IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitutional Petition No. D-645 of 2022

Before:

Justice Nadeem Akhtar

Justice Zafar Ahmed Rajput

Petitioner : Agha Mir Mustafa Khan Durrani s/o Agha

Rafiuddin Khan, through M/s Qurban Ali Malano, Aamir Mustafa Kamario and Agha Ali Khan Durrani, Advocates

Respondent : Federation of Pakistan, through Mr. Ali Raza

No.1 Pathan, Assistant Attorney General

Respondent : Election Commission of Pakistan and 2 others,

No.2 to 4 through Mr. Zeeshan Haider Qureshi,

Law Officer, ECP.

Respondents : Saeed Ahmed s/o Jan Muhammad Rind Baloch No.5 through M/s Habibullah G. Ghouri &

Chaudhry Muhammad Iqbal, Advocates

Mr. Ali Raza Balouch, A.A.G.

Date of Hearing : 14.06.2022

Date of Order : 24.06.2022

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O R D E R

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ZAFAR AHMED RAJPUT, J.– The petitioner, who is a registered voter of Ward No.5 of Town Committee, Garhi Yasin, District Shikarpur, submitted his nomination papers in Form-III(A) to contest Local Council Elections-2022 for the seat of Member of Ward from Ward No.4 of the said Town Committee, which was accepted by the Returning Officer/ respondent No.4, vide order dated 20.05.2022. Against that acceptance, the respondent No.5 preferred Election Appeal No. 07/2022, which was allowed by the Appellate Authority, vide order dated 27.05.2022, on the ground that he is not enrolled as voter in the Ward No.4 of the said Town Committee and, consequently, nomination of the petitioner was rejected. It is against that order, 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 petitioner has contended that the appellate Authority erred in allowing Election Appeal and rejecting the nomination of the petitioner by misinterpreting the provisions of sections 35 (c) and 37 (2) (a) of the Sindh Local Government Act, 2013 (“the Act”); that section 37(2) (b) of the Act allows a candidate to contest election from any Ward of the same Town Committee provided that his proposer and seconder are registered voters of the concerned Ward; as such, the only condition of being a voter of the concerned Ward applies to the proposer and the seconder of the candidate, which in the case in hand has duly been complied with as the proposer and the seconder of the petitioner are voters of the Ward No.4; hence, impugned order is not sustainable in law.

3. On the other hand, learned Counsel appearing for private respondent No.5 have fully supported the impugned order on the ground that Section 35 and 37 of the Act are to be read disjunctively; that where a member is to be directly elected from a Ward of a Council then unless he is an enrolled voter of that very Ward, he cannot be a candidate from that particular Ward; that since the petitioner is not enrolled as a voter in Ward No.4 of Town Committee, Garhi Yasin, he cannot be allowed to be a candidate for Ward Member of said Town Committee by virtue of provisions of Section 35(i)(c) of the Act. In support of his contention, learned Counsel has relied upon the case of Haji Khan Bhatti vs. Province of Sindh through Provincial Election Commission and others reported in (2016 SCMR 1970) and unreported order of this Court passed in C.P. No.D-585 of 2022 (Re-Ghulam Qadir Solangi vs. Federation of Pakistan and 4 others).

4. The learned Law Officer of Election Commission of Pakistan, D.A.G. and A.A.G. however do not support the impugned order in view of Section 37(2)(b) of the Act.

5. Heard, record perused.

6. We deem it appropriate to reproduce relevant provisions of sections 8, 15(a), 35 and 37 of the Act, as under:-

8. Local areas.- (1) Government shall, by notification in the official Gazette, categorize a District into urban area and rural area.

(2) For purposes of the Act, Government shall, by notification, declare a local area consisting of –

(a) urban area in a District, as a Metropolitan Corporation, District Municipal Corporation, Municipal Corporation, Municipal Committee, Town Committee, Union Committee and ward];

(b) rural area in a District, as a District Council and Union Council.

(3) -------------------------------------------

(4) ------------------------------------------

15. Constitution of Council.- As soon as may be, the following Councils shall be constituted –

(a) in urban area –

(i) a Union Committee for each ward in the Corporation;

(ii) a Town Committee for each Town comprising of single member of ward;

(iii) a Municipal Committee for each Municipality comprising of single member of ward;

(iv) a Municipal Corporation for each city comprising of Union Committees;

(v) a District Municipal Corporation for each district of the Metropolitan city;

(vi) a Metropolitan Corporation for each Metropolitan city.

Provided that no area shall be deemed to be rural area in a Metropolitan area.

(b) in rural area –

(i) a Union Council for each Union;

(ii) a District Council for each District [except Karachi Division

Provided that there shall be no District Council in Karachi Division and Hyderabad District.

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.

(3) -----------------------------------------

(4) -----------------------------------------

(5) -----------------------------------------

(6) -----------------------------------------

7. It appears from the perusal of above-mentioned provisions of law that the Districts in Sindh Province are categorized under Section 8 of the Act into urban area and rural area. In urban area of a District, the local areas are consisting of Metropolitan Corporation, Town Municipal Corporation, Municipal Corporation, Municipal Committee, Town Committee, Union Committee and Ward, while in rural area the local areas are consisting of District Council and Union Council. It further appears 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. The term “Council” has been defined under Section 3 (xvii) of the Act as a Corporation, Municipal Committee, Town Committee, District Council, Union Committee, or Union Council, as the case may be, while the term “Ward” has been defined under Section 3(xcix) of the Act as basic electoral unit under the Act. However, under Section 37 of the Act a person contesting for the District Council membership, may contest the election from any Union Council of the District and the person contesting for the membership of Town Committee or Municipal Committee may contest the election from any Ward of the respective Committee provided that his proposer and seconder are registered voters of the concerned Union Council or Ward as the case may be.

8. In the instant case, it is an admitted position that the petitioner, who is enrolled as a voter in Ward No.5 in the electoral of the Town Committee, Garhi Yasin / Council, intended to contest election as a Member of Ward No.4 of said Town Committee and his proposer and seconder are registered voters of the Ward No.4 of the said Town Committee. He is contesting election for a Town Committee, which under Section 15(ii) of the Act, comprises of single member wards falling within a Town Committee and comprises of each member elected from its respective wards including reserved seats as provided under Section 18(9)(b) of the Act. In terms of Section 35 of the Act, the petitioner is an enrolled voter in the Election Rolls of concerned Council / Town Committee, Garhi Yasin and he is contesting election from a representative ward of said Town Committee i.e. Ward No.4, his proposer and seconder are registered voters of the Ward No.4 of the said Town Committee; hence in terms of Section 37(2) (b), he qualifies to contest the election for membership of Town Committee, Garhi Yasin.

9. So far cases of Haji Khan Bhatti and Ghulam Qadir cited by learned Counsel for the Respondent No.5 are concerned, we are of the view that the same do not advance the case of Respondent No.5 being on distinguishable facts. In the case of Haji Khan Bhatti, the Apex Court 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. While in the case of Ghulam Qadir (supra), the petitioner’s vote was registered as voter in Ward No.4 and he submitted nomination for the seat of General Member, Ward No.3, UC-23 Mehrabpur, hence this Court while relying upon the dictum laid down in the case of Haji Khan Bhatti (supra) rejected his nomination form. However, in the case in hand, the petitioner is a registered voter of same urban area / Town Committee, Garhi Yasin / Council and as observed above in terms of Section 37(2((b) of the Act, he qualifies to contest the election as Member Ward of the said Town Committee / Council.

10. For the foregoing facts and reasons, we allow instant Const. Petition by setting aside the impugned order and maintaining the order dated 20.05.2022 passed by the Returning Officer / respondent No.4 with directions to the respondent No.4 to issue revised list of contesting candidates by inserting name of the petitioner as candidate for the seat of Member of Ward from Ward No.4 of Town Committee, Garhi Yasin, District Shikarpur and to allot him symbol as per rules.

The Constitution Petition stands disposed of along with pending application, with no order as to costs.

J U D G E

Faisal Mumtaz/PS