SALEEM AKHTAR Versus ALLAH DITTA SETHI
ORDER
1. ZAFFAR HUSSAIN MIRZA, J.-- Sheikh Allah Ditta Sethi and his son Sheikh Fazal Elahi Sethi, respondents Nos. l and 2 respectively, claiming to be voters of Electoral Rolls printed for Ward No.2, Rawalpindi, applied for insertion of their names on 17th October, 1987, asserting that they were residents of House No.P-1613-F(1) and on the same day the Revising Authority allowed their request ordering the inclusion of their names. On the next day, Malik Saleem Akhtar, petitioner herein applied before the same Authority under section 18 of Electoral Rolls Act, 1974, and on this a notice was ordered to issue to the said respondents but the notice was returned unserved. Then after an ex parte inquiry the Revising Authority by its order, dated 12th October, 1987, excluded the names of the respondents from the Electoral Rolls of the area in question.
2. The said respondents approached the Election Commissioner in the matter who by order, dated 27th October, 1987, directed the Registering Authority not to implement the order dated 12th October, 1987.
3. As the aforesaid order was passed without notice to the petitioner he also approached the Election Commissioner, and once again without notice to the said respondents the learned Election Commissioner recalled his earlier order, dated 27th October, 1987, on 3rd November, 1987.
4. Faced with this situation the said respondents moved the Chief Election Commissioner under section 27 of the Electoral College Act and on their application notice was issued for 11th November, 1987. However, before that date the said respondents filed Constitutional Petition No.418 of 1987, in the Lahore High Court, Rawalpindi Bench, Rawalpindi, challenging the legality of order of Registering Officer, dated 11th October, 1987, deleting their names earlier included and the order, dated 3rd November, 1987, issued by the Chief Election Commissioner. This constitutional petition was admitted to regular hearing suspending the operation of the two impugned orders before the Court, vide order, dated 10th November, 1987, relevant part of which reads as follows:-
5. "10-11-1987. Khawaja Ahmad Tariq Rahim, Advocate, assisted by Mr. Samad Mahmood Advocate, for the petitioners.
6. Inter alia states:-
(i) Order dated 29-11-1986, of Revising Authority in terms of section 14(2) of Electoral Rolls Act, 1974, had attained finality and could not have been questioned by the Registration Officer;
(ii) Order dated 3-11-1987, issued from the office of 'Commissioner' could not have rescinded its earlier order, dated 27-10-1987, without prior hearing and when the Constituency had already been called upon to elect its representatives;
(iii) Order dated 11-3-1987, of Registration Officer deleting the names of the petitioners from electoral roll of Ward No.2, presently Ward 51, was illegal and void.
7. C.M. No.546 of 1987
8. Notice: Meanwhile, order, dated 11-10-1987, of Registration Officer and that dated 3-11-1987, issued from the 'Commission' are suspended. Net result of this order would be that petitioners 1 and 2 shall be competent to file their nomination papers on the basis of existing entries in the Electoral Rolls pertaining to Ward No.2, now 51. )"
9. When the parties appeared before the Chief Election Commissioner, on 11th November. 1987 the learned counsel for the said respondents made a statement that the respondents wished to withdraw from the proceedings. But this prayer was opposed by the petitioner who insisted that the controversy raised before the Chief Election Commissioner may be dealt with by him. In view of this situation the learned Chief Election Commissioner adjourned the further hearing of the case directing parties to file their replies.
10. In the meantime the petitioner submitted an application before the High Court for modification /clarification of the interim order which according to him left the matter ambiguous whether the restraining order was directed to the Chief Election Commissioner qua the proceedings pending before him or not. The learned Judges of the Division Bench vide order, dated 15th November, 1987, felt that no clarification of the order was required as it was self-explanatory.
11. On 16th November, 1987, the petitioner, then moved the learned Chief Election Commissioner praying that the proceedings under section 27 of the Electoral Rolls Act, pending before him, may be taken up and decided. On this application the learned Chief Election Commissioner passed an order on 17th November, 1987, which reads as under:-
12. "No action on this application is desirable in view of the order of stay granted by the learned High Court, Rawalpindi Bench, Rawalpindi dated 10-11-1987. The application may be placed on the record.
13. Sd/-
14. Chief Election Commissioner"
15. Under the aforesaid circumstances the petitioner has now come up with this petition for leave to appeal from the order of the High Court dated 10th November, 1987. We have heard Mr. S.M. Zafar. Advocate, in support of the petition at length. The main grievance of the learned counsel is that in the circumstances of the case, the impugned order of the High Court has in fact taken away the controversy between the parties before the learned Chief Election Commissioner of which he was lawfully seized with the result that although the said respondents are not qualified to contest an election to a unit from the Constituency in question, they would be enabled to be candidates therein. According to the learned counsel the effect of section 18, second proviso of the Punjab Local Government Ordinance, 1979, would be that if the names of the respondents are finally held by the learned Chief Election Commissioner to be properly excluded from the Electoral Roll, the said respondents may be qualified to vote at the forthcoming local bodies election but will not be qualified to be candidates therein.
16. After considering the contentions of the learned counsel we are, however, of the opinion that this is not a fit case for grant of leave. In the first place the petition is directed against an interim order granting stay which lies in the domain of judicial discretion and the petitioner will have sufficient opportunity to contest the order at the time of its confirmation by the High Court. Secondly and more importantly, the order of the learned Chief Election Commissioner, dated 17th November, 1987 (reproduced above) indicates that in exercise of his own discretion he considered it against propriety to pass orders immediately on the application of the petitioner in view of the stay granted by the High Court. Even his order is an interim order which also does not finally determine the rights of the parties before the Chief Election Commissioner. Under the circumstances no interference is called for by this Court.
17. The petition is accordingly dismissed.
18. M .I. /S-85/S ?? Petition dismissed.