PLJ 1998 Lahore 1286 (DB)
Present: IHSAN-UL-HAQ CHAUDHARY AND FAQIR MUHAMMAD KHOKHAR, JJ.
PROVINCE OF
PUNJAB-Appellant
versus
IMRAN
KHAN--Respondent I.C.A. No.
337 of 1998, accepted on 8.5.1998.
(i) Constitution of Pakistan 1973--
-—Art. 219, 51(3) read with S. 18 of Punjab
Local Government Ordinance 1979 and Electoral Rolls Act XXI of 1974-Local Bodies
Election-Holding of Local Bodies election subject to preparations of new electoral rolls
on basis
of census carried out in March 1998-Petition for-Acceptance of-Challenge to-Whether
there is any direct nexus between census and electoral lists for election to Local
Councils—Question of—S. 18 of Punjab Local Government Ord. 1979 provides that
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 electoral rolls for election to Local
Council-Electoral- rolls for Provincial Assemblies are prepared under
Provisions of Act XXI of 1974—This was enacted in pursuance of
provisions of Art. 219 .of Constitution of Pakistan, 1973— Under Art. 219(a)
Election Commissioner shall be charged with duty of preparing electoral
rolls for election to National Assembly and Provincial Assemblies, and
revising such rolls annually-S. 6 of Act XXI of 1974, deals with preparation
of preliminary electoral rolls-Same is published with
a notice of
inviting claims and
objections-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 performa within 21 days-Electoral Roll comes into force immediately
after final publication u/s 16 and remains in force till revision as per provisions of
S. 23-Registration Officer has access
to record of
births and deaths
etc.-This is supplemented by power
of Chief Election Commissioner to include a name in electoral list—Electoral list so
prepared under Act is immune from challenge as per S. 29-This is one of most important
provisions and clearly exclude possibility of setting aside electoral roll at least in
absence of direct challenge and except in manner provided under this Act—Except
in Art.
51(3) and 219 word 'census'
does not appear anywhere in provisions pertaining to electoral rolls, its
preparation and revisionirection of learned single judge in chamber would
tantamount to scraping existing electoral rolls-Census is not a condition precedent
for preparation
or revision of electoral rolls-There is no interdependence of electoral roll and census-Appeal
accepted and judgment of learned single judge in chamber is set aside.
[Pp. 1293, 1294, 1295 1297 & 1298] A, B,
C, D, E, F & L
(ii) Punjab Local
Government Ordinance, 1979 (VI of 1979)--
—-S. 3
(xxviii)-Population-Term 'population' has been defined in S. 3(xxviii> of Punjab
Local Government Ordinance, 1979 as population in accordance with last
preceding census officially published. [P. 1295] G
(iii) Words and
Phrases-
—-"Official
publication" Papers embraced in exhibit, which were work ofpersons in employment
of Government in course of performance of dutiesof their positions were "official
papers" and exhibit which was publishedby government printing office upon order of
senate was an "officialpublication" evidencing and "official
record" within civil procedure ruleproviding that athenticity of an official
record may be evidenced by anofficial
publication there. [Pp. 1295 & 1296] H
(iv) Words and Phrases-
—"Publish"—To
make publish: 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 public or
making known of something to public for a purpose, Black's Law Dictionary.
[P. 1296]!
(v) Words and Phrases--
--ns'is -:\
rn.tmbering of people-It formally took place in century onceit! tneiy
10 years-First was taken in 1801 under 41 Geo 3, C.15; that of1891 on Sunday, 5th April, 1891, under Census Act,
1890 and that, of1911 under census
(Great Britain) Act, 1910 and census (Ireland) Act,1910-Census Act, 1920 provides that a census may be
taken, if sodirected by an order in
council, at any time, provided that five years haveelapsed since last census, and provided that a
draft order has been laidbefore parliament for 20 days-Early census Acts only
got at numbers,occupations, etc: by a
series of questions to overseas, clergymen, etc;—Act1840 was first to get at same, etc.-Of every
person, in eveiy house—Actmakes it.
penal for a person employed in census to communicate without
lawful authority, any information required in course of his employraent--Wharton's Law Lexicon, Fourteenth Edition. [P. 1297] J
lawful authority, any information required in course of his employraent--Wharton's Law Lexicon, Fourteenth Edition. [P. 1297] J
(vi) Words and Phrases--
—-"Census"--A
numbering of population of a country and bringing themunder various headings
for purpose of statistical reference Aiyai s
Judicial Dictionary, 10th Edition pages 20/-. [P. 1297] K
Judicial Dictionary, 10th Edition pages 20/-. [P. 1297] K
Kh. Muhammad Sharif, A.G. and Rana Muhammad Arif Additional
A.G. for
Appellant.
M/s Hamid Khan & Farooq Amjad Mir, Advocates for
Respondent, Dr. Qazi Mohy-ud-Din, Advocate for Election Authority. Date of
hearing : 8.5.1998.
judgment
Ihsan-ul-Haq
Chaudhary, J.--It is proposed to dispose of 1C "'-Nos. 337/98 and
370/98 by one judgment because common questions of la and fact are involved.
2.
The relevant facts are that respondent No. 1 filed Constitution h petition, wherein it was prayed that the
decision of the Federal Government dated 18.12.97 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 t.h census and correction of electoral rolls by
respondent No. 3 accordingly. Th respondent
No. 1 had impleaded Federation of Pakistan through Secrete rj. Cabinet Division, Punjab Province
and Chief Election Commissioner a; 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 learn( ; Single
Judge in Chambers accepted the Writ Petition vide order dar 30.4.1998, which has been challenged by the Province of Punjab through ,••• present appeal. The same came up for hearing on 4.5.1998 when it v noticed that certified copy of the judgment had
not been enclosed with me> of
appeal. We sent for the original file to proceed with the appeal and fou that,
the judgment was not ready. In the circumstances, the appeal and otl.<
connected matters were adjourned for 5.5.1998, when we were informed th, the judgment was yet not complete. However, the
learned Advocate Genera argued that
since it was an urgent matter, therefore, we could proceed wit! the hearing of the arguments even in the absence of
copy (certified uncertified) of the
judgment of the learned Single Judge in Chambers. I; this behalf, reliance was placed on Mst. Safia
Begum vs. Taj Din and tir others
(1993 S.C.M.R. 882).
3, In this view of the matter, we decided to hear the
arguments. Theappeals and other connected
matters were treated as 'notice' cases with the
concurrence of the parties. We have heard the parties at some length andadjourned these matters to 8.5.1998 for the remaining arguments and to
wait for the judgment by the learned Single Judge in Chambers. We havereceived the file alongwith judgment and heard the parties at length.
concurrence of the parties. We have heard the parties at some length andadjourned these matters to 8.5.1998 for the remaining arguments and to
wait for the judgment by the learned Single Judge in Chambers. We havereceived 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 onthe 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 Councilswere dissolved by the Care-taker Government in 1993 and since thenelections, have not been held. If the impugned direction is not set-aside, itwill not be possible to hold elections for another 1% years as this was theminimum time likely to be taken to tabulate the census data. It was arguedthat census had nothing^to do with the elections of the Local Councils. It wasadded that, under Article 219 of the Constitution of Islamic Republic ofPakistan, 1973 the Chief Election Commissioner has been charged with theduty of preparing electoral roll for elections to the National and ProvincialAssemblies and revising such rolls annually. According to Section 18 of thePunjab Local Government Ordinance, 1979, the lection to the LocalCouncils was to be held as per electoral rolls prepared by the Chief ElectionCommissioner for Provincial Assemblies. In this behalf, the learnedAdvocate 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 preparationof preliminary electoral roll etc. He also referred to Article 51(3) of theConstitution 1973. It was argued that the seats in the National Assembly areallocated to each Province etc. on the basis of population in accordance withthe last preceding census officially published. It was added that the same
term has been used in the definition of 'population' as given in Section3(xxviii) Ordinance 1979. The next argument was that the Local CouncilsElections were held in 1979 and 1983 under the Martial Law while MuslimLeague Government held the elections in 1987 and 1991. The last LocalCouncils were not allowed to complete their normal tenure. Thereafterinspite of the directions of the superior Courts the Government in power didnot hold elections instead in order to defeat the judgment of the Hon'bleSupreme Court, the Punjab Local Government (People) Act, 1996 was
promulgated. The other argument was that election process started inFebruary 1998 but the respondent-writ petitioner remained a silent
spectator. Now when even the symbols have been allotted to the candidatesfor 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 electionprocess has started, the same cannot be stopped. The learned Advocate
General, in this behalf referred to the cases of Khawaja Muhammad Sharifvs. Federation of Pakistan and IS others (PLD 1988 Lahore 725), Federation
of Pakistan and others vs. Haji Muhammad Saifullah Khan and others (PLD1989 SO 166') and Emmanual Masih vs. 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. In was argued that no political party worth the name could afford to oppose election process. It was added that the Writ Petitioner and his party-men 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.
the election of Local Bodies subject to preparations of new electoral rolls onthe 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 Councilswere dissolved by the Care-taker Government in 1993 and since thenelections, have not been held. If the impugned direction is not set-aside, itwill not be possible to hold elections for another 1% years as this was theminimum time likely to be taken to tabulate the census data. It was arguedthat census had nothing^to do with the elections of the Local Councils. It wasadded that, under Article 219 of the Constitution of Islamic Republic ofPakistan, 1973 the Chief Election Commissioner has been charged with theduty of preparing electoral roll for elections to the National and ProvincialAssemblies and revising such rolls annually. According to Section 18 of thePunjab Local Government Ordinance, 1979, the lection to the LocalCouncils was to be held as per electoral rolls prepared by the Chief ElectionCommissioner for Provincial Assemblies. In this behalf, the learnedAdvocate 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 preparationof preliminary electoral roll etc. He also referred to Article 51(3) of theConstitution 1973. It was argued that the seats in the National Assembly areallocated to each Province etc. on the basis of population in accordance withthe last preceding census officially published. It was added that the same
term has been used in the definition of 'population' as given in Section3(xxviii) Ordinance 1979. The next argument was that the Local CouncilsElections were held in 1979 and 1983 under the Martial Law while MuslimLeague Government held the elections in 1987 and 1991. The last LocalCouncils were not allowed to complete their normal tenure. Thereafterinspite of the directions of the superior Courts the Government in power didnot hold elections instead in order to defeat the judgment of the Hon'bleSupreme Court, the Punjab Local Government (People) Act, 1996 was
promulgated. The other argument was that election process started inFebruary 1998 but the respondent-writ petitioner remained a silent
spectator. Now when even the symbols have been allotted to the candidatesfor 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 electionprocess has started, the same cannot be stopped. The learned Advocate
General, in this behalf referred to the cases of Khawaja Muhammad Sharifvs. Federation of Pakistan and IS others (PLD 1988 Lahore 725), Federation
of Pakistan and others vs. Haji Muhammad Saifullah Khan and others (PLD1989 SO 166') and Emmanual Masih vs. 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. In was argued that no political party worth the name could afford to oppose election process. It was added that the Writ Petitioner and his party-men 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 itsresult has nothing to
do with the preparation of electoral roll under Sections17 and 18 of the Electoral Rolls Act, 1974. It was
argued that the preparationof
electoral roll was a continuous, process while census has to be carried outafter every 10 years.
6. Ch. Naseer Ahmad Bhutta, Advocate in ICA No. 370/98
arguedthat three elections have been
held on the basis of 1981 census. The electionprocess started in February 1998. The citizens have a right to elect
theirrepresentatives while no citizen
is to be deprived of his right of vote or
disfranchised. It was argued that the voters lists have been up-dated evenafter 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 in1979 the Lahore Municipal Corporation had only 100 wards, which have
now been increased to 250. It was argued that the election started with thedelimitation process; the census has no nexus with the same and the finalphase started with the filing of nomination papers. Now only the voters wereto cast their votes in favour of candidates of their own choice. It was argued
that the voters lists were up-to-date as is clear from the fact that, only withinthe Municipal Area of Lahore One Lac new voters had been registered. It,
was argued that making the election subject to the preparation of fresh listsof voters in accordance with the result of the census 1998 whenever availablewas not, justified.
disfranchised. It was argued that the voters lists have been up-dated evenafter 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 in1979 the Lahore Municipal Corporation had only 100 wards, which have
now been increased to 250. It was argued that the election started with thedelimitation process; the census has no nexus with the same and the finalphase started with the filing of nomination papers. Now only the voters wereto cast their votes in favour of candidates of their own choice. It was argued
that the voters lists were up-to-date as is clear from the fact that, only withinthe Municipal Area of Lahore One Lac new voters had been registered. It,
was argued that making the election subject to the preparation of fresh listsof voters in accordance with the result of the census 1998 whenever availablewas not, justified.
7. On the other hand, Mr. Hamid Khan. Advocate argued
that tnt-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 of1998 census. It was added that the Chief Election Commissioner has been
charged with two fold duty under Article 219(a) namely. (1) preparation ofthe rolls, and fii) annual revision. It was argued that as per Article 51(3) theallocation of the seats depended on the result, of census. It was added that asper Sections 6 and 9 of the Punjab Local Government, Ordinance. 1979(hereinafter to be referred as Ordinance of 1979) the constitution of LocalCouncils was to depend on the 'population', therefore, it had direct nexuswith the census in the country. It was argued that under Section 11 of TheCensus 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 isto h» carried on the basis of last preceding census. Therefore, for elections to be lu-id 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 hecause 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.
to revision/updating of the electoral roll/voters lists on the basis of result of1998 census. It was added that the Chief Election Commissioner has been
charged with two fold duty under Article 219(a) namely. (1) preparation ofthe rolls, and fii) annual revision. It was argued that as per Article 51(3) theallocation of the seats depended on the result, of census. It was added that asper Sections 6 and 9 of the Punjab Local Government, Ordinance. 1979(hereinafter to be referred as Ordinance of 1979) the constitution of LocalCouncils was to depend on the 'population', therefore, it had direct nexuswith the census in the country. It was argued that under Section 11 of TheCensus 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 isto h» carried on the basis of last preceding census. Therefore, for elections to be lu-id 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 hecause 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 ofelections, 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 setup. It was added that the holding of election under electoral rolls prepared onthe basis of 1981 census would amount to deprive 40% to 50% population ofits participation in the Local Councils. It was argued that in Section 3 (xxviii)of Ordinance. 1979 the primary focus was on the words 'last precedingcensus' while the later requirement of publication is only ministerial act. Itwas added that if the Government was allowed to hold the election on thebasis of 1981 census, this would amount, to taking benefit of its ownnegligence and inefficiency in compiling and publishing the result of census.
object of Local Councils, which are the basic institutions in a democratic setup. It was added that the holding of election under electoral rolls prepared onthe basis of 1981 census would amount to deprive 40% to 50% population ofits participation in the Local Councils. It was argued that in Section 3 (xxviii)of Ordinance. 1979 the primary focus was on the words 'last precedingcensus' while the later requirement of publication is only ministerial act. Itwas added that if the Government was allowed to hold the election on thebasis of 1981 census, this would amount, to taking benefit of its ownnegligence 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. Inthis behalf, reliance was placed on Al-Jehad Trust
vs. Federation ofPakistan and others (PLD
1996 SC 324). It was added that interpretation,
which was beneficial, to be adopted. In this behalf, reliance was placed onMessrs V.N. Lakhani & Company vs. m.v. Lakatoi Express and 2 others(PLD 1994 SC 894). It was argued that while interpreting statutesconsequences should be kept in mind. Reliance was placed on Johson andanother vs. Moreton (1978) 3 AER 37 (at page 42) and Stock vs. Frank JonesI'Tipton) Ltd. (1978) 1 AER 948 (at page 953). It was submitted that, if anyterm or word is capable of more than one meaning then the meaning, whichwere reasonable and just were to be adopted. In this behalf, reliance was
placed on H.H. Maharqjadhiraja Madhav Rao Jivaji Rao Scindia Bahadurand others etc. vs. Union of India (AIR 1971 SC 530).
which was beneficial, to be adopted. In this behalf, reliance was placed onMessrs V.N. Lakhani & Company vs. m.v. Lakatoi Express and 2 others(PLD 1994 SC 894). It was argued that while interpreting statutesconsequences should be kept in mind. Reliance was placed on Johson andanother vs. Moreton (1978) 3 AER 37 (at page 42) and Stock vs. Frank JonesI'Tipton) Ltd. (1978) 1 AER 948 (at page 953). It was submitted that, if anyterm or word is capable of more than one meaning then the meaning, whichwere reasonable and just were to be adopted. In this behalf, reliance was
placed on H.H. Maharqjadhiraja Madhav Rao Jivaji Rao Scindia Bahadurand others etc. vs. Union of India (AIR 1971 SC 530).
10. It was argued with reference to Article 32 that.
State shallencourage local Government
institutions and the emphasis was on 'areasconcerned'. It was added that it was not possible to demarcate the areaseffectively without the result of census.
Similarly, the status
of LocalCouncils could not be
determined without exact figure of population beingavailable. It was argued that these institutions
are of basic tier of the
democracy as they were to deal with the basic needs like health andeducation of the community. The delimitation of the electoral units bad to becarried out on the basis of the population. It was argued that after the decision of Hon'hle Supreme Court in the case of Mian Muhammad Nawaz Sharif vs. 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 us. Federation of Pakistan (PLD 1998 SC 161). It was argued that there is clear nexus between the result of census and electoral rolls.
democracy as they were to deal with the basic needs like health andeducation of the community. The delimitation of the electoral units bad to becarried out on the basis of the population. It was argued that after the decision of Hon'hle Supreme Court in the case of Mian Muhammad Nawaz Sharif vs. 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 us. 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 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 inrespect of
General Elections in the cases of Kh. Muhammad Sharif and HajiSaifullah was not applicable to the Local Councils
in view of the provisions ofArticle
48 whereby the election was to be held within 90 days and Article 86,according to which Federal Government cannot
authorize expenditure formore than 4
months. It was added that the word 'area' appearing in Article32 is veiy important and the same was to be read
with Section 3(11) ofOrdinance, 1979.
12. Kh.
Muhammad Sharif, learned
Advocate General whilesumming 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 dictionarymeaning. The same came up for interpretation in the judgments reported asMohtarma Benazir Bhutto vs. The President of Pakistan (PLD 1992 SC 492)and Mumtaz Hussain vs. Chief Administrator, Auqaf Department, Lahore(PLD 1976 Lahore 1511). It was argued that the census had no nexus withthe electoral roll, which continuously remain under process in view of theprovisions of Act XXI of 1974.
available for election purposes only after publication. He added that the word'Publication' has not been defined. Therefore, it has to be given its dictionarymeaning. The same came up for interpretation in the judgments reported asMohtarma Benazir Bhutto vs. The President of Pakistan (PLD 1992 SC 492)and Mumtaz Hussain vs. Chief Administrator, Auqaf Department, Lahore(PLD 1976 Lahore 1511). It was argued that the census had no nexus withthe electoral roll, which continuously remain under process in view of theprovisions of Act XXI of 1974.
13. The learned Deputy Attorney General added that the
tabulationof the result of the census would take more than one year as it
involved thewhole countiy and process was quite complicated. It was argued that
it hadno bearing on
the electoral roll
as was clear from the
provisions ofConstitution
of 1973, Electoral
Rolls Act, 1974
and Punjab LocalGovernment Ordinance, 1979, He added that each word of the Constitutionwas to be given meaning and redundancy was not to
be attributed to thelegislature as
argued by the learned counsel for the respondents. Therefore,the words last preceding census' are not to be
read in isolation but thesecond
condition of publication was equally important. It was argued thatthere was absolutely no chance of anybody or any
area in the Province ofbeing deprived
of representation in the local Councils.
14. Dr. Qazi Mohy-ud-Din, Advocate appeared on behalf
of thePunjab 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 jurisdictionin the matter of preparation and revision of electoral rolls. It was a continuous process and voters lists to be used for the election scheduled to be held on 20.5.1998 were up-to-date. 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 Akfitar Saleem vs. 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 vs. 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 enrollment of voters has been prescribed under the Electoral Rolls Act, 1974.
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 jurisdictionin the matter of preparation and revision of electoral rolls. It was a continuous process and voters lists to be used for the election scheduled to be held on 20.5.1998 were up-to-date. 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 Akfitar Saleem vs. 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 vs. 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 enrollment 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 mam provision concerning the present controversy. The same
read as under :—
18. Electoral
Rolls. The electoral rolls prepared for election of members of Provincial Assembly as
amended from time to B 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 Councils. 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, andNow 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 clarhis 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 I
made in prescribed proforma with 21 days. Section 11 deals with the
transfer j
of votes while Section 12 deals with the rejection of claims and objections.
Section 1.'! provides for application of the persons left out due to
inadvertence or absence of timely information while Section 14 deals with inquries. 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; u) preparation
of the list, and (ii) its revision. This is the continuous process independent of
any census. This is riot all. This Act provides enrollment and correction oft.be
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 rolls 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 prescribedThe electoral roll comes into force
immediately after final publication under j Section 16 and remains in force till
revision as per provisions of Section 23. j 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 impoitant
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 fil(8> and 219 the word 'census' does not
appear anywhere in the provisions referred
to above and pertaining to the electoral rolls, it 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 etc., vs. Election Commission of India (AIR 1984 SO 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 deals with
the representation of Muslims.
Non Muslims and peasants etc. respectively. The 'population' is relt-vant for constitution, composition and
representation of different communities.
The term 'population' has been defined in Section ,'J (xxviii) as underSec. 3 frmn'j-'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. Fiie term 'official
publication" has been defined in Words and Phrases. Permanent Edition, volume 29A as under :--"OFFICIAI. PUBLICATIONapers embraced in exhibit, which were work of
persons in j employment of government
in course ot" performance of duties of
their positions, were
'official papers' and
the exhibit which was
published by government printing office
H upon order of the
Senate was an
'official publication" evidencing and "official record",
within Civil Procedure Rule providing that
authenticity of an official record mav beevidenced by an
official publication thereof. U.S.
vs. 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. vs. Abdul Ghani (PLD 1978 SC 190), Muhammad Ishaq us. Chief
Administrator ofAuqaf, Punjab (PLD 1977 SC 639), Mumtaz Hussain Vs. Chief Administrator, Auqaf Department, Lahore
(PLD 1976 Lahore 511) and
Muhammad Yaseen vs. 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
& 65 of 1996 and it was held as under :--
8..... Therefore, holding of fresh census in the country
is nota condition precedent for
holding of general elections."The
same questipn also came for consideration in the judgment of Division Bench of Allahabad High Court in the case of Mukat
Lai vs. State of U.P. (1972 ALJ
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 expression 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. Fourteen 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 eveiy person, in every house. The Act makes it penal for a person employed in
the Census to communicates 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' has 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 31stMarch, 1998.' On the other hand, the Punjab Local
Councils ElectionAuthority vide notification
dated 13.2.1998 issued the programme for therevision and delimitation of electoral units. The process of delimitationcommenced
on 17.2.1998, the preliminary lists of electoral
units werepublished on
22.2.1998, the objections etc. were filed by 24.2.1998 whichwere decided by 2.3.1998. The final list of the
electoral units was issued on7.3.1998.
Therefore, for the purpose of present elections, even the census of1998 being still in the process cannot be
considered to be 'last precedingcensus'.
AS such the same was not relevant. The delimitation of electoralunits under the
Punjab Local Government Ordinance, 1979 had become a matter
past and closed before the completion of census which could not bereopened. We may mention here that the result of a
last census dulypublished at the most
had relevancy to delimitation of electoral units but ithad no nexus with the electoral roll, the
preparation and revision, whereofwas
constitutional duty of the Chief Election Commissioner of Pakistan asper Article 219 read with Electoral Rolls Act,
1974. The same is revisedannually. 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 was 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 inter-dependence of electoral roll and census.
21. The upshot of the above discussion is that
the judgment of thelearned Single Judge in Chambers dated 30.4.1998 is set-aside by
acceptingthis appeal with no order as to costs. The result is that the writ
petition filedby respondent No. 1 is dismissed.
(A.SJ Appeal accepted.
(A.SJ Appeal accepted.
