll prepared under the Act was the appropriate electoral roll and no change can be made after the constituency has been called upon to elect its representative.
The elections were to be held on 26-10-1983 and according to the petitioner he submitted the application on 22-10-1983. The nomination papers were filed much before that date, therefore, no correction in the electoral roll could be made by the Registration Officer. Only the Chief Election Commissioner was competent to make any change in the electoral roll. Thus, the very basis of the petitioner's claim that he had changed his address and as a consequence of which he was entitled to contest election from Ward No, 8 falls to the ground.
' The learned counsel has referred to the case of Khushnood 'Ahmed v. President, Cantonment Board, Quetta Cantonment and 3 others reported in PLD 1984 Quetta, 117, in support of his contention that the only remedy for the respondent was to file the election petition. The facts of this case are distinguishable and even otherwise the observations made in this case go against the petitioner. In the reported case, nomination paper of the candidate was rejected by the Returning Officer on the ground of his being non-resident of cantonment area and in such circumstances it was held that right course was to file election petition instead of invoking the Constitutional jurisdiction of the High Court. In the instant case, the facts are different inasmuch as that the petitioner contested the election and was declared as the returned candidate. There is no challenge to his election. As such, there is no election dispute to entail an election petition.
A peculiar situation seems to have arisen from the Federal Government Notification No, SRO- 104(1)/84, dated 28th January, 1984, whereby certain area, namely upper Gizri including Gizri Bagh Colony was excluded from Ward- No, 8 of Clifton Cantonment after the election was held and results were announced and the petitioner was declared elected to Ward No,
8. The petitioner has not been administered oath of membership for the reason that the area wherefrom he filed nomination paper to contest the election stands excluded from the limits of the cantonment and he can no more be a member of the Cantonment Board. Of course, he was elected a member from Ward No, 8 which comprised the excluded area and some other areas which continue to be within the limits of Clifton Cantonment. But since the limits of Ward No, 8 were excised, a consequential order by the Federal Government regarding the right of franchise of the affected population would have saved the anomalous situation. Although the petitioner stands elected as a member from Ward No, 8 of Clifton Cantonment, yet he cannot be given the relief sought under the constitutional jurisdiction as he happens to be an elector from the area which has been excluded from the limits of the Cantonment as per Federal Government Notification referred above. Federal Government has not been made a party. We, therefore, dismiss the petition with no order as to costs.