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Constitutional Petition No. D‑713 of 1983, decided on 22nd January, 1984.

‑‑ R. 19(3)(d)(ii)‑Provisional Constitution Order (1 of 1981), Art. 9‑Electoral roll‑Mistake in printed copy of electoral roll Original manuscript containing correct parentage of petitioner while same misprinted in printed electoral roll‑Certificate to that effect produced from Assistant Registration Officer before Return ing Officer who accepted same but appellate authority rejecting nomination paper treating defect as substantial ‑ Misprint of father's name in a printed electoral roll not a substantial defect Order of appellate authority set aside.

‑‑ Art. 9‑Sind Local Councils (Election) Rules, 1979, r. 19(3) (d)(ii)‑Constitutional jurisdiction‑Constitutional petition filed prior to date of election and prior to notification declaring respon dent as elected‑Petitioner's nomination paper having been rejected on account of defect not substantial in law, petitioner allowed by High Court to file amended petition including prayer in respect of declaration that unopposed election of rival candidate from relevant seat was illegal‑Contention that after filing of petition rival candidate declared as elected, High Court had no jurisdiction in matter and that remedy lay by filing an election petition, held, not tenable as case did not involve disputed question of fact which would have been more eminently suitable for adjudication by election tribunal.

Abbasi Abdul Majeed for Petitioner.

S. Zawar Hussain Jafery, A. A.‑G. for Respondents Nos. 1 and 2. Respondent No. 3 in person.

Date of hearing : 22nd January, 1984.

This petition is directed against the order, dated 2nd September, 1983 passed by respondent No. 2 acting as the appellate authority in Appeal No. 228/1983 filed by respondent No. 3 against the acceptance of the petitioner's nomination paper. It may be advantageous to reproduce herein below the above order, which reads as follows :‑

Appeal No. 228/1983

(1) Mr. Rughu Mal son of Newand Mal

......... Appellant

(1) Returning Officer and 11nd Additional Sessions

Judge, Sukkur.

(2) Thakardas son of Sito Mat

............ Respondents

Appeal under sub‑rule (5) of rule 19 of Sind Local Councils (Election) Rules, 1979.

Dated : 2‑9‑1983 Both sides present.

Heard.

The electoral record shows that the father's name of respondent No. 2 is ‑ Pheenomal" (Sr. No. 28 of F. Unit No. 0 of Rohri) whereas the nomination form shows it to be "Situmal". This is a major variation in father's name and not condonable under the law/rules.

The appeal accepted and the candidature of the respondent No. 2 is cancelled.

(A. W. KAZI),

Commissioner, Sukkur Division

-----------------------------------------------------------------------------------

No.228/1983 .......

Court of the Commissioner,

Sukkur.

Dated : 2‑9‑1983

(1) Copy of R. O. and IInd Additional Sessions Judge, Sukkur.

(2) Copy to appellant/respondent.

Reader to

Commissioner Sukkur Division."

It may be observed that the learned appellate authority has allowed the appeal of respondent No. 3 on the ground that in the printed copy of the electoral roll the parentage of the petitioner was incorrectly mentioned. However, it is the case of the petitioner that before the Returning Officer, a certificate from the Assistant Registration Officer whose function was to maintain electoral roll, was produced to the effect that the parentage of the petitioner in the original manuscript is correct and on that basis his nomination paper was accepted by the Returning Officer. The petitioner being aggrieved by the above order has filed the present petition on 22nd September, 1983. Since the election had taken place on 29th September, 1983 respondent No. 3 was declared as elected unopposed as there was no other candidate in the field. The petitioner, therefore, with the permission of this Court filed the amended petition on lath October, 1983 including the prayer in respect of the declaration that the unopposed election of respondent No. 3 from the minority seat from Unit No. 20 M. C. Rohri in consequence of the above impugned order, dated 2nd September, 1983 was illegal without jurisdiction and without lawful authority.

2. We had beard the arguments of the learned counsel for the peti tioner as well as of the learned A. A.‑G. and respondent No. 3 who is appearing in person on 11th January, 1984 and directed the Assistant Commissioner and Registration Officer/S.D.M. Rohri to produce the original electoral roll of Unit No. 20 Rohri (Minority). Dr. Durrani the Registration Officer/S.D:M. Rohri has produced the original manuscript before us which at Serial No. 28 contains the following entry :‑

In the printed copy of the electoral roll the father's name has been printed as Phenomal instead of Sitomal though the name of grandfather has been correctly printed i. e. Menoomal.

The question in issue before us is, as to whether the above printing mistake can be construed as any defect which is not of substantial nature and can be remedied in terms of rule 19(3)(d)(ii). It may be advantageous to reproduce herein below rule 19(3)(d) of the Sind Local Councils (Election) Rules, 1979, which reads as follows :‑

(d) the signature of the proposer or the seconder is not genuine

Provided that‑

(i) The rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper ;

(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith.

(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll."

It may be noticed that the above‑quoted clause (d) of sub‑rule (3) of rule 19 inter alia provides that the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a sub spatial nature and may allow any such defect to be remedied forthwith. It further provides that the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roil. If the peti tioner's case false under sub‑para. (ii) the Returning Officer was justified in accepting the petitioner's nomination paper but if the case of the peti tioner fails under sub‑para. (iii) the Returning Officer was not entitled to accept the petitioner's nomination paper and, therefore, appellate autho rity's order would have been legal. We are inclined to hold that the misprint of the father's name in a printed electoral roll is a defect which cannot be construed as a substantial defect as the original manuscript contains the correct parentage of the petitioner and a certificate to that effect was produced from the Assistant Registration Officer before the Returning Officer. In this view of the matter, the Returning Officer was competent in law in terms of the above‑quoted sub‑para. (ii) to accept the Petitioner's nomination paper. The appellate authority was not justified in rejecting the petitioner's nomination paper on a ground which was not substantial in nature in view of the correct pa‑‑entage in the original manuscript supported by a certificate issued by the officer concerned. It may also be mentioned that the petitioner is sitting member of the same unit.

3. However, it was contended by respondent No. 3 in person that since it is a question of correction of the electoral roll this Court has no jurisdiction and further that as he has already been declared as elected unopposed the proper remedy would be to file an election petition. It may again be observed that there is a distinction between sub‑para. (ii) and sub‑para. (iii) of sub‑rule (3) of rule 19 as highlighted hereinabove. Since the case of the petitioner falls under sub‑para. (ii) it is not question of correction of the electoral roll. The electoral roll in fact is the original manuscript which is maintained by the authority under the law which contains correct parentage of the petitioner.

4. Reverting to the second contention of respondent No. 3, it may be observed that this petition was filed prior to the date of election and prior to the notification declaring respondent No. 3 as elected. Since the petition has been allowed to be amended and as we are inclined to take the view that the appellate authority was not justified to reject petitioner's nomination paper on a ground which was not sustainable in law it, would 3 not be just and proper to dismiss the above petition merely on the ground that after the filing of the above petition, respondent No. 3 has been declared as elected unopposed. The present case does not involve adjudication of disputed question of fact which would have been more eminently suitable for adjudication by an election tribunal and we would have declined to exercise writ jurisdiction if disputed question of fact would have been involved in the present case.

5. We, therefore, allow the petition and declare the impugned order, dated 2nd September, 1983 and the subsequent action as being without, lawful authority and of no legal effect. The declaration of respondent No. 3 as elected unopposed from the seat in question is also without lawful authority and of no legal effect. The Election Authority is, there fore, directed to arrange the holding of by‑election for the Unit No. 20 (Minority) Municipal Committee, Rohri. In the circumstances of the case there will be no order as to costs.

M. Y. H. Petition accepted.

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