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Writ Petition No. 475 of 1966, decided on 25th November 1966.
r. 22(5) ‑Powers of Registration Officer to make corrections and deletions of electoral roll.
Sub‑rule (5) of rule 22 enables the Registration Officer to make corrections and deletions of the electoral roll, in case of death of a voter on the electoral roll, but otherwise the prohibition in sub‑rule (3) is absolute that no application for correction can be entertained and no amendment of the electoral roll, on an application, can be made at any time after the electoral unit, to which the application relates, has been called upon to elect its representatives, and before a member of the Electoral College has been elected. Where the correction of the entry as to the age of the respondent was ordered by the Registration Officer after the date on which the electoral unit bad been called upon to elect its representatives and before a member was elected to the Electoral College, it was held that there was no manner of doubt that the correction of respondent's age was made in contravention of sub‑rule (3) of rule 22.
Ahsan Ali Mandal v. Z. A. Chaudhury, Election Tribunal, Additional Deputy Commissioner, Jessore and others P L D 1966 Dacca 41 and Munir Ahmad v. Returning Officer Karachi and others P L D 1966 Kar. 1 ref.
Arts. 157 & 158(1) Person below age of 25 years cannot be elected as member of Electoral College.
There is no warrant for the proposition that entries as to age, as recorded in the electoral roll, are final and conclusive. The electoral roll is not prepared with a view to determine the age of a particular voter. On the electoral roll are brought the names of such persons as are 21 years of age or more. It is, therefore, immaterial for the purposes of the preparation of the roll whether a voter is 22 years or 35 years of age. There is no real adjudication of the question of age by the election authorities, and the electoral roll must be considered as specifying the minimum requirement of age, which would confer on him the right to vote, but no other conclusion can flow from such an entry. The preparation of the electoral roll is a one sided affair, at which the voter may have given his own age, and to make the age final and conclusive for the Election Tribunal, or the Court, may mean placing a premium on dishonesty, and perpetuating a fraud, which a person may have practised by misrepresenting his age, in order to qualify himself for being returned as a member against the mandate of the Constitution.
A person who is not 25 years of age cannot be elected, for under Article 158 of the Constitution, he must not be less than 25.
The age of the respondent, in the instant case, as recorded in the final electoral was 24 years, and he was not, therefore qualified to be nominated or elected as a member of the Electoral College.
Ghulam Abbas v. The Additional Commissioner arid Election Tribunal Khairpur Mirs and 3 others P L D 1965 Kar. 625; Imtiazali v. Ghulam Muhammad Butt and another P L D 1958 S C‑228; Diwan Mahboob Ahmad v. The Controlling Authority, Bahawalpur and anther P L D 1961 B J 15 ; Manzoor Aleem Qureshi v. Zahur Husain and another P L D 1965 Lah. 262 ; Abdul Ghafoor v. Noor Muhammad and others P L D 1966 Lah. 423; Dost Muhammad Malik v. The Returning Officer and Sarfraz Khan Malik P L D 1965 Lah. 560; Karam Dad v. Muhammad Yaqub and others P L D 1965 Lah. 622 ; Imtiazali v. Ghulam Muhammad Butt and another P L D 1958 S C 228; Ahsan Ali v. Z. A. Chaudhury Election Tribunal, Additional Deputy Commissioner, Jessore P L D 1966 Dacca 41 and Allah Ditta v. Muhammad Munir and others P L D 1966 Lah. 770 ref.
Art. 98‑Elections can be challenged by election petition‑Order of Election Tribunal in appropriate cases, however, open to scrutiny by High Court.
When the elections have been held and candidates returned from the electoral units, then challenge to the election by election petition is open before the Tribunals. The orders of the Tribunals are then open to scrutiny by the High Court in appropriate cases under Article 98(2) of the Constitution of Pakistan.
Dost Muhammad Malik v. The Returning Officer and Sarfraz Khan Malik P L D 1965 Lab. 560 ref.
r. 7 ‑ Words "material irregularity" and "any sufficient reasons"‑Meaning.
The words "material irregularity" have obvious reference to the proceedings and conduct of the election between the contesting candidates as Chairman, but there are the words "any sufficient reason" used in addition, not without purpose.
The words "sufficient reason" are in a class different from irregularities.
If the election of a candidate as a member was opposed to the mandate in the Constitution, there was a continuing wrong in his remaining as a member, and objection could be taken to his being a member in law and his seeking election as a Chairman. Such a case would be covered by the words "any sufficient reason", which are used in rule 7 in addition to "material irregularity", and they have to be given full meaning and effect. The intention appears to be to include in their ambit all valid grounds of challenge, as are sufficient in the opinion of the Controlling Authority as a reasonable person to render the election void.
Muhammad Nawaz Khan v. Ghulam Farid and another P L D 1963 S C 623; Mehar Allah Yar v. Syed Hassan Jahanian Shah Gardezi P L D 1961 Lah. 247 and Muhammad Husain and others v. Pir Salah‑ud‑Din, Election Tribunal (Additional Deputy Commissioner Lahore) and others P L D 1960 Lah. 1130 ref.
Art. 98(2) (b) (ii)‑‑Prayer for removal of person from office as member of Union Council can be made by any person‑Grant of relief is discretionary with Court.
Allah Ditta v. Muhammad Munir and others P L D 1966 Lah. 770 ; Munir Ahmad v. The Returning Officer Karachi and others P L D 1966 Kar. 1 and Muhammad Sadeque v. Syed Rafiq Ali P L D 1965 Dacca 330 ref.
Art. 98(2) (b) (ii) Election not challenged by election petition‑Petition under Art. 98(2) (b)(ii) still competent.
Allah Ditta v. Muhammad Munir and others P L D 1966 Lah. 770 and Akbar Ali v. Razi‑ur‑Rehman Khawaja and others P L D 1966 S C 492 ref.
Jariullah Khan and Ch. Gul Muhammad for Petitioner.
Sh. Khurshid Ahmed for Respondent No. 4.
Date of hearing: 1st November 1966.
This is a writ petition by Muhammad Yusaf under Article 98 of the Constitution of Islamic Republic of Pakistan, by which he prays that the order of the Controlling Authority, respondent No. 1, be declared to be without lawful authority and of no legal effect, and further that Umar Daraz Khan, respondent No. 4, may be ordered to show under what authority of law he claims to hold the membership of Electoral Unit No. 1753, Union Committee No. 14, Lyallpur.
2. Umar Daraz Khan, respondent No. 4, was elected as a member from Electoral Unit No. 1753 to Union Committee roil, his name was 24 years, He made an application to the Registration Officer for correction of his age as 25 years, on the ground that in the original electoral roll his age was recorded as 25 years. The Registration Officer ordered on the 7th of October 1964, that the requisite correction be made. The petitioner sought election from the Electoral Unit and was declared elected. Muhammad Yusaf peti tioner, who was elected from Unit No. 1759 to the Union Commit tee No. 14, Lyallpur, contested the election of Chairman of the Union Committee, held on the 18th of January 1966, with respon dent No. 4. The latter was declared elected. In consequence, the petitioner filed an election petition before the Collector, as Controlling Authority, contending that as the respondent was not 25 years of age, when he was elected from Electoral Unit No. 1753, he was not in law a member of the Union Committee, and could not therefore, contest the election of Chairman. The petitioner relied on a certified copy of the birth entry of the respondent, showing that he was born on the 17th of December 1939, in the District of Hoshiarpur, and on a copy of an application made by his mother to the Guardian Court at Lyallpur in 1947 for the appointment of a guardian of his property, in which also the respondent's date of birth was shown by his mother as 17th of December 1939. In the copy of the voters' list produced by the petitioner before the Controlling Authority, his age was recorded as 24 years, but the respondent produced an attested copy of his entry in the electoral roll, which showed his age as 25. This was presumably the entry as corrected by the Registration Officer. Relying on Article 158 of the Constitution, it was contended on behalf of the petitioner that the respondent could neither be nominated to the Electoral College on the 15th of October 1964, nor be elected as a member in the first week of November 1964, when the election took place. The respondent relying on the other hand on the certified copy of the entry in the electoral roll produced by him, contended that the entry as to his age was final, and its correctness could not be questioned before the Controlling Authority. The Controlling Authority was impressed by the considerations that even if the objection had been taken before the Returning Officer about the correctness of this entry in the electoral roll, he could not have upheld it, or opened the question of the entries in the electoral roll, that the nomination and election of the respondent was not objected to, and that an election petition was not filed, and concluded that his election as Chairman of the Union Committee could only be upset, if his election as member of the Electoral College could be called in question at that stage. Out of the several cases cited, the Controlling Authority preferred the decision in Ahsan Ali Mandal v. Z. A. Chaudhury, Election Tribunal, Additional Deputy Commissioner, Jessore and others (P L D 1966 Dacca 41) and held that the respondent's election as Chairman of the Union Committee could not be called in question on the ground of age. This decision is impugned by this writ petition. There is a further prayer in the nature of quo warranto.
3. In Ahsan All Mandal v. Z. A. Chaudhury, Election Tribunal, Additional Deputy Commissioner, Jessore and others it has been held that an Election Tribunal under the Electoral College Act has no jurisdiction to declare an election void on the ground that the returned candidate did not have the requisite age qualification on the date of nomination; for there was no provision in the Electoral College Act that a Tribunal can go into the question of qualification of a candidate to be a member of the Electoral College, and had the Legislature intended to confer such a power, there was nothing to prevent it from making a clear provision to that effect. The age of the respondent before them recorded in the electoral roll was 27, so that the respondent satisfied the requirement of Article 158(1) of the Constitution, and the question of disobedience to the command of the Constitution did not arise. The learned Judges by attaching finality to the entry of age in view of proviso (iii) to subsection (3) of section 23 of the Electoral College Act, reached the conclusion that the question of age could not be re‑opened. Their conclusion was summarised thus:‑--
"Omission to make any mention of disqualification on the ground of age is probably due to the elaborate provision relating to the entries in electoral roll. Sufficient remedies having been made available for correction of the electoral roll, the age, as shown in the same, appears to have been taken as the conclusive evidence of the age of a candidate, and it is not contemplated in the Act that it should be re‑opened. According to entry in the electoral roll the constitutional requirement has been fulfilled. So, the question of disobedience to a command of the Constitution does not arise. Suffice it to say for that purpose the Election Tribunal has not been saddled with the responsibility of examining once again the question of age. We are of the opinion, that it has to proceed on the basis of the electoral roll."
4. As it is an admitted fact that the Electoral Unit No. 1753 was called upon to elect its representatives on the 3rd of October 1964, that the election was held on the 2nd of November 1964, and that the order of the Registration Officer directing a correction of the entry of age of respondent No. 4 was made within these dates, it is urged that the amendment of the entry being opposed to rule 22(3) of the Electoral College Rules, was illegal and without lawful authority, and thus the correct age of the petitioner to be deemed as a recorded in the Electoral Roll, is 24 years, which means that the petitioner was not qualified to be elected to the Electoral College. The relevant section in the Electoral College Act is section 8. Its subsection (1) provides for the preparation of a draft electoral roll, and its subsection (2) for the draft electoral roll to be published in the prescribed manner together with a notice inviting claims and objections with respect thereto, which shall be disposed of in such manner as may be prescribed. Its subsection (3) enables the Registration Officer to make such additions or modifications in the draft electoral roll as may be required by any decision on any claim or objection, and he may make corrections of such clerical or printing errors, as may come to his notice. He shall then publish in the prescribed manner under its subsection (4), the final electoral roll for an Electoral Unit. Its subsection (5) enables an electoral roll to be amended and corrected from time to time in the prescribed manner so as to include the name of any person who has since its preparation become qualified to be enrolled thereon or to delete the name of any person who has died or has become disqualified for enrolment. Subsection (6) directs that it shall come into force immediately upon its publication and shall as corrected under subsection (5), remain in force until revised under section 12, which means annual revision in the prescribed manner with reference to the qualifying date, or the Commissioner may at any time require the revision of an electoral roll of any unit, if he, for any reason, considers such revision to be necessary, by following the procedure provided for the preparation of the electoral rolls, as far as may be. The prescribed manner of amendment and correction, as required by subsection (5), is stated in rule 22(2) of the Electoral College Rules, which enacts as follows:‑--
"22 (2). Any person may apply to the Registration Officer for the correction of an existing entry in an electoral roll for the time being in force, and
(a) if the entry relates to the applicant and the Registration Officer is satisfied after giving such notice and making such enquiry as he may consider necessary that the entry relates to the applicant and is erroneous or defective in any particular, he shall amend the electoral roll accordingly; and
(b) if the entry does not relate to the applicant and the Registration Officer is satisfied after giving notice to the person to whom the entry relates and after making such enquiry as he may consider necessary that the entry is erroneous or defective or should be deleted, he shall amend the electoral roll accordingly."
But sub‑rule (3) of this rule enacts that no application under sub‑rule (1) shall be entertained, and no amendment under sub‑rule (2) of any electoral roll, upon any such application, shall he made, at any time after the electoral unit to which the application relates, has been called upon to elect its representatives and before a member of the Electoral College has been elected. This sub‑rule embodies the principle of finality attaching to electoral rolls, so that an election is held in time, and disputes as to entries in the electoral roll do not delay the holding of the elections. There is a specific proviso to sub‑rule (3) framed to ensure that end, namely, that no election shall be postponed on the ground that any such application is pending disposal on the day an electoral unit is called upon to elect its representatives. Sub‑rule (5) enables the Registration Officer to make corrections and deletions of the electoral roll, in case of death of a voter on the electoral roll, but otherwise the prohibition in sub‑rule (3) is absolute that no application for correction can be entertained and no amendment of the electoral roll, on an application, can be made at any time after the electoral unit, to which the application relates, has been called upon to elect its representatives, and before a member of the Electoral College has been elected. Since the correction of the entry as to the age of the respondent was ordered by the Registration Officer after the date on which the electoral unit had been called upon to elect its representatives and before a member was elected to the Electoral College, there is no manner of doubt that the correction of respondent's age was made in contravention of sub‑rule (3) of rule 22. In Munir Ahmad v. Returning Officer Karachi and others (P L D 1966 Kar. 1) it was held that no changes could be made in the electoral roll of the unit in view of the provisions contained in sub‑rule (3) of rule 22 between the date of the notification calling. upon the electoral unit to elect its representatives and before the election of a member to the Electoral College, and such being the case the Registration Officer clearly acted illegally in adding names to the electoral roll of the unit. Thus, the correction of the age of the respondent being invalid, his age as recorded in the final electoral roll if it is final, is 24 years.
5. Not only has the respondent's age as recorded in the electoral roll to be taken as 24 years, and not 25 years, but he was in fact 24 years of age on the date of his nomination and election, according to his birth entry, since he was born on the 17th of December 1939. His mother in her application to the Guardian Judge at Lyallpur made in 1947, in connection with the appointment of a guardian of his property in Lyallpur District, also mentioned his date of birth as 17th December 1939. The Controlling Authority did not doubt the genuineness or correctness of these documents as showing his correct date of birth. On behalf of the respondent, the correctness of the date of birth‑ was not challenged and no attempt was made to either produce a certified copy of his birth entry or any other evidence to indicate that he was born earlier. Even before us, no attempt has been made to prove that he was of 25 years of age or more on the date of nomination, namely, the 15th of October 1964, or of his election viz. the first week of November 1964. The main contention of respondent No. 4 before the Controlling Authority was that the entry of his age recorded in the Electoral roll was final, but even if this be so, as was held by the Controlling Authority, the age of the respondent as recorded in the final electoral roll has to be taken in law as 24 years, and h he was not, therefore, qualified to be nominated or elected as a member of the Electoral College.
6. The questions, which falls for determination before us are:
(1) Whether an entry as to age in the electoral roll is final for purposes of election; if so, what is the effect
(2) Whether the election of a successful candidate can be challenged before the Controlling Authority in an election petition under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960
(3) Whether this Court has power in exercise of powers under Article 98(2)(b)(ii) to remove the respondent No. 4 from his office as chairman and member of the Union Council on the ground that he was not qualified to be elected as a member of the Union Council, even though there was no challenge to his election in accordance with the procedure prescribed in the Electoral College Act
7. Regarding the first question, the learned counsel for the respondent relied on Proviso (iii) to subsection (3) of section 23 of the Electoral College Act, which is to the effect that the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll. This provision came up for consideration in Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others (P L D 1965 Kar. 625). Inamullah Khan, J. (as he then was), who delivered judgment of the Division Bench, observed that its effect was that the Returning Officer had no power to go into the correctness or validity of any entry in the electoral roll, the idea being that where a final roll had been prepared, the same should be taken for all intents and purposes to be conclusive, that a person who is enrolled on the electoral roll has a constitutional right to cast a vote in accordance with Article 158 of the Constitution, and to elect a member from an electoral unit, so long as his name is not removed from the electoral roll in accordance with the procedure provided in the Act, and the Election Tribunal cannot defranchise a person, whose name appears on the electoral roll, without giving him an opportunity to be heard. This decision, therefore, bears on the question of a right of a voter on the electoral roll to cast a vote and not on the question of the disqualification or lack of qualification of a person on the electoral roll to be elected as a member of the Electoral Unit. With regard to the question of personal disqualification the learned Judge referred to the observations of the learned Judees of the Supreme Court in Imtiaz ali v. Ghulam Muhammad Butt and another (P L D 1958 S C 228) and quoted with approval the observations in Diwan Mahboob Ahmad v. The Controlling Authority, Bahawalpur and another (P L D 1961 B I 15). The learned Judges of the Supreme Court observed as follows:‑
"This view is based upon a settled principle of election law that Election Commissioners cannot go behind the final electoral rolls as amended in accordance with the final orders of the revising authority. It is settled that every person whose name is entered in this electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualification."
It will be seen that this observation relates to an absoulte right of vote of a voter on a final electoral roll, except where there be a personal disqualification. A person who is not 25 years of age cannot be elected, for under Article 158 of the Constitution,, he must not be less than 25. S. A. Haq, J. in the Division Bench case of Diwan Mahboob Ahmad dealt with the question of the entries in the electoral roll in this way:
"There is no doubt that the inclusion of a person's name in the electoral roll, which has been regularly prepared in accordance with the procedure laid down in the Electoral College Act, would be conclusive proof that the person has a right to vote and such an electoral roll should be acted upon in all matters relating to the election in question. But it is an altogether different thing to assert that the electoral roll must be regarded as conclusive with regard to the individual entries ""mentioned therein, even when a question regarding any of those Individual particulars arises in proceedings which are not connected with that election. For instance, an electoral roll contains the name of the elector's father. Can it be said that such an entry must be regarded as conclusive about the parentage of the elector, in proceedings where a question about his legitimacy is being raised, for determining his right to inheritance The electoral roll may be cited as a relevant piece of evidence, but by no stretch of imagination can it be accepted as conclusive on the question of parentage. Same is the case with the entry relating to age given in such an electoral roll. The only point which is concluded by the entry in the electoral roll is that the elector must be considered as satisfying the minimum requirement of age which would confer on him the right to vote, but no other conclusion can low from such an entry. In other words, the conclusiveness, which attaches to an electoral roll, is only with regard to the right to vote enjoyed by a particular person, whose name appears in the electoral roll, but with regard to no other matter. To extend the scope of conclusiveness of an electoral roll beyond the question of the right to vote at the relevant election would mean going beyond the law under which the electoral roll is prepared, and the purpose for which it is prepared. It is thus clear that the entry of the petitioner's age in the electoral roll is not conclusive for any matter other than the one concerning his right to vote."
Thus, the principle enunciated above which was approved in Ghulam Abbas's case, was that the conclusiveness, which attaches to an electoral roll, is only with regard to the right to vote enjoyed by a particular person, whose name appears in the electoral roll, but with regard to no other matter, and an entry as to age in the electoral roll of a voter is not conclusive for any matter other than the one concerning his right to vote. This means that though the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll to view of Proviso (iii) to subsection (3) of section 23 of the Electoral College Act, a person who seeks elections to an Electoral Unit, must also be 25 years of age at the time of the election, whatever be his age recorded in the electoral roll, as was held in Manzoor Aleem Qureshi v. Zahur Husain and another (P L D 1965 Lah. 262) which judgment was delivered by one of us, for this is the requirement of Article 158(1) of the Constitution. The words "at the time of election" have been interpreted in the same case to mean the day his nomination papers are filed. Before the conclusion of the election, there is a bar to the jurisdiction of this Court and the Civil Courts contained in Article 171 of the Constitution read with section 58 of the Electoral College Act to entertain petitions relating to disputes as to the acceptance or rejection of nomination papers and allied matters, as has been held by the Full Bench in Dost Muhammad Malik v. The Returning Officer and Sarfraz Khan Malik (P L D 1965 Lah. 560) but when the elections have been held and candidates returned from the electoral units, then challenge to the election by election petition is open before the Tribunals. The orders of the Tribunals are then open to scrutiny by this Court in appropriate cases under Article 98(2) of the Constitution of Islamic Republic of Pakistan.
8. The question arises whether in the course of hearing of the election petition, the Tribunal was not competent to entertain objection as to the age of the respondent or go behind the entry as to age in the electoral roll. There is no warrant for the proposition that entries as to age, as recorded in the electoral roll, are final and conclusive. The electoral roll is not prepared with a view to determine the age of a particular voter. On the electoral roll are brought the names of such persons as are 21 years of age or more. It is, therefore, immaterial for the purposes of the preparation of the roll whether a voter is 22 years or 35 years of age. There is no real adjudication of the question of age by the election authorities, and as observed by S. A. Haq, J. the electoral roll must be considered as specifying the minimum requirement of age, which would confer on him the right to vote, but no other conclusion can flow from such an entry. The preparation of the electoral roll is a one‑sided affair, at which, the voter may have given his own age, and to make the age final and conclusive for the Election Tribunal, or this Court, may mean placing a premium on dishonesty, and perpetuating a fraud, which a person may have practised by misrepresenting his age, in order to qualify himself for being returned as a member against the mandate of the Constitution.
9. In Abdul Ghafoor v. Noor Muhammad and others (P L D 1966 Lah. 423) in an election petition under section 58 of the Electoral College Act, the main objection was that on the date of the nomination the candidates, whose election was opposed, was not of 25 years of age The Election Tribunal upheld the objection, and set aside the election of the candidate. The candidate, whose election was set aside, then filed a writ petition, and urged that the entry as to his age to the electoral roll was final, and the Election Tribunal was not competent to go behind it. The learned Judges held that the Election Tribunal could definitely go into the question of disqualification of a candidate on the ground of age. It was further held that jurisdiction of the Election Tribunal under the Electoral College Act was deliberately kept very wide and unrestricted, so as to enable it to go into all types of election disputes and a dispute as to age being essentially an election dispute, it was not reasonable to hold that it was excluded from the jurisdiction of the Election Tribunal, whereas all other sorts of election disputes were within its domain. It was further held that Article 171 of the Constitution showed that with regard to election disputes the ultimate forum was the Election Tribunal so as to make it the final arbiter, and it was the decision of this Tribunal, which was to be given finality, and not the decision of the Administrative Officers, concerned with the preparation of of the electoral roll and the conduct of the election. If from the various provisions of the Electoral College Act, it is to be concluded that finality attaches to the entries in the electoral roll, then this will mean that the mandate given by the Constitution will be defeated. In arriving at this conclusion, the learned Judges followed the Full Bench cases Dost Muhammad Malik v. The Returning Officer and Sarfraz Khan Malik, Karam Dad v. Muhammad Yaqub and others (P L D 1965 Lah. 622) and Imtiazali v. Ghulam Muhammad Butt and another and dissented from the decision in Ahsan Ali v. Z. A. Chaudhury Election Tribunal, Additional Deputy Commissioner, Jessore. It is unnecessary to reproduce the reasons recorded by my learned brother Kamran Elahi Chauhan, J. in not following the Dacca decision. With his conclusions I agree with respect. The view taken in Abdul Ghafoor's case is in conformity with the view taken in Allah Ditta v. Muhammad Munir and others (P L D 1966 Lah. 770) another Division Bench decision of this Court, in which judgment was delivered by one of us, and it was held that an entry as to age recorded in the electoral roll is not conclusive, and though under Proviso (iii) to subsection (3) of section 23 of the Electoral College Act, the Returning Officer shall not enquire into the correctness or validity of an entry in the electoral roll, the effect is not to shut out a challenge to the election of a successful candidate by an election petition or under Article 98 of the Constitution on the ground that his age was recorded in the electoral roll as 25 years or more, and since the Constitution directs that a person, who is less than 25 years of age cannot be elected as an elector, the result is that the election of a person below the age of 25 years is against the clear mandate in Article 158(1) of the Constitution, and he must be removed. Therefore, 1 have no hesitation in holding that an entry as to age in an electoral roll is not final and binding on the Election Tribual, and it is open to the Tribunal to go into the question of age to determine whether a candidate is qualified to be elected as a member in accordance with the mandate of the Constitution in Article 158(1) of the Constitution. The weight of authority being in favour of the conclusion that an Election Tribunal can go behind the entries as to age in the final electoral roll, and can unseat a returned candidate, who was not 25 years of age at the time of his election, the decision of the Controlling Authority was based, on incorrect hypothesis.
10. The petitioner challenged the election of respondent No. 4 as Chairman of Union Committee No. 14 under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules 1960, which runs:‑
"7. Election Petition.‑(1) No election of a Chairman shall be called in question except by a petition presented to the Controlling authority within thirty days of the declaration of the result.
(2) The Controlling Authority may after such enquiry as may be necessary, uphold the election of the Chairman, or declare the election as void for any material irregularity, or any sufficient reason to be recorded.
(3) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules."
When the election of a Chairman is not to be called in question except by a petition presented to the Controlling Authority, which may either uphold it or declare it as void for any material irregularity or any sufficient reason, the impression created is that the irregularity or other reason is intended to be connected with the proceedings and conduct of the election, and not the qualifications of a person to be elected to an electoral unit. The words "material irregularity" have obvious reference to the proceedings and conduct of the election between the contesting candidates as Chairman, but there are the words "any sufficient reason" used in addition, not without purpose. It has been held by the learned Judges of the Supreme Court in Muhammad Nawaz Khan v. Ghulam Farid and another (P L D 1963 S C 623) that irregularities having been separately dealt with should be deemed to have been excluded from "sufficient reason". It follows that the words "sufficient reason" are in a class different from irregularities. It has also been held in Mehar Allah Yar v. Syedl" Hassan Jahanian Shah Gardezi (P L D 1961 Lah. 247) that the two phrases have not been used synonymously and that the words "sufficient reason" have been added deliberately to widen the scope of the rule, and the powers of the Controlling Authority to invalidate the election of a Chairman. The question, therefore, falls for determination whether the ground that a person who has been elected as a Chairman was not qualified to be returned as a member of the electoral unit, is a "sufficient reason" for declaring the election void. The question is by no means easy to answer. The learned counsel for the petitioner has strongly relied on the following observations of Shabir Ahmad, J., who delivered the judgment in Muhammad Husain and others v. Pir Salah‑ud‑Din, Election Tribunal (Additional Deputy Commissioner Lahore) and others (P L D 1960 Lah. 1130) at page 1137:
"It is true that the Controlling Authority can declare an election void either for a material irregularity or for any other sufficient reason to be recorded . . . . . . No definition of the term 'sufficient reason' has been given in the relevant rules or the Basic Democracies Order 1959, but it is hardly open to question that no reason could be deemed to be sufficient unless it is such as would be accepted by a reasonable person to be of such importance or such weight as to justify the declaration that the election was void. If for example, a candidate won an election of Chairman and subsequently it had been declared that he was below the age prescribed by the relevant law as the minimum age for those who seek election as members, there would be sufficient reason for the Controlling Authority to declare the election of Chairman void, is spite of the fact that at the election of the Chairman there had been no material irregularity or any irregularity at all."
These observations are particularly attracted to the facts of this case. Though the view may be taken that the words "sufficient reason" have to be interpreted ejusdem generis as being relateable to irregularity in the conduct of the election, the interpretation placed on the words by Shebir Ahmad, J. has many advantages and has much to commend itself. If a person gets himself elected to an electoral unit, when he is below 25 years of age, there can be no two opinions that he could not have been unaware that he was not 25 years of age, and he secured his election by reason of a misrepresentation, and fraud on Article 158(1) of the Constitution, and he should not be heard to say that because his election as a member went unchallenged, an objection could not be raised that he was not in law a member of the Union Committee and not eligible to contest the election of Chairman. One stage of challenge to his election as a member was before the Election Tribunal, but before the Tribunal it was only one of the contesting candidates for election to the electoral unit, who could file an election petition. The petitioner could not have challenged his election by an election petition. When the respondent contested the election of Chairman then arose the occasion for the petitioner to show that he not being a member of the Union Committee in law, could not seek election as Chairman. The question whether he was in law a member of the Electoral College or Union Committee, was a very material one, because if he could not be so elected, not being 25 years of age, he could not contest the election of Chairman. Thus, by showing that he was not in law a member of the Union Committee, the petitioner would prove that he could not be elected as Chairman. If the election of the respondent as a member was opposed to the mandate in the Constitution, there was a continuing wrong in his remaining as a member, and objection could be taken to his being a member in law and his seeking election as a Chairman. Such a case would be covered, by the words "any sufficient reason", which are used in rule 7 in addition to "material irregularity", and they have to be given full meaning and effect. The intention appears to be to include in their ambit all valid grounds of challenge, as are sufficient in the opinion of the Controlling Authority as a reasonable person to render the election void. I am, therefore, inclined to agree with the view expressed by Shabir Ahmad, J. and hold that the respondent not being a member in law could not seek election or be elected as Chairman. This is in itself sufficient for accepting this petition, and directing the Tribunal to decide the election petition accordingly.
11. There remains to be considered the third question. The petitioner's prayer for removal of the respondent from his office as member of the Union Council, which would have the consequence of removing him as Chairman, is under Article 98(2)(b)(ii) of the Constitution of Islamic Republic o Pakistan. An application for such a prayer can be made by any person. The grant of the relief is discretionary with the Court. There are no circumstances favouring the respondent for not exercising the discretion in favour of the petitioner. There has been no delay on the part of the petitioner in filing the petition. The respondent is proved to be below 25 years of age. He could not be unaware of his age and if he secured his election, it is by misrepresentation and fraud on the Constitution. In these circumstances, by remaining a member of the Electoral College there is a continuing violation of the provisions of the Constitution and the remedy ,under Article 98(2)(b)(ii) cannot be denied to him, as was held in Allah Ditta v. Muhammad Munir and others. This case was cited with approval by Wahid ud‑Din Ahmad, J. in Writ Petition No. 1104 of 1966 (A. M. Khan Leghari, C. S. P., Lahore v. Government of Pakistan through the Secretary to Government of Pakistan, Establishment Division. Rawalpindi and others) decided by the Full Bench on the 26th of October 1966. In Allah Ditta's case, it was observed as follows:
"The respondent was elected to the Electoral College, although he lacked the necessary qualification provided by the Constitution. His remaining as a member of the Electoral College is a continuing violation of the provisions of the Con stitution and, therefore the remedy under Article 98(2)(b)(ii) is available to the petitioner and cannot be denied to him. If he did not avail of the remedy by way of an election petition, the proceedings, which he has taken, do not become incompetent. It should not be ignored in this context that what the petitioner seeks to challenge before us is not only the election of the petitioner but his continuing as a member of the Electoral College and a member of the Basic Democracy. The basis of his challenge is Article 158(1) of the Consti tution."
It may be mentioned that it has been held in Munir Ahmad v. The Returning Officer Karachi and others that a Member of the Electoral College holds a public office since he performs important public functions under the Constitution of Islamic Republic of Pakistan and accordingly, under Article 98 of the Constitution the Court has the power on the application made by any person to require a member of the Electoral College to show under what authority of law he claims to bold that office. In Muhammad Sadeque v. Syed Rafiq Ali (P L D 1965 Dacca 330) the Dacca High Court in a case of election under the Basic Democracies Order holding that the election of a person, who was disqualified to be elected under Paragraph 2(f) of the Second Schedule, Part II, was ab initio void, removed the respondent by issue of a writ in the nature of quo warranto under Article 98(2)(b)(ii) of the Constitution. It was held that the fact that his nomination paper was accepted by the Returning Officer and the District Council refused to remove him after his election, was not a ground, which the respondent could use in his favour.
12. If the respondent's election was not challenged by an election petition, the challege to his remaining as member is not barred under Article 98(2)(b)(ii) as was held in Alla Ditta v. Muhammad Munir and others. When a person is elected to the Electoral College, a challenge to his being returned as a member is open by way of election petition. The petitioner could not file an election petition as he was not one of the contesting candidates. As the Constitution gives a right to any person to institute a petition under Article 98(2)(b)(ii) requiring a person holding or purporting to hold a public office to show by what authority of law he claims to hold that office, the riche cannot be denied to him, because an election petition was not filed against the election. The reason is that the challenge under Article 98(2)(6)(11) is to the person's continuing in the public office and one of the legitimate grounds of challege is that not being validly appointed or elected to the office, he cannot hold it. I have, therefore, no hesitation in holding that this Court has the power under Article 98(2)(b)(ii) to remove the respondent from membership of the Union Council, which would mean his removal from Chairmanship of the Union Council. There has been no objection before us that Article 171 of the Constitution completely bars a challenge to the election of the respondent as a member of the Electoral College. This is not a case of an election under the National and Provincial Assemblies (Election) Act (VII of 1964), but even in respect of the case of Mian Jamal Shah cited as P L D 1966 S C 1 dealing with the question of jurisdiction, the learned Chief Justice of Pakistan observed:‑
"It must be remembered that a requirement of finality of a determination contained in the Constitution is to be placed on a wholly different and certainly at a much higher level than provi sions in sub‑constitutional statutes giving finality to the determi nation of Tribunals constituted thereunder. In the latter case, a High Court acting under Article 98 could indeed invoke its superior authority to impose upon such statutory Tribunals, despite the finality given to its determination, the requirement that its actions should be within its jurisdiction, that they could not be in defeat of that jurisdiction and that such action should be shown to have been performed with lawful authority. In the absence of a valid provision barring such interference, the High Court acting under Article 98 would, I conceive, have the authority to interpret the relevant statutes, in respect of the limitations upon jurisdiction, the obligations to exercise the jurisdiction, and the scope of the authority conferred by such statutes."
In Akbar Ali v. Razi‑ur‑Rehman Khawaja and others (P L D 1966 S C 492) the learned Judges of the Supreme Court have clarified that the effect of the decision in Mian Jamal Shah's case is not that untenable interpre tation of law by the Commission, which may amount to an excess of jurisdiction or failure to exercise jurisdiction, is not susceptible of interference by the High Court, and that if an Election Authority or a Tribunal acts on a convenient surmise, which is fully belied by intrinsic evidence, whether under the National and Provincial Assemblies (Elections) Act or the Electoral College Act, the decision in Mian Jamal Shah's case would not be an authority for the view that their decisions are sacrosanct and may not be called in question in the High Court. There is more than one reason for denying in that case that degree of finality to the decision of the Tribunal.
13. The decision of the Controlling Authority is wholly untenable in law and where the petitioner should have been declared elected as Chairman, the respondent was so declared. He was not qualified to be elected as member of the Electoral College. In consequence, I would accept this writ petition and order his removal from membership of the Electoral Unit (which would mean the Basic Democracy also) under Article 98(2)(b)(ii). I also quash the order of the Controlling Authority and direct it to decide the election petition in accordance with the law, as interpreted above. The petitioner will have his costs from Umar Daraz Khan, respondent No. 4, who alone has contested, the petition.
K.M.A. Petition accepted.
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