1. SALEEM AKHTAR, J.---These petitions have been referred to this Bench on difference of opinion between the learned Judges of the Division Bench. First it was referred to a learned Single Judge who refused to hear on the ground that be has already expressed his opinion as a member of a Division' Bench on the point in another case and therefore, in view of Article 26 of the Letters Patent this case was referred to a Bench of two Judges instead of a Single Judge. When the difference of opinion arose two questions were framed namely:-- (1)Whether the Returning Officers were entitled to reject the nomination paper on the ground that the names of the candidates were included in voters list after cut off date?
2. (2)Whether in the facts of the present case the High Court can grant any relief to the petitioner?
3. Later at the time of signing the order sheet another question was added by one of the learned Judges of the Division Bench which is as follows:-- "Whether the Registration Officer could enter the names in Roll after electorates have been called upon to elect representatives in view of section 20 of the Electoral College Act, 1974 and the cut off date fixed by the Election Authority."
4. A perusal of these questions will show that the first two questions directly arise from the controversy before the Court between the parties to the petition. But the last question relates to an action of the Registration Officer who is not a party to these petitions. In our view in the absence of the Registration Officer no proper and valid adjudication can be made impugning his action- Leaving this apart, the first two questions materially cover the third question as well so far it relate-, in the parties to the petition.
5. We therefore, propose to restrict our reply only to the first two questions as they cover the entire controversy. We will first give the brief facts of each petition.
6. C.P. No.1577/87.
7. The petitioner filed his nomination paper from Electoral Unit No.11 HMC which was rejected by the Returning Officer, the respondent No.3 on 13-11-1987 on the ground that he was registered as a voter in the voters list on 8-11-1987 whereas the cut off date was fixed by the Provincial Election Authority as 4-11-1987. The petitioner filed appeal before respondent No.2 who dismissed it and observed that the petitioner had filed his application for addition of his name in the electoral roll after the cut off date i.e. 4-11-1987 and that it was not correct that the petitioner had submitted his application for registration on 4-11-1987. After erasing some other entry his name was mentioned against Serial No.14 which was managed one and could not be relied upon.
8. C.P. No.1582/87.
9. The petitioner filed nomination form for Electoral Unit No. HMC 3 which was rejected by respondent No.2 the Returning Officer, by his order dated 13-11-1987 on the ground that the petitioner's name was entered in the electoral roll on 10-11-1987 after the cut off date. The appeal was dismissed by the impugned order.
10. C.P. No.D-1588/87, The petitioner filed nomination paper from Town Committee Constituency No.TC 2 and 3 which was rejected by respondent No.3 the Returning Officer on 10-11-1987 on the ground that the petitioner's name was registered in the voters list on 10-11-1987 after the cut off date. The appeal filed by the petitioner was dismissed by the impugned order dated 18-11-1987.
11. C.P. No.D-1590/87.
12. The petitioner filed nomination paper for the local bodies election for Town Committee No.TC 6 and 7 Berani which was rejected by the Returning Officer, respondent No.3 by order dated 13-11-1987 on the ground that the petitioner's name was included in the voters' list on 10-11-1987 after the cut off date. The appeal filed by the petitioner was dismissed by the impugned order dated 18-11-1987 passed by respondent No.2. - The main point which seems to dominate all the four petitions is whether the Returning Officer could have rejected the nomination paper on the basis that the names of the candidates were entered in the electoral fist after the cut off date was fixed by the Election Authority.
13. The main contention of the petitioners is that the Returning Officer h has no jurisdiction to inquire into the validity or correctness of the entries in the electoral roll. The respondents have contended that as the electoral rollwas prepared for the election of Provincial Assemblies under the Electoral F Rolls Act, 1974 and borrowed for purposes of local bodies election the p provisions of section 20 of the Electoral Rolls Act which prohibit any alteration o or addition in the electoral roll after the electorate has been called upon to e elect shall be applicable. To support their contentions the learned counsel for the parties have referred to the same authorities which have been cited in the judgment. As they have been discussed at length in both the judgments we n need not further deal with them. We will only mention these authorities as follows:-- (1)Khushnood Ahmad v. President Cantonment Board, Quetta and 3 others PLD 1984 Quetta 117.
14. (2)Ch. Mohammad Hussain v. Election Tribunal and others PLD 1981 Lah. 374.
15. (3)Imtiaz Ali v. Ghulam Muhammad Butt and others PLD 1958 SC 228.
16. (4)Mohammad Tufail v. Muhammad Saleem and others PLD 1967 Kar.
17. 104.
18. (5)Syed Aminuddin Chowdhry v. The Election Tribunal, Chittagong and 17 others PLD 1968 SC 235.
19. (6)Sirajul Islam Khan v. Ahsan Ali Mondal and others PLD 1969 SC 5.
(7) Ch. Mohammad Hussain v. Election Tribunal and others 1982 SCMR 307.
20. (8)Dr. Babar Hameed Chohan v. Muhammad Afzal Munif and 2 others 1984 SCMR 537.
21. (9)Sh. Abdul Hamid v. President, Cantonment Board and others 1984 CLC 592.
(10) Thakurdas v. The Returning Officer and 3 others 1984 CLC 1024.
(ii) Munir Ahmad v. Returning Officer PLD 1966 (W.P.) Karachi 1.
(12) Rashid Ahmed Rahmani v. Mirza Barkat Ali and 2 others PLD 1968 SC 301.
22. From the aforestated authorities it is dear that the Returning Officer s is barred from questioning the validity or correction of any entry in the voters list and that section 20 of the Electoral Act will not apply to election under Sindh Local Government Ordinance. We are restricting to this dictum as observations regarding Election Tribunal are not relevant for these petitions.
23. At the outset we may observe that under section 35 of the Sindh Local Government Ordinance, 1979 (hereinafter called "The. Ordinance') the electoral rolls prepared for elections to the Provincial Assembly shall be used as electoral rolls for elections to a council. The Election Authority under the Ordinance is not required to prepare any fresh electoral roll for the elections to a council, but the election is held on the basis of the electoral roll prepared for the election to the Provincial Assembly. This electoral roll is prepared under the provisions of Electoral Rolls Act, 1974. The Election Authority thus borrows the electoral roll prepared under this Act and uses it for the election to the council. Section 35 speaks only of obtaining the electoral rolls prepared by the Election Commission under the Electoral Rolls Act, but it does not expressly or impliedly import the applicability of any provision of the Electoral Rolls Act. In the absence of any adaptation or any reference to Section 20, which restricts and prohibits the registration of names after electorate has been called to vote, the same cannot be pressed in service nor applied to the elections under the Ordinance. Having obtained the electoral rolls prepared by the Election Commission, the Election Authority as required by section 35(2) of the Ordinance arranges and splits it up in such a manner that there shall be separate electoral roll for each electoral unit. The electoral units under the Ordinance for the election to Council are much smaller in area and population than the electoral units of the Provincial Assembly election. One electoral unit of Provincial Assembly may consist of several units of local, bodies election. The Election Authority under the Ordinance has therefore to prepares its own electoral roll for the purposes of holding the election. Basically the electoral roll is borrowed from Election Commission, but for purposes of local bodies election it is rearranged by splitting up for each electoral unit. By this process the electoral roll which has been borrowed is completely changed in its shape and dimension. From the date it is split up it becomes the electoral roll of the Election Authority for the purpose of holding election under the Ordinance. In these circumstances the question of applicability of section 20 of the Electoral Rolls does not arise.
24. The Registration Officers under the Electoral Rolls Act continue the process of making the electoral roll upto date. By mere borrowing the electoral roll from the Election Commission it does not mean that the entire process and machinery under the Electoral Rolls Act has stopped and it has come under the control of the Election Authority. The Election Commission has given the Election Authority a copy of the electoral roll which can be split up and the Election Authority or any other officer under the Ordinance is not competent to change or alter the electoral roll. Any change in the electoral roll has to be made as provided by the Electoral Rolls Act, 1974.
25. The next question which comes for consideration is that as section 20 of the Electoral Rolls Act is not applicable whether it is possible that the Election Authority may fix a cut off date. The Authority exercises its jurisdiction and power under the said Ordinance. Section 35 as discussed above permits the borrowing, re-arranging and preparation of the electoral roll in accordance with the units in which elections are to be held. Therefore, to that extent the Electoral Roll is subject to such changes as required for the purposes of splitting up in respect of each unit. Splitting up ' is only bifurcation. It does not amount to addition or deletion of any name from the electoral roll. The Authority is charged with the duty to hold just, fair and free election and, for that purpose it can exercise its jurisdiction and pass order.- to ensure that corrupt and illegal practices are eliminated from the election- This power is exercised by the Authority under Rule 3 of the Sindh Local Government Election Rules, 1979 -which reads as follows-- "The Election Authority shall exercise. Its powers and perform its functions in accordance with the Ordinance and Rules including the power to review an order passed by any Officer and make such consequential order as it may consider proper for ensuring fair elections".
26. Further section 34 of the Ordinance vests the Election Authority to exercise such powers and perform such functions as may be prescribed. It further casts a duty on the Election Authority to ensure that the elections are held fairly and corrupt practices are guarded against. Similar provisions in the Punjab Local Government Ordinance, 1979 came up for consideration before the, Supreme Court in Emmanual Masih v. Punjab Local Council and others 1984 SCMR 729 and Punjab Local Council Election Authority Lahore v. Muhammad Aslam and another 1982 SCMR 1086. In Emmanual Masih's case while quoting Muhammad Aslam's case it was observed as follows:- "The Election Authority at the apex, whosoever designated, is invariably charged, consistently with the very object, the purpose and the importance of the process of elections, with the duty of ensuring honest, just and fair elections and is invested with all the enabling and remedial powers in that behalf. Article 218(3) of the Constitution, for example, empowers the Election Commission: "to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against."
27. To the same effect, though somewhat differently ' worded, is the provision empowering the Election Authority under section 17 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance). It provides that:-- The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the rules and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules."
28. The position of the Election Authority and its responsibilities in the matter have been brought out by this Court in the Punjab Local Councils Elections Authority, Lahore v. Malik Muhammad Aslam and another 1982 SCMR 1086 in the following words: "We note that the creation of a high powered authority like the Election Authority which is to consist of three members and whose Chairman must be or has been a Judge of the High Court to ensure that an Election is conducted honestly, justly and fairly in accordance with the provisions of the Ordinance and the Rules, is 4 recent phenomena in Election Laws, intended to see that in the conduct of elections there should be fairness, impartiality and honesty and that the provisions of.
29. The law are not violated. Thus, subsection (2) of section 17 does not appear to be a provision which was intended to restrict the general and plenary power of superintendence conferred by section 17(l) of the Ordinance and there appears to be force in the submission-that the interpretation placed by the Division Bench of the High Court ousting the jurisdiction of the appellate Election Authority to take any remedial action until after the election has taken place i.e. When the result of the poll has been notified under Rule 41(2) of the Punjab Local Council (Election) Rules, 1979 would Appear to defeat the mandate of the la w given in section 17(l) that the Election, Authority must se ' e 'that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and Rules'. On the interpretation given by the learned Judge of the Division Bench the Appellate Authority would cease to have jurisdiction in the conduct of the elections and, all illegalities and irregularities committed during the course of the elections would not be amenable to correction by the Election Authority."
30. Where such is the composition of the Election Authority, so clear the mandate of law, and no public, and publicised is functioning, it cannot, unless the compulsions of law leave no option, be made a helpless onlooker, enjoined to countenance manifest illegalities with the only available apology that they can be taken care of and dealt with at a subsequent stage, in a different proceeding at a more leisurely base, and in the interregnum the consequences of such manifest illegalities and fruits thereof should remain available to these ex facies not deserving of it. How all this happens will appear clearly when I deal with the various entries of the electoral roll and their effect on the working of system. Before that the law, the principles and the precedent must be noted and reconsidered."
31. In our view the Election Authority after obtaining the electoral roll prepared for the Provincial Assembly election splits it up and publishes it and also issues notice in Form I for holding the election. The electoral roll borrowed by the Election Authority becomes the electoral roll for the purpose of holding the elections of the local bodies and it is on the basis of the electoral roll that the election. Should be held. If the name of any voter appears in this D electoral roll then irrespective of the fact how it has been entered the Returning Officer will not have any jurisdiction to question the validity of such an entry. It may be mentioned that after the electoral roll has been spilt up and election programme has been published the Registration Officer will have the jurisdiction to add or delete the names from the electoral roll in his custody and 'can amend it from time to time as required by law. But such amended electoral roll shall not be used or treated to be the electoral roll borrowed by the Election Authority for the purposes of the election under the Ordinance. It is true that the irregularity or any illegality in the description or the, registration of the names will not be questioned by the Returning Officer, but the question is on the basis of which electoral roll he is exercising the jurisdiction. At the time of scrutiny of nomination papers the Returning Officer has to restrict himself only to such electoral roll which after obtaining it from Election Commission has been split up and published. If such an interpretation' is not placed and this restriction is not imposed we are afraid over night constituencies will be flooded with voters and will upset the entire elections. The election must be held in a proper, legal and honest manner and no such course should be allowed which may permit dishonest persons to take advantage of it and get names of their supporters entered in the electoral list for winning the election. We are therefore, of the view that so far question No.1 is concerned our answer is that if the name of any voter appears in the electoral roll on the date it was split up and published, the Returning Officer is barred from challenging its validity. For purposes of scrutiny of the nominationpaper for election to the Council, the Returning Officer cannot look to the electoral roll maintained by the Registration Officer and amended from time to time.
32. So far as question No.2 is concerned we have noted that the Elections have already been held. We -are further conscious of the fact that while deciding whether the amendment in the electoral roll was proper or not the presence of the Registration Officer is necessary. Furthermore, it involves disputed question of fact whether the entries or applications for correction or addition were made before the cut off date or not and as there are certain other disputed questions of facts regarding erasures and forgeries which can properly be decided in an election petition, we do not propose to grant any relief and thus dismiss the petitions.
33. AA./M-1597/K