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Civil Appeal No. 52‑D of 1967, decided on 8th November 1968.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 19th July 1965, in Petition No. 108 of 1965).

‑ Question whether an Election Tribunal competent to enquire as to age of person whose name was brought on Electoral Roll after inquiry on the point‑Special Leave to Appeal granted by Supreme Court to consider question.

‑Entries as to age in Electoral Roll‑How far and to what extent final‑Right under Art. 157 to be enrolled in Electoral Roll and to vote at elec tion and right to contest election under Art. 158‑Right of person to vote cannot be challenged (on ground of age) after publication of final Electoral Roll‑Right to contest election‑Can, however, be challenged on ground that candidate was not qualified on ground of age to stand for candidature.

The question before the Supreme Court was whether the Tribunal, hearing an election petition was competent to enquire as to the age of the person and to set aside his election on ground that he did not possess the requisite qualification in regard to age for election to the Electoral College. It was urged before the Court that as the age of the returned candidate was shown in the final Electoral Roll to be 27 years, the Tribunal could not go behind the entry which was final

Held, the right to be enrolled as a voter is different from the right to be a candidate though the latter includes the former. The roll is prepared with a view to determining who are entitled to vote at an election and this is done after going through an elaborate procedure. to this view the right of a person whose name appears on the roll to vote cannot be questioned. This does not, however, mean that his right to be a candidate cannot be challenged on the ground that he does not possess the other qualification in this regard. The entry in respect of the actual age cannot be placed on the same footing as the other entries.

The various provisions of the Electoral College Act, 1964 and the Rules framed there under point to the conclusion that an elaborate machinery for the preparation and finalization of the electoral roll has been provided for in the Act and the Rules. In Form III one of the columns relates to the age of the elector. There is no specific provision in the Act or in the Rules directing the authorities in-charge of the preparation of an electoral roll to state the actual age of a voter. On a close scrutiny of the provisions of the Act and the Rules regarding preparation and publication of the electoral roll one is led to the conclusion that the object is to show that the persons whose names appear in the electoral roll of a particular electoral unit are entitled to vote at an election of that unit. The right of any such person to vote cannot be questioned as entries in the final electoral roll have been made after elaborate inquiry and taking into account objections and claims for the said purpose. So far as candidature for election to the Electoral College is concerned, Article 158 of the Constitution says that a person in order to be a candidate from a particular unit must not only be a voter of that unit but also must not be below twenty‑five years of age. This Article, there fore, lays down two qualifications for a candidate. He is to be a voter of the unit from which he seeks election and must not be less than twenty‑five years of age. The entries in the electoral roll are final so far as the first qualification is concerned. The r611 is prepared in order to show who are the persons entitled to vote and the entries in the same are final and cannot be questioned so far as this right goes. In regard to the second qualification though in Form III under the head age' the actual age of the voter is recorded this entry cannot be said to be final. Ascertainment of the actual age of the voter is not a necessity for the purpose of the preparation of the roll. It is enough if it is found that the person concerned is not less than twenty‑one years of age. Moreover it is not possible for anyone at this stage when a large number of persons are enrolled as voters to ascertain the actual age of each and everyone of them and then to object if the entry in the draft roll in this regard is wrong. The question as to the right to be enrolled as a voter cannot be raised after the final publication of the electoral roll. The stage for raising that question is over. The Constitution, however, requires that the candidate must possess another qualification, namely, he must not be less than twenty‑five years of age. This requirement comes into play only after a voter becomes a candidate. To require his arrival to raise this question at the time of the enrol ment of voters in anticipation that he may be a candidate, is to place on him a heavy burden which he will be unable to bear. The requirement of minimum age of twenty‑five years is a cons titutional provision. It is an essential qualification for a candidate. It is not strictly speaking a question of disqualification such as those mentioned in section 53 of the Act, but want of qualification for being a candidate. It was, therefore, not necessary to mention it as a disqualification in section 53 of the Act. The omission to make any mention of it in that section therefore is not very significant.

Gazi Nesaruddin v. A. R. Khan Election Tribunal and Addi tional Deputy Commissioner, Khulna and others 17 D L R 681; Aminuadin v. Election Tribunal, Chittagong P L D 1968 S C 235; Muhammad Tufail v. Muhammad Salim and others P L D 1967 Kar. 104 and Umar Daraz Khan v. Muhammad Yusuf and others 1968 S C M R 880 ref.

‑Election petition‑Amendment of Petition for amendment, introducing new ground, filed long after expiry of period of limitation mentioned in r. 35 Tribunal, in circumstance, held, not justified in going into new allegations introduced.

An election petition as originally filed did not contain the allegation that the returned candidate did not possess even the necessary age qualification for election. This new ground was introduced by an amendment petition but this amendment petition was moved long (more than 2 months) after the result of the election was published. The new ground introduced found favour with the Tribunal and the election was set aside. Held that since the petition for amendment which contained a new allegation was filed after the period of limitation it could not be entertained and that the Tribunal was not justified in going into the allegations contained in the same.

Sirajul Huq, Advocate Supreme Court instructed by Abdul Wadud Mallick, Attorney Supreme Court for Appellant.

Muhammad Abdul Hoque, Advocate Supreme Court instruct ed by Abdur Rab II, Attorney for Respondent No. 1.

Respondents Nos. 2 and 3: Ex parte.

Date of hearing: 9th August 1968.

This appeal by special leave is from the judgment and order of a Division Bench of the High Court of East Pakistan at Dacca.

In the last election held under the Electoral College Act (hereinafter called the Act), the appellant, the respondent No. 1 and some others were candidates from Unit No. 5 of Mirzapur Union Council No. 2, P. S. Shailkupa, District Jessore. The respondent No. 1 was declared elected. The appellant filed an application under section 58 of the Act for setting aside the election on various grounds. At the trial the only point considered was whether the respondent No. 1 had the requisite qualification in regard to age for election to the Electoral College. The Tribunal found on evidence that the respondent No. 1 was 22 years and two months old at the time of the election and therefore was disqualified under the provision of the constitution for election to the Electoral College. The election, therefore, was set aside. The finding of the Election Tribunal was challenged in the High Court under Article 98 of the Constitution on two grounds. It was urged that as the age of the respondent No. 1 was shown in the electoral roll as twenty‑seven years, the Tribunal could not go behind that entry. It was further contended that as the question of age was not raised in the original election petition and the petition for amendment filed in this regard was never disposed of and nor brought to the notice of the respondent No. 1 and was filed after the period of limitation for filing an election petition the question could not be gone into by the Tribunal. Both these grounds found favour with the learned Judges of the High Court and they therefore set aside the order of the Tribunal and declared the same as void and of no legal effect.

Leave was granted to consider "whether an Election Tribunal is competent to enquire as to the age of a person whose name was brought on the electoral roll after inquiry on the point".

In the High Court of East Pakistan there has been divergence of opinion with regard to this point. After the judgment under appeal had been delivered this question came up for consideration in the case of Gazi Nesaruddin v. A. R. Ahan, Election Tribunal and Additional Deputy Commissioner, Ahulna and others (17 D L R 681) by another Division Bench of which I was a Member. On an examination of the relevant provisions of the Constitution, the Act and the rules framed there under, we came to the conclusion that if a person who did not possess the qualification laid down in the Constitution, regarding age got himself elected and his rival failed to object to the entry as to his actual age when the electoral roll was prepared or to object to his nomination, the latter would not be debarred from challenging the former's election under section 58 of the Act. Despite our difference with the earlier decision, the question was not referred to a Full Bench as we found that the Tribunal's finding on merits was sufficient for disposal of the petition under Article 98 of the Constitution. Later, however in a number of petitions being Petitions Nos. 261 of 1965, 377 of 1965 and 578 of 1965, a Full Bench of three Judges considered the question: "Is an Election Tribunal constituted under section 59 of the Electoral College Act is competent to consider the question whether a candidate at the election was qualified under the Constitution to stand as a candidate" Two of the learned Judges agreed with the view taken in the case of Gazi Nesaruddin referred to earlier, Abdulla, J. who dissented from the majority view and agreed with the judgment under appeal came to the conclusion that the view taken by him received support from the decision of this Court in the case of Aminuddin v. Election Tribunal, Chittagong (P L D 1968 S C 235).

In the west Pakistan High Court the point came up for consideration by a Full Bench in a slightly different form in the case of Muhammad Tufail v. Muhammad Salim and others (P L D 1967 Kar. 104). The question raised was: "Whether in view of proviso (III) to ‑subsection (3) of section 23 of the Act, the entry relating to a person's age in the electoral roll of the unit concerned is final an the matter of his candidature for election to the Electoral ‑College of Pakistan under Article 158 of the Constitution or whether it is open to .a Returning Officer for deciding this question to go behind the entry appearing in the relevant electoral roll on an objection being taken in this behalf". Two of the learned Judges (Waheeduddin Ahmad and Anwarul Haq, JJ.) took the view that the finality which attaches to the entries in the electoral roll must be confined to the object and the purpose for which the electoral roll is prepared, namely, to confer the right to vote on the basis of adult franchise as contained in Article 157 of the Constitution. The elaborate machinery in the Act and the rules for the preparation, finalization and revision of the electoral roll is directed towards one end and one end alone, namely, to ascertain whether a person is or is not qualified to be enrolled as a voter. They ‑therefore found that the finality which attaches to the electoral roll and the restraint which is placed on the Returning Officer under the third proviso to the third subsection of section 23 of the Act must be interpreted to mean that the Returning Officer shall not question the right to vote of either the ;candidate or his proposer or seconder while scrutinising a nomination paper. If, however, an objection is raised regarding the fulfilment by a candidate of the requirement of age as prescribed by clause .l of Article 168 of the Constitution it is incumbent upon the Returning Officer to satisfy himself that the requirement is in fact fulfilled anti in doing so he can go behind the entry of age appearing in the electoral roll. Qadeeruddin, J. who disagreed with the majority view found That the unambiguous language of the Act contained in proviso (III) to subsection (3) of section 23 makes the entry of the age in the electoral roll serviceable firstly for the, purpose of discovering the qualified voters and secondly for the purpose of discovering those of their who possess the qualification of age for being candidate. It is final at the time of the scrutiny of nomination papers because the language of the law makes it so unambiguously.

In the present case the learned Judges of the High. Court in support of their conclusion, namely, that the entry in regard to the actual age of a candidate in the electoral roll is final and cannot be questioned in an election petition have mainly relied upon the provisions of the Act and the Rules relating to preparation, finalization and revision of the electoral roll. Their conclusion is that the various stages in connection with the publication * of the final electoral roll clearly indicate that the entries therein including the one relating to the actual age of a person are , to, be final and cannot be challenged either at the time of the scrutiny of the nomination: papers. or in any, election petition.

Article 157 of the Constitution provides:

Except as provided by law, any citizen‑

(a) who is not less than twenty‑one years of age;

(b) who is not of unsound mind; and

(c) who is a resident of, or who is de.‑med by law to be w resident of, an electoral unit, shall be entitled to be enrolled on the electoral roll for that electoral unit.

Subsection (1) of section 8 of the Act directs the Registra tion Officer to prepare for each electoral unit in the prescribed manner a draft electoral roll containing the name of every, citizen who on the qualifying date is not less than twenty‑one years of age; is not of unsound mind and is, or is deemed under section 10 to be a resident of the electoral unit. Sub sections (2) and (3) provide that the draft electoral roll prepared is to be published for inviting claims and objections for making additions or modifications: After the disposal of claims and, objections the final electoral roll is to be published as provided in subsection (4) of the said section. Subsection (5) lays down that the final electoral roll may be amended or corrected from time to time 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.

Section 86 of the Act provides that the Central Government may, after consultation with the Election Commissioner, make rules for carrying out the purposes of the Act. Persuant to this provision, rules have been framed and they are known as Electoral College Rules, 1964. Rule 8 lays down that as soon as may be after the draft electoral roll for an electoral unit is ready, the Registration Officer shall publish it in Form‑Ill: together with a notice inviting claims and objections. Rule 8 says that the Commissioner shall, for a group of electoral units, appoint a Revising Authority for the purpose of deciding claims and objections with respect to the electoral rolls for such units included in that group. Rule 13 of the Rules provides that the decisions of the Registration Officer shall be final. In, rule 14, an appeal is provided against a decision of the Registration Officer to the Revising Authority.

These provisions point to the conclusion that an elaborate machinery for the preparation and finalization of the electoral roll has been provided for in the Act and the Rules. In Form‑III one of the columns relates to the age of the elector. There is no specific provision in the Act or in the Rules directing the authorities in-charge of the preparation of an electoral roll to state the actual age of a voter.

On a close scrutiny of the provisions of the Act and the rules regarding preparation and publication of the electoral. roll we are led to the conclusion that the object is to show that the persons whose names appear in the electoral roll of a particular electoral unit are entitled to vote at an election of that unit. The right of any such person to vote cannot questioned as entries in the final electoral roll have been made after elaborate inquiry and taking into account objections and claims for the said purpose. So far as candidature for election to the Electoral College is concerned, Article 158 of the Constitution says that a person in order to be a candidate from a particular unit must not only be a voter of that unit but also must not be below twenty‑five years of age. This article, therefore, lays down two qualifications for a candidate. He is to be a voter of the unit from ‑ which he seeks election and must not be less than twenty‑five years of age, The entries in the electoral roll are final so far as the first qualification is concerned. The roll is prepared in order to show who are the persons entitled to vote and the entries in the same are final and cannot be questioned so far as this right goes. In regard to the second qualification though in Form‑III under the head' age' the actual age of the voter is recorded this entry cannot be said to be final. Ascertainment of the actual age of the voter is not a necessity for the purpose of the preparation of the roll. It is enough if it is found that the person concerned is not less than twenty‑one years of age. Moreover, it is not possible for anyone at this stage when a large number of persons are enrolled as voters to ascertain the actual age of each and everyone of them and then to object the entry in the draft roll in this regard is wrong.

In the case of Syed Aminuddin Chaudhry v, Election Tribunal, Chittagong this Court considered the scope of inquiry in an election petition wherein an election was called in question under section 58 of the Act on the ground that the successful candidate was not entitled to be enrolled as a voter in the unit from which he was elected. It was observed :‑

"The only conclusion therefore which can be arrived at from the general scheme of procedure as to preparation of the electoral roll is that if a person is entered in the electoral roll in contravention of the provisions of the Act and the Rules, the only remedy to the persons objecting to the same is by way of objection under the rule and that if the said remedy is not availed of the electoral roll becomes final and conclusive as to his qualification and the Election Tribunal is therefore precluded from enquiring into the question of his possessing necessary qualifications as a voter. The electoral roll as revised by the Revising Authority would therefore, be binding on the Tribunal except as regards statutory disqualifications. In other words, if a person's name is entered in the electoral roll maintained under the law and if he is not under any statutory disqualification he becomes ipso facto qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualifications."

The above observation really indicates that a person whose name appears in the electoral roll of a unit is entitled to seek election to the Electoral College from that unit and this right cannot be challenged unless he suffers from any statutory disqualification for being a candidate. The question as to the right to be enrolled as a voter cannot be raised after the final publication of the electoral roll. The stage for raising that, question is over. The constitution, however, requires that the candidate must possess another qualification, namely, he musts not be less than twenty‑five years of age his requirement comes into play only after a voter becomes a candidate. To require his rival to raise this question at the time of the enrolment of voters in anticipation that he may, be a candidate, is to place on him a heavy burden which he will be unable to bear.

The statutory provisions to which reference has already been made clearly point to the conclusion that the right to be enrolled as a voter is different from the right to be a candidate though the latter includes the former. The roll is prepared with a view to determining who are entitled to vote at an election and this is done after going through an elaborate procedure. In this view the right of a person whose name appears on the roll to vote cannot be questioned. This does not, however, mean that his right to be a candidate cannot be challenged on the ground that he does not possess the other qualification in this regard. The entry in respect of the actual age cannot be placed on the same footing as the other entries.

The learned Judges in the High Court have observed that the omission to make any mention of disqualification on the ground of age in section 53 of the Act which enumerates the disqualifications of a candidate is significant. According to them this is due to the elaborate procedure that has been provided relating to entries in the electoral roll. They have found that since sufficient remedies have been made available for correction of the electoral roll, the age as shown in the same must be taken to be conclusive evidence of age of a candidate and is not liable to be re‑opened in an election petition. The requirement of minimum age of twenty live years is a constitu tional provision. It is an essential qualification for a candidate. It is not strictly speaking a question of disqualification butt) want of qualification for being a candidate. It was, therefore, Pot necessary to mention it as a disqualification in section 53 of the, Act. The omission to make any mention of it in that section does not point to the conclusion at which tire learned Judges arrived

The view taken in this case receives support from .the decision of this Court in the case of Umar Daraz Khan v. Muhammad Yusuf and others (

1968 S C M R 880).

In this case the appellant Umar Daraz Khan's name appeared in the electoral roll of Unit No. 1753 of Lyallpur City and his age after correction was shown as twenty‑five years. He was elected from that unit and the respondent Muhammad Yusuf was elected from unit No. 1759, Lyallpur city.

In the election to the office of the Chairman for the Union Committee comprising these electoral units the appellant Umar Daraz Khan was elected Chairman. The respondent Muhammad Yusuf then challenged his election in an election petition filed under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 before the Controlling Authority i.e. the Deputy Commissioner, Lyallpur on the ground that Umar Daraz Khan was less than twenty‑five years in November 1964 when he sought election to the Electoral College.

The Controlling Authority relying on the decision under appeal held that he had no Jurisdiction to go into the question of age in view of the entry relating to age in the electoral roll. A Division Bench of the High Court of West Pakistan, Lahore, however, in the writ petition filed by Muhammad Yusuf, set aside the above order and directed the Controlling Authority to decide the election petition in accordance with the law. Fazle‑Akbar, J. (as he then was), after referring to the passage in the case of Syed Aminuddin Chaudhry which I have already quoted and another observed as follows:‑

"In the light of the above observations, there can be no doubt that in an election petition the Tribunal is competent to enquire it the successful candidate possesses the qualifi cations as laid down in the Constitution or not. Hence, he High Court has rightly held that the Controlling Authority was not justified in dismissing the petition on the ground that he bad no jurisdiction to enter into the question whether the successful candidate, possessed the age qualification or not."

The finding of the High Court that the Election Tribunal cannot go behind the entry in the electoral roll with regard to he actual age of a candidate cannot be sustained.

We have already noticed that the learned Judges found that the

allegation that the respondent No. 1 did not possess the necessary age qualification for election was not made in the original election petition and the petition for amendment in this regard was filed alter the period of limitation. The result of the election was published in the Dacca Gazette, Extraordinary, on the 11th November 1964. The petition for amendment was tiled on the 22nd January 1965. Sub‑rule (1) of rule 35 of the Rules lays down that an election petition shall be presented within 30 days next after the publication of the result under subsection (2) of section 45 by the Returning Officer in the official Gazette. 'The petition for amendment which contained a new allegation, was filed after the period of limitation. It could not be entertained and the Tribunal was not justified in Doing into the allegation contained in the same. The facts that the allegation related to the want of a constitutional qualification and the allegation was gone into by the Tribunal will not make any difference in this case.

The result therefore is that though we have found that the Election Tribunal was competent to go into the question of the actual age of respondent No, 1 in spite of the entry in the electoral roll, this appeal must fail in view of our finding that the Tribunal was not justified in the facts and the circumstances of this case in going into it. Having regard to the facts of this case we direct that the parties do bear their own costs throughout.

K. B. A.

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