IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
Constitution Petition No.D-613 of 2022
Before:
Justice Nadeem Akhtar
Justice Zafar Ahmed Rajput
Petitioners : (1)
Ali Jan s/o Nazeer Ahmed (2) Muhammad
Malook s/o Haji Muhammad Shar and (3) Ghulam Murtaza Rajper s/o
Muhammad Bux, through Mr. Abdul Rehman Faruq Pirzada, Advocate
Respondents
: Election Commission
of Pakistan and 3 others, through Mr. Zeeshan Haider Qureshi, Law Officer, ECP.
Mr. Ali Raza Pathan, Assist. Attorney General
Mr. Ali Raza Balouch, A.A.G.
Date of Hearing : 14.06.2022,
16.06.2022& 17.06.2022
Date of Order : 24.06.2022
==========
O
R D E R
==========
ZAFAR
AHMED RAJPUT, J.– Petitioners submitted their nominations to contest
Local Council Elections-2022 for the seats of Member District Council (Rural) from
Union Council No. 52, Punhal Khan Rajper, Union Council No. 51, Nangar Khan Shar
at Karam Khan and Union Council No. 53, Bhango Behan of District Khairpur, respectively,
which were rejected by the Returning Officer/respondent No.3 after scrutiny, on the ground that they are not
enrolled as voter in the said Union Council. Against that order, the petitioners
preferred Election Appeals No. 21, 102 and 143 of 2022, which were also
dismissed by the Appellate Authority, vide consolidated order dated 27.05.2022.
It is against those orders, that the instant Const. Petition under Article 199
of the Constitution of the Islamic Republic of Pakistan, 1973 has been
preferred by the petitioner.
2. Learned counsel for the petitioners has
contended that the Returning Officer erred in rejecting nominations of the
petitioners by misinterpreting provisions of sections 35(c) and 37(2)(a) of the
Sindh Local Government Act, 2013 (“the
Act”) and Appellate Authority failed to appreciate such position and passed
the impugned order, which is not sustainable in law.
3. Conversely, Learned Law Officer of Election Commission of Pakistan, D.A.G.
and A.A.G. have fully supported the impugned orders.
4. Heard, record
perused.
5. We deem it appropriate to reproduce
relevant provisions of sections 35 and 37 of the Act, as under:-
35. Qualifications for
candidates as members.- A
person shall not be qualified to be elected or chosen as a member of the
Council unless –
(a) ---------------------------------
(b) ---------------------------------
(c)
he is enrolled as a voter in the
electoral rolls of the concerned Council or ward.
(d) ---------------------------------
37. Prohibition on dual membership. -(1) Save as otherwise provided
under this Act, no person shall, at the same time, be a member of more than one
Council:
(2) (a) Candidate contesting for the District
Council membership, may contest the election from any Union Council of the
District
(b) Candidate contesting for the membership of
Town Committee or Municipal Committee may contest the election from any ward of
the respective Committee.
Provided
that the proposer and seconder as in clause (a) and (b) shall be registered
voters of the concerned Union Council or ward as the case may be.
(3) -----------------------------------------
(4) -----------------------------------------
(5) -----------------------------------------
(6) -----------------------------------------
6. It appears from the
perusal of above-mentioned provisions of law that a person qualifies to be elected
or chosen as a member of the Council if he is enrolled as a voter in the
electoral rolls of the concerned Council or ward. However, a person contesting
for the District Council membership, may contest the election from any Union
Council of the District and the persons contesting for the membership of Town
Committee or Municipal Committee may contest the election from any ward of the
respective Committee provided that their proposers and seconders are registered
voters of the concerned Union Council or ward as the case may be.
7. In the instant case, it is an admitted
position that the petitioners, who intend to contest for the membership of
District Council (Rural) are not registered voter of any concerned Council of
the said District Council i.e. rural area of the District Khairpur but of Town
Committees Karoondi and Pacca Chang, which fall in urban area of the said
District. This Court has already observed in the case of Haji Khan Bhatti v. Province of Sindh and others (2017
CLC 1650) that if a candidate is a registered voter in an
urban area then he could only be elected for Town Committee, Municipal
Committee, Union Committee etc. falling within an urban area of a district, and
if a person is a registered voter in a rural area, he could only be elected for
a Union Council and District Council falling within a rural area; in such case,
a person being a registered voter of an urban area disqualifies to represent a rural
area and vice versa, irrespective of the
fact that he is voter of the same district.
8. For the foregoing facts and reasons, we
have found no illegality or irregularity in the impugned order requiring any
interference by this Court in its Constitutional jurisdiction. Accordingly, this
petition is dismissed, with no
order as to costs.
J U D G E
Faisal Mumtaz/PS