ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
C.P.No.D-6839 of 2015
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Order with signature of Judge
Present
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Syed Saeeduddin Nasir
Advocate Haji Khan M.S.Mashori…………..…Petitioner
Versus
Province of Sindh & others …………Respondents
16.12.2015
Petitioner present in person.
Mr.Mukesh Kumar Karara A.A.G
Abdullah Hanjrah, Law Officer of Provincial Election Commission.
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Muhammad Ali Mazhar,J: The grievance of the petitioner is that Mithiani is a small village of about 5 to 8 thousand population, but it has been made Town Committee divided into 08 wards. In Ward 1 to 3 most of the villages have been included in the newly created Town Committee Mithiani, which is against the provisions of Local Government Act, 2013. In the prayer clause the petitioner has also requested to set aside the agreement/joint strategy of the Provincial Government and Election Commission of Pakistan and restore the Union Council Mithiani in the same position, so that the petitioner may be entitled to contest the election of Chairman from the U.C. Mithiani and may fill his nomination paper for the Member of District Council. (No such agreement/joint strategy of Provincial Election Commission and Provincial Government has been pointed out nor argued).
2. The learned AAG has filed the comments, in which it is stated that Mithiani Town is thickly populated having urban features with the facilities available i.e. Commercial Markets, Medical facilities, Veterinary Hospital, Government Girls and Boys High Schools, Government Elementary College, UBL Bank, Petrol Pump, PTCL Exchange, Police Station, Livestock sale and purchase, Wooden Market, Famous Dargah of Sayed Ali Gohar Shah and Sayed Ghulam Shah, Computerized Kanta and Office of Market Committee, so the plea has been taken that there was no wrong in the notification of Town Committee Mithiani. The learned AAG submitted copy of two notifications dated 30.11.2015 issued in pursuance of the orders passed by this court in the bunch of petitions on 17.11.2015 and the order of the hon’ble Supreme Court. Through the Notification dated 30.11.2015, some officials were appointed as delimitation authorities for hearing and disposal of representation/objection by 1.12.2015 filed under Rule 8 in connection with preliminary delimitation of constituencies in respect of affected union councils and vide Notification 2.12.2015 a timeline was fixed enabling the delimitation officers to incorporate/delimit constituencies in preliminary list published on 30.11.2015.
3. A question raised by this court to the petitioner whether any objection or appeal was filed for the correction of delimitation or not, he pointed out page 7 of the court file which is a copy of an appeal dated 21.9.2015 without any endorsement which was allegedly submitted to the Chief Election Commissioner of Pakistan at Islamabad. Today, he has also shown us a handwritten document and argued that this was an appeal submitted to the Regional Election on 1.12.2015, which has not been decided, therefore, he submits that election in the said District/U.C. which is going to be held on 17.12.2015 should be stayed, so that he may be able to file nomination paper after rectification of the defects in the delimitation exercise.
4. First of all we would like to take up whether despite having ample opportunity the petitioner approached competent authority for opposing the delimitation exercise? No acknowledgment is placed before us to show that any appeal within time was filed before the competent authority though during the course of proceedings one handwritten document was produced by the petitioner to show that this was an appeal, but even no endorsement or acknowledgment produced before us to demonstrate that any such appeal was presented to the delimitation authority. He referred to an appeal which he allegedly sent to the Election Commission of Pakistan, Islamabad for this also he neither produced any acknowledgement receipt nor any endorsement is available on record and in this regard we would also like to observe that this issue relates to the delimitation for which separate authority has already been notified, therefore, it was the responsibility of the petitioner to approach the competent authority within timeline specified in the notification for that purpose and not to Election Commission of Pakistan, Islamabad.
5. Recently in C.P.No.D-6776/2015, we dismissed another petition filed on similar ground and held as under:-
“4. The local bodies elections 2015 are going to be hold on 5.12.2015 and we are also sanguine that public at large is geared up for elections, therefore, at this stage if any order is passed to revisit the delimitation exercise or election is stayed then the whole election process would be interrupted and it will not only cause inconvenience to all the candidates but also to the voters of the different Union Councils and wards. The petitioner cannot claim any discretionary relief at this stage when he himself failed to avail appropriate remedy provided under the law within the prescribed time. The courts always keep in view the higher interest of public at large while resolving matters of national importance in accordance with the Constitution and law. National interests must take precedence over private interests and individual rights. Reference can be made to PLD 1989 SC 166 (Federation of Pakistan & others vs. Haji Muhammad Saifullah Khan & others). Recently the apex court in the order dated 13.11.2015 passed in C.P.No.569-K/2015 held as under :-
“2. The issue whether the order of the Authority, which is notified on 04.06.2015 by the competent forum is appealable order. It is not in dispute that the petitioners were in knowledge of the order passed on 15.7.2015, which order was challenged on 25.08.2015 before the Sindh High Court. There is no mention that the petitioners ever approached the Election Commission by any representation as the de-limitation is the domain of Election Commission. The time provided under the De-limitation of the Constituency Rules 2015 to challenge such an order is 15 days and the Elections are to be held on 19.11.2015.
3. The petitioners have slept over for their rights to agitate the issue either before the High Court or before the Election Commission through representation within 15 days under the Rules. No justifiable explanation is offered either in the petition or otherwise for such a delay.””
6. Besides above, another C.P.No.D-6897/2015 was also dismissed by us on similar grounds.
7. As a result of above discussion, we dismiss this petition in limine alongwith pending application.
Judge
Judge