' IHSAN-UL-HAQ CHAUDHRY, J.---It is proposed to dispose of IntraCourt Appeals Nos.337 of 1998 and 370 of 1998 by one judgment because common questions of law and fact are involved.
2. The relevant facts are that respondent No,1 filed Constitutional petition,wherein it was prayed that the decision of the Federal Government dated 18-12-1997 for holding Local Bodies Elections in all Provinces of Pakistan on 7-2-1998 may be declared .To be illegal, without lawful authority and of no legal consequence. It was further prayed that the respondents may kindly be directed to conduct the elections to the Local Bodies after holding of the census and correction of electoral rolls by respondent No,3 accordingly. The respondent No,1 had impleaded Federation of Pakistan through Secretary, Cabinet Division, Punjab Province and Chief Election Commissioner as respondents. It is interesting to note that although the prayer was in respect of all the four Provinces yet the other three Provinces were not impleaded as respondents. The writ was admitted to hearing and notices were issued to the respondents, who were represented by learned Advocate-General, Punjab and Kh.Saeed-uz-Zafar, learned Deputy Attorney-General. The learned Single Judge in Chambers accepted the Writ Petition vide order dated 30-4-1998, which has been challenged by the Province of Punjab through the present appeal. The same came up for hearing on 4-5-1998 when it was noticed that certified copy of the judgment had not been enclosed with memo. Of appeal. We sent for the original file to proceed with the appeal and found that the judgment was not ready. In the circumstances, the appeal and other connected matters were adjourned for 5-5-1998, when we were informed that the judgment was yet not complete. However, the learned Advocate-General argued that since it was an urgent matter, therefore, we could proceed with the hearing of the arguments even in the absence of copy (certified or uncertified) of the judgment of the learned Single Judge in Chambers. In this behalf, reliance was placed on Mst.
Safia Begum v. Taj Din and 2 others (1993 SCMR 882).
' In this view of the matter, we decided to hear the arguments. The appeals and other connected matters were treated as 'notice' cases with the concurrence of the parties. We have heard the parties at some length and adjourned these matters to 8-5-1998 for the remaining arguments and to wait for the judgment by the learned Single Judge in Chambers. We have received the file alongwith judgment and heard the parties at length.
4. Kh. Muhammad Sharif, learned Advocate-General Punjab, argued that the learned Single Judge in Chambers has directed holding of the election of Local Bodies subject to preparations of new electoral rolls on the basis of census carried out in March 1998. It was added that the last elections of the Local Councils were held in 1991 and the Local Councils were dissolved by the Caretaker Government in 1993 and since then elections have not been held. If the impugned direction is not set aside, it will not he possible to hold elections for another 1-1/2 years. As this was the minimum time likely to be taken to tabulate the census data. It was argued that census had nothing to do with the elections of the Local Councils. It was added that under Article 219 of the Constitution of Islamic Republic of Pakistan, 1973 the Chief Election Commissioner has been charged with the duty of preparing electoral roll for elections to the National and Provincial Assemblies and revising such rolls annually. According to section 18 of the Punjab Local Government Ordinance, 1979, the election to the Local Councils was to be held as per electoral rolls prepared by the Chief Election Commissioner for Provincial Assemblies. In this behalf, the learned Advocate-General referred to section 6 of the Electoral Rolls Act XXI of 1974 (hereinafter to be referred as Act XXI of 1974) dealing with the preparation of preliminary electoral roll etc. He also referred to Article 51(3) of the Constitution 1973. It was argued that the seats in the National Assembly are allocated to each Province etc. On the basis of population in accordance with the last preceding census officially published. It was added that the same term has been used in the definition of 'population' as given in section 3(xxviii) Ordinance, 1979. The next argument was that the Local Councils Elections were held in 1979 and 1983 under the Martial Law while Muslim League Government held the elections in 1987 and 1991. The last Local Councils were not allowed to complete their normal tenure. Thereafter, in spite of the directions of the superior Courts the Government in power did not hold elections instead in order to defeat the judgment of the Hon'ble Supreme Court, the Punjab Local Government (People) Act, 1996 was promulgated. The other argument was that election process started in February, 1998 but the respondent-writ petitioner remained a silent spectator. Now when even the symbols have been allotted to the candidates for the elections is to be held on 20-5-1998 he pressed his writ petition before the learned Single Judge in Chambers. It was argued that once the election process has started, the same cannot be stopped. The learned Advocate-General, in this behalf referred to the cases of Khawaja Muhammad Sharif v. Federation of Pakistan and 18 others (PLD 1988 Lahore 725), Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166) and Emmanual Masih v. The Punjab Local Councils Election Authority and others (1985 SCMR 729). It was added that the matter had been clinched by the rule laid down by the Hon'ble Supreme Court in the judgment in Constitutional Petitions Nos.62, 64 and 65 of 1996, decided on 15-12-1996. It was argued that no political party worth the name could afford to oppose election process. It was added that the writ petitioner and his partymen contested the General Elections but could not win a single seat either in the Parliament or in the Provincial Assemblies, therefore, they were avoiding election due to fear of defeat. It was argued that the respondent is not even a candidate in these elections.
5. The learned Deputy Attorney-General argued that census and its result has nothing to do with the preparation of electoral roll under sections 17 and 18 of the Electoral Rolls Act, 1974. It was argued that the preparation of electoral roll was a continuous process while census has to be carried out after every 10 years.
6. Ch. Naseer Ahmad Bhutta, Advocate in Intra-Court Appeal No,370 of 1998 argued that three elections have been held on the basis of 1981 census. The election process started in February, 1998.
The citizens have a right to elect their representatives while no citizen is to be deprived of his right of vote or disfranchised. It was argued that the voters' lists have been updated even after 1996 General Elections. The delimitation has been carried out in such a manner that no citizen was deprived of his right of vote. It was added that in 1979 the Lahore Municipal Corporation had only 100 wards, which have now been increased to 250. It was argued that the election started with the delimitation process; the census has no nexus with the same and the final phase started with the filing of nomination papers. Now only the voters were to cast their votes in favour of candidates of their own choice. It was argued that the voters' lists were uptodate as is clear from the fact that only within the municipal area of Lahore one lac new voters had been registered. It was argued that making the election subject to the preparation afresh lists of voters in accordance with the result of the census 1998 whenever available was not justified.
7. On the other hand, Mr. Hamid Khan, Advocate argued that the learned Single Judge in Chambers has directed holding of elections subject to revision/updating of the electoral roll/voters' lists on the basis of result of 1998 census. It was added that the Chief Election Commissioner has been charged with two-fold duty under Article 219(a) namely, (i) preparation of the rolls, and (ii) annual revision. It was argued that as per Article 51(3) the allocation of the seats depended on the result of census. It was added that as per sections 6 and 9 of the Punjab Local Government Ordinance, 1979 (hereinafter to be referred as Ordinance of 1979) the constitution of Local Councils was to depend on the 'population', therefore, it had direct nexus with the census in the. Country. It was argued that under section 11 of The Census Ordinance the census could also be carried out by the Local Councils. It was submitted that the electoral rolls as well as the delimitation process is to be carried on the basis of last preceding census. Therefore, for elections to be held on 20-5-1998 the last census would mean the census as carried out in March, 1998. It was argued that the words 'final publishing' appearing in section 18 of the Electoral Rolls Act, 1974 are of no consequence because it was just a follow up and ministerial function. It was submitted that his client challenged the elections because it was felt that if the elections were held now, then it would not be a fair representation. At least 40% of the population would be deprived of right of vote. It was added that compiling of the result of the census should not take more than six months as in the past but the Government is avoiding to compile the same mala fide. It was argued that in the circumstances to postpone the election is in the national interest as it would make the participation of the whole nation possible.
8. Mr. Hamid Khan, Advocate went on to argue that holding of elections, on the basis of 1981 census would not be conducive to attain the object of Local Councils, which are the basic institutions in a democratic set-up. It was added that the holding of election under electoral rolls prepared on the basis of 1981 census would amount to deprive 40% to 50% population of its participation in the Local Councils. It was argued that in section 3 (xxviii) of Ordinance, 1979 the primary focus was on the words 'last preceding census' while the later requirement of publication is only ministerial act. It was added that if the Government was allowed to hold the election on the basis of 1981 census, this would amount to taking benefit of its own negligence and inefficiency in compiling and publishing the result of census.
9. It was argued that the interpretation, which was progressive, dynamic and oriented with the changes in the Society was to be adopted. In this behalf, reliance was placed on Al-Jehad Trust v.
Federation of Pakistan and others (PLD 1996 SC 324). It was added that interpretation, which was beneficial, to be adopted. In this behalf, reliance was placed on Messrs V.N. Lakhani & Company v. m.v. Lakatoi Express and 2 others (PLD 1994 SC 894). It was argued that while interpreting statutes consequences should be kept in mind. Reliance was placed on Johnson and another v. Moreton (1978) 3 AER 37 (at page 42) and Stock v. Frank Jones (Tipton) Ltd. (1978) 1 AER 948 (at page 953). It was submitted that if any term or word is capable of more than one meaning then the meaning, which were reasonable and just were to be adopted. In this behalf, reliance was placed on H.H.
Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and others v. Union of India (AIR 1971 SC 530).
10. It was argued with reference to Article 32 that State shall encourage local Government institutions and the emphasis was on 'areas concerned'. It was added that it was not possible to demarcate the areas effectively without the result of census. Similarly, the status of Local Councils could not be determined without exact figure of population being available. It was argued that these institutions are of basic tier of the democracy as they were to deal with the basic needs like health and education of the community. The delimitation of the electoral units had to be carried out on the basis of the population. It was argued that after the decision of Hon'ble Supreme Court in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), the interference is possible even if electorate has been called upon to elect. It was argued that the petitioner being a citizen has locus standi to file the writ petition. In this behalf, reliance was placed on Malik. Asad Ali and others v. Federation of Pakistan (PLD 1998 SC 161). It was argued that there is clear nexus between the result of census and electoral rolls.
11. Mr.Farooq Amjad Meer, Advocate appearing for respondent No,1 added that the election was being held for a small fraction of the Local Councils. It was argued that the rule laid down by the Hon'ble Supreme Court in respect of General Elections in the cases of Kh.Muhammad Sharif and Haji Saifullah was not applicable to the Local Councils in view of the provisions of Article 48 whereby the election was to be held within 90 days and Article 86, according to which Federal Government cannot authorize expenditure for more than 4 months. It was added that the word "area" appearing in Article 32 is very important and the same was to be read with section 3(11) of Ordinance, 1979.
12. Kh. Muhammad Sharif, learned Advocate-General while summing up the arguments submitted that the result of census becomes available for election purposes only after publication. He added that the word 'publication' has not been defined. Therefore, it has to be given its dictionary meaning. The same came up for interpretation in the judgments reported as Mohtarma Benazir Bhutto v. The President of Pakistan (PLD 1992 SC 492) and Mumtaz Hussain v. Chief Administrator, Auqaf Department, Lahore (PLD 1976 Lahore 1511). It was argued that the census had no nexus with the electoral roll, which continuously remain under process in view of the provisions of Act XXI of 1974.
13. The learned Deputy Attorney-General added that the tabulation of the result of the census would take more than one year as it involved the whole country and process was quite complicated. It was argued that it had no bearing on the electoral roll as was clear from the provisions of Constitution of 1973, Electoral Rolls Act, 1974 and Punjab Local Government Ordinance, 1979. He added that each word of the Constitution was to be given meaning and redundancy was not to be attributed to the Legislature as argued by the learned counsel for the respondents.
Therefore, the words "last preceding census" are not to be read in isolation but the second condition of publication was equally important. It was argued that there was absolutely no chance of anybody or any area in the Province of being deprived of representation in the Local Councils.
14. Dr. Qazi Mohy-ud-Din, Advocate appeared on behalf of the Punjab Local Councils Election Authority and argued that Article 219(a) is to be read with 222(c) of the Constitution of Islamic Republic of Pakistan, 1973. It was added that the Election Authority has the exclusive jurisdiction in the matter of preparation and revision of electoral rolls. It was a continuous process and voters' lists to be used for the election schedule to be held on 20-5-1998 were uptodate. It was argued that this was proved by the fact that bye-election of NA-102 was to take place on the basis of these lists.
It was submitted that the judgment of Lahore High Court reported as Akhtar Saleem v. Registration Officer and others (PLD 1992 Lahore 34) was set aside by the Hon'ble Supreme Court in the judgment reported as Election Commission of Pakistan v. Asif Iqbal and others (PLD 1992 SC 342) wherein it was held that the High Court could not interfere in the preparation of electoral rolls. It was argued that the election schedule having been declared the new lists of voters cannot be legally used for this election. The learned counsel in this behalf referred to sections 15, 18 to 20 of the Ordinance, 1979. It was argued with reference to proviso to section 18 that no electoral roll was to be declared illegal for any omission etc., in the same. It was added that a detailed procedure for enrolment of voters has been prescribed under the Electoral Rolls Act, 1974.
15. We have given our anxious consideration to the arguments advanced on behalf of the parties, gone through the record, relevant provisions of law as well as precedents. The main question for determination in these appeals is as to whether there is any direct nexus between census and electoral lists for election to the Local Councils or not? In order to answer this question we have to first find out as to who is eligible to vote in these elections. In other words, which is the electoral college. The election to Local Councils and related matters are included in Chapter IV of the Ordinance of 1979, which include sections 12 to 35. The first provision relevant to the present controversy is section 13, which deals with the mode of election. It provides that election of members of Local Councils shall be held on the basis of adult franchise through secret ballot and according to its proviso the members against special interest seats shall be elected directly by the elected members of the Councils. Then comes delimitation of electoral units. Section 15 provides for constitution of Election Authority, whose purpose under section 17 is to ensure fair elections. This is followed by section 18, which deals with the electoral rolls. This is the main provision concerning the present controversy. The same reads as under:--
18. Electoral rolls.--The electoral rolls prepared for election of members of Provincial Assembly as amended from time to time, adjusted and arranged for a local council, shall be the electoral rolls for election to the Local Council: ' 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: ' Provided further that the corrections, if any, made in respect of any electoral roll at any time after the voters of the electoral unit have been called upon to elect its members shall not be taken into consideration till such member has been elected." ' it is clear from the above that electoral rolls prepared for election of Provincial Assemblies, as amended, shall be the electoral rolls for the elections to the Local Council. The electoral rolls for Provincial Assemblies are prepared under the provisions of Act XXI of 1974. This was enacted in pursuance of the provisions of Article 219 of the Constitution of Islamic Republic of Pakistan, 1973.
Which reads as under:-- "219. The Commissioner shall be charged with the duty of--
(a) preparing electoral rolls for election to the National Assembly and Provincial Assemblies and revising such rolls annually;
(b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and
(c) Now we proceed to refer to section 6 of Act XXI of 1974, which deals with the preparation of preliminary electoral rolls. The same is published with a notice of inviting claims and objections.
The Chief Election Commissioner appoints Revising Authority for every electoral area or group of electoral areas for purpose of receiving and deciding these objections, which are to be made in prescribed pro forma within 21 days. Section 11 deals with the transfer of votes while section 12 deals with the rejection of claims and objections. Section 13 provides for application of the persons left out due to inadvertence or absence of timely information while section 14 deals with the inquiries.
Section 15 provides for correction of electoral rolls. It is after this lengthy process that final lists are published under section 16. This is followed by annual revision of electoral rolls under section 17. It is clear from Article 219 that the Chief Election Commissioner has been entrusted with two-fold duty, namely; (i) preparation of the list, and (ii) its revision. This is the continuous process independent of any census. This is not all. This Act provides enrolment and correction of the electoral list at any time of any person. The only exception is that no correction is to be made after the constituency has been called upon to elect as per provisions of section 29. This is followed by section 21, which reads as under:--
21. Maintenance of electoral rolls.---An electoral roll as revised and corrected shall be maintained in the prescribed manner and shall be kept open to public inspection; and copies of such roll shall be supplied to any person applying therefor, on payment of such fee as may be prescribed.
The electoral roll comes into force immediately after final publication under section 16 and remains in force till revision as per provisions of section 23. The Registration Officer has access to the record of births and deaths etc. This is supplemented by the power of Chief Election Commissioner to include a name in the electoral list. The electoral list so prepared under the Act is immune from challenge as per section 29. This is one of the most important provisions and clearly excludes the possibility of setting aside the electoral roll at least in the absence of direct challenge and except in the manner provided under this Act. It would be seen that except in Articles 51(3) and 219 the word 'census' does not appear anywhere in the provisions referred to above and pertaining to the electoral rolls, its preparation and revision. In the present case, the net result of the direction of the learned Single Judge in Chambers would tantamount to scraping the existing electoral rolls. Dr. Qazi Mohy-ud-Din, Advocate rightly referred to the judgment in the case of Election Commission of Pakistan (supra). Reference is also made to the judgment in the case of Inderjit Barua and others v.
Election Commission of India (AIR 1984 SC 1912).
16. The process of delimitation precedes the issuance of a notification of election schedule. Section 6 deals with the constitution of Local Councils while section 7 deals with the revision, amalgamation and re-constitution of Local Councils. Section 8 deals with the composition of Local Councils and finally sections 9, 10 and 11 deal with the representation of Muslims, Non-Muslims and peasants etc. Respectively. The 'population' is relevant for constitution, composition and representation of different communities. The term 'population' has been defined in section 3 (xxviii) as under:- ' Section 3(xxviii)---'Population' means the population in accordance with the last preceding census officially published: ' It would be noticed that the wording in section 3 (xxviii) is the same as in Article 219 of the Constitution. The learned counsel for the respondent tried to argue that only material words are 'preceding census' while result officially published are only ministerial act, which is of no consequence. It is not possible for us to accept his argument.
17. The term 'official publication' has been defined in Words and Phrases, Permanent Edition, Volume 29-A as under:-- "OFFICIAL PUBLICATION: ' Papers embraced in exhibit, which were work of persons in employment of Government in course of performance of duties of their positions, were "official papers" and the exhibit which was published by Government printing office upon order of the Senate was an "official publication" evidencing and 'official record', within Civil Procedure Rule providing that authenticity of an official record may be evidenced by an official publication thereof. U.S. v. Aluminum Co. Of America, D.C.N.Y. 1 F.R.D. 71, 75."
' While in Black's Law Dictionary the word 'publish' has been assigned following meanings:-- "Publish"-- ' To make public; to circulate; to make known to people in general. To utter; to present (e.g., a forged instrument) for payment. To declare or assert, directly or indirectly, by words or actions, that a forged instrument is genuine. An advising of the public or making known of something to the public for a purpose. 'Publication' ."
' We may, in this behalf, refer to the judgments in the cases of Muhammad Suleman etc. v. Abdul Ghani (PLD 1978 SC 190), Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab (PLD 1977 SC 639), Mumtaz Hussain v. Chief Administrator, Auqaf Department, Lahore (PLD 1976 Lahore 1511) and Muhammad Yaseen v. James Masih and 8 others (PLD 1982 Lahore 217).
18. The question of relevancy of the census vis-a-vis the elections was directly considered by the Hon'ble Supreme Court in the judgment dated 15-12-1996 in Constitutional Petitions Nos. 62, 64 and 65 of 1996 and it was held as under:-- "8. ... ... Therefore, holding of fresh census in the country is not a condition precedent for holding of general elections."
' The same question also came for consideration in the judgment of Division Bench of Allahabad High Court in the case of Mukat Lal v. State of U.P. (1972 AU 390 at page 395) with reference to interpretation of section 11-A(2) of the U.P. Municipalities Act, 1916, which provided that representation of each ward "shall be on the basis of population of that ward as ascertained at the last census". While interpreting this provision it was held by the Allahabad High Court that the result of last census operations not having been published as required under the Census Act no question of making any fresh delimitation order can legally arise because, unless the census results are duly published as required and in the manner provided by the Census Act, section 11-A(2) of the U.P.
Municipalities Act cannot be applicable.
19. The manner in which the arguments were advanced on behalf of respondent No,1 gave impression that the census is carried out in the country for the sole purpose of elections. This impression is not correct. The census is carried out basically for formulating the policies and planning future needs of the nation in all walks of life such as housing, population, economy, health and education etc. In this behalf, we may refer to the Wharton's Law Lexicon, Fourteenth Edition, which defined census as under:-- "Census. A numbering of the people. It formally took place in the century once in every 10 years. The first was taken in 1801 under 41 Geo 3, C.15; that of 1891 on Sunday, 5th April, 1891, under the Census Act, 1890 and that of 1911 under the Census (Great Britain) Act, 1910 and the Census (Ireland) Act, 1910. The Census Act, 1920 provides that a Census may be taken, if so directed by an order in Council, at any time, provided that five years have elapsed since the last Census, and provided that a draft order has been laid before Parliament for 20 days. The early Census Acts only got at the numbers, occupations, etc. By a series of questions to overseers, clergymen, etc. ' The Act 1840 was the first to get at the same, etc. Of every person, in every house. The Act makes it penal for a person employed in the Census to communicate without lawful authority, any information acquired in the course of his employment.
' Population, for a particular purpose, is sometimes expressly directed to be ascertained by the last published census for the time being."
' The 'Census' had been defined in Aiyar's Judicial Dictionary, 10th Edition, page 201, as under:-- "Census.--A numbering of the population of a country and bringing them under various headings for the purpose of statistical reference."
20. Now coming to the census of March, 1998. The Government of Pakistan, Statistics Division, published a Notification dated 17-9-1997 whereby 'a census (the Population and Housing Census) for Pakistan was taken during the period commencing on the 18th October, 1997 to 31st March, 1998'.
On the other hand, the Punjab Local Councils Election Authority vide notification dated 13-2-1998 issued the programme for the revision and delimitation of electoral units. The process of delimitation commenced on 17-2-1998, the preliminary lists of electoral units were published on 22- 2-1998, the objections etc. Were filed by 24-2-1998 which were decided by 2-3-1998. The final list of the electoral units was issued on 7-3-1998. Therefore, for the purpose of present elections, even the census of 1998 being still in the process cannot be considered to be 'last preceding census'. As such the same was not relevant. The delimitation of electoral units under the Punjab Local Government Ordinance, 1979 had become a matter past and closed before the completion of census which could not be reopened. We may mention here that the result of a last census duly published at the most had relevancy to delimitation of electoral units but it had no nexus with the electoral roll, the preparation and revision, whereof was Constitutional duty of the Chief Election Commissioner of Pakistan as per Article 219 read with Electoral Rolls Act, 1974. The same is revised annually. Therefore, whether or not there is a census or election, the revision of the electoral roll continues for updating the same. It is clear from above that Legislature has provided a comprehensive procedure and machinery for updating the electoral rolls. For this reason also the census is not a condition precedent for the preparation or revision of the electoral rolls. There is no interdependence of electoral rolls and census.
21. The upshot of the above discussion is that the judgment of the learned Single Judge in Chambers dated 30-4-1998 is set aside by accepting this appeal with no order as to costs. The result is that the writ petition filed by respondent No,1 is dismissed.