IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitution Petitions No. D-685, 714 & 715 of 2022

Before:

Justice Nadeem Akhtar

Justice Zafar Ahmed Rajput

1. C.P. No. D–685 of 2022: Shafqat Ali v. Federation of Pakistan

& others

2. C.P. No. D–714 of 2022: Ali Aflaque & another v. Election Commission of Pakistan & others

3. C.P. No. D–715 of 2022: Ali Aflaque & another v. Election Commission of Pakistan & others

M/s Achar Khan Gabol and Riaz Ali Shaikh, Advocates for the Petitioners.

Mr. Mohsin Kadir Shahwani, Advocate for the Respondent No.6 (Sardar Muhammad Usman).

Mr. Ali Raza Pathan, D.A.G. Mr. Ali Raza Balouch, A.A.G. and Mr. Zeeshan Haider Qureshi, Law Officer, E.C.P.

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O R D E R

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ZAFAR AHMED RAJPUT, J.– The respondent No.6 submitted his two nominations in Form-III to contest Local Council Elections-2022 for the seat of Member District Council (Rural) from Union Council No. 38 Palhano, Taluka Bhiria, District Naushahro Feroze, which were rejected by the Returning Officer/respondent No.5, vide orders dated 20.05.2022, on the ground that he was voter of Town Committee Tharushah (Urban) and as per law a voter of Town Committee cannot contest in Union Council (Rural). Against that rejection, the respondent No.6 preferred Election Appeal No. 97 & 89/2022, which were allowed by the Appellate Authority/ Election Tribunal, Naushahro Feroze, vide orders dated 24.05.2022, by setting aside the orders of Returning Officer with directions to District Election Commissioner, Naushahro Feroze (“D.E.C.”) to issue Provisional Voter List containing the name of the respondent No.6 as voter of U.C. Palhano by deleting his name from the list of Town Committee Tharushah. It is against those orders, that the listed Const. Petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 have been preferred by the petitioners, who are voters of the aforesaid Union Council No. 38.

2. Learned counsel for the petitioners have contended that the Appellate Authority erred in allowing Election Appeal; that since the respondent No.6 is a registered voter of urban area i.e. Town Committee, he cannot contest election from rural area in view of sections 35(c) and 37 (2) (a) of the Sindh Local Government Act, 2013 (“the Act”); hence, the impugned orders are liable to be set aside being not sustainable in law. In support of their contentions, learned counsel have relied upon the case of Haji Khan Bhatti vs. Province of Sindh through Provincial Election Commission and others (2016 SCMR 1970) and unreported order of this Court passed in C.P. No.D-586 of 2022 (Re- Mansoor Ali Siyal & another vs. Federation of Pakistan and 4 others).

3. On the other hand, learned counsel appearing for respondent No.6 has fully supported the impugned order on the ground that the respondent No.6 is the resident of rural area of District Naushahro Feroze with permanent address of village Shadi Khan Almani, which has been mentioned in his C.N.I.C. and despite direction of this Court passed in C.P No. D-310 of 2022, filed by the respondent No.6, the D.E.C failed to decide the application of respondent No.6 for correction of Electoral Roll of Union Council, Manjuth by entering his vote in Roll of said Council and deleting the same from Roll of Ward No.6, Town Committee Tharushah.

4. The learned D.A.G., A.A.G. and Law Officer of ECP; however, do not support the impugned orders in view of Section 37(2) (a) of the Act. They have maintained that the respondent No.6 approached to D.E.C. for shifting of his vote after freezing of Electoral Rolls on account of forth coming election of Local Government in Sindh Province; while as per rules the cutoff date to ascertain and entertain such application was 13^th April 2022.

5. Heard, record perused.

6. We deem it appropriate to reproduce here 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) ---------------------------------

(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.

7. It appears from the perusal of above-mentioned provisions of law that under section 35 of the Act, 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, under section 37 (2) (b), 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 his proposers and seconders are registered voters of the concerned Union Council or ward as the case may be.

8. It also appears from the perusal of the record that D.E.C, vide order dated 18. 05.2022 observed on the application of the respondent No.6 for shifting of his vote that the same was not entertainable as the provision of section 39 of the Election Act, 2017 put bar on him to entertain any request during election programme; hence, the application could not be entertained before the culmination of election process.

9. In the instant case, it is an admitted position that the petitioner, intends to contest for the membership of District Council (Rural) but is not registered voter of any concerned Council of the said District Council (rural area) of the District Naushahro Feroze but of Town Committee Tharushah, which is an urban area of the said District. In the case of Haji Khan Bhatti (supra), the Hon’able Supreme Court has held that the petitioner, being a voter of Municipal Committee Moro, District Naushahro Feroze, which is a Council in urban area of the District, on account of restrictions contained in Section 35(1)(c) of the Act cannot stand as a candidate on the reserved seat of District Council Naushahro Feroze which under Section 15 (b) (ii) of the Act is constituted purely for rural area of a District.

10. In the instant matter, it is an admitted position that the respondent No.6 is not a registered voter of the concerned Union Council (rural area) and; therefore, his nominations were rejected by the Returning Officer on the said ground but the Appellate Authority set aside the order of Returning Officer vide impugned order. The operative part of the impugned order reads as under:

“Since the application filed by the appellant has not been decided properly by the District Election Commissioner in spite of order of the High Court, therefore, the right to contest the election cannot be taken away from the appellant as he is aggrieved person and his voter list name has been deleted from the voter list of town committee Tharushah to Town Committee Kandiaro.

Therefore, impugned order is set-aside and appellant is allowed to contest the election from the U.C Palhano-38.

The District Election Commissioner shall issue such provisional vote list containing name of the appellant as voter of U.C Palhano and his name shall be deleted from the list of T.C. Tharushah.

The nomination form of appellant is accepted.”

11. As already observed by this Court in C.P. No.D-586 of 2022 (supra), it appears that the Election Tribunal was misdirected in observing that the application filed by Respondent No.6 has not been decided properly by the D.E.C. Such finding was unwarranted inasmuch as the Election Tribunal had no jurisdiction to record the same as it was for Respondent No.6 to agitate and challenge the order dated, 18-05-2022 passed by D.E.C. in appropriate proceedings. Insofar as the nomination and its acceptance is concerned, once an order was passed by D.E.C. on 18.05.2022, then the respondent No.6 could only have filed his nomination in respect of Town Committee where his vote was registered whether rightly or wrongly. Despite passing of an order by the D.E.C, the Tribunal allowed the appeal without any lawful justification. There is another aspect of the matter as well. The issue here is not of any disqualification of Respondent No.6 on merits or as to ineligibility due to failure to meet any of the prescribed conditions of being a valid candidate. It is just because of the fact that an attempt was made by him to contest elections in a Union Council where his vote is not registered.

12. We are, therefore, of the view that allowing of the Appeal by way of impugned order of the Election Tribunal, amounts to gross illegality. The Election Tribunal adopted a weird and queer procedure and despite observing that the respondent No.6 was not a registered voter in concerned Union Council directed D.E.C. for shifting / transfer of his vote from Town committee (urban area) to concerned Union Council (rural Area).

13. For the foregoing facts and reason, these Petitions are allowed. Impugned orders passed by the Appellate Authority/ Election Tribunal stand set aside. The nominations of Respondent No.6 stand rejected. Office to communicate this order to the Election Commission.

14. All listed Petitions stand disposed of with pending applications.

J U D G E

Faisal Mumtaz/PS