ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-717 of 2022.

Before:

Mr. Justice Adnan-ul-Karim Memon,

Mr. Justice Abdul Mobeen Lakho,

Petitioner : Muhammad Ameen Siyal.

Respondents : Saeed Ahmed Leghari & others.

Mr. Mohammad Afzal Jagirani, advocate for the petitioner.

Mr. Mohammad Imran Abbasi, Asst. Attorney General.

Mr. Munawar Ali Abbasi, Asst. Advocate General.

Date of hearing : 19.07.2022.

Date of order : 19.07.2022.

O R D E R

ADNAN-UL-KARIM MEMON, J.- Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has sought the declaration to the effect that respondent No.1 is not eligible to contest election for the seat of Member from Ward No.8 of Town Committee Sita Road, Taluka K.N. Shah, District Dadu and his nomination form for the seat of Member from the same ward i.e. Ward No.8 of Town Committee Sita Road, was erroneously accepted by the Returning Officer.

2. As per record the petitioner without filing an appeal before the District Election Tribunal has directly approached this Court, thereby challenging the acceptance of nomination papers of respondent No.1. On this legal issue, the learned Counsel for the petitioner, inter alia, contends that the respondent No.1 is not registered voter of Ward No.8 of Town Committee Sita Road, therefore, he is not eligible to contest the elections from said ward.

3. On the other hand, the learned Asst. Attorney General as well as the learned Asst. Advocate General, supporting the order of acceptance of the nomination form of respondent No.1 by the Returning Officer, submit that the petitioner has not availed the remedy of filing an election appeal before the District Election Tribunal, therefore, the petition is misconceived and liable to be dismissed.

4. We have given due consideration to the contentions of learned Counsel for the petitioner as well as the learned Asst. Attorney General and the learned Asst. Advocate General and have perused the material available on record.

5. Section 37 of Sindh Local Government Act, 2013 is clear in its terms, for convenience sake an excerpt of the same reads as under:-

“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:

1 [* * * * * * * *]

2 [(2) (a) Candidate for the District Council, membership, may contest the election from any Union Council of the District. (b) Candidate contesting for 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. From the perusal of the above provision including Sub-Section 2(b) and the Proviso thereof, it reflects that in case a Candidate is contesting for membership of Town Committee or Municipal Committee, he can contest the same from any ward of the respective Committee; however, it is subject to that the proposer and seconder, as the case may be, shall be registered voters of the concerned Union Council or ward.Section 35 (1) (c) is also clear in its terms, which resolves the controversy at hand and reads as under:-

"35. Qualifications for candidates as members. (1) A person shall not be qualified to be elected or chosen as a member of the Council unless-

(a) ..

(b) ..

7. The voter is a person who is enrolled as a voter on the electoral roll of any electoral area in a council/constituency/Ward. This proposition makes it abundantly clear that enrollment in the electoral roll is the fundamental requirement for a person to be a voter of a particular electoral area/council and Ward, mere residing in an area or having a temporary or permanent resident in any part of the electoral area of a council/constituency/Ward is not a determinative factor to term a person as a voter.

8. A criterion for having a place of residence in an electoral area is to be generally included within the electoral roll, however, the determinant factor is not being a resident of the constituency but being enrolled in the electoral roll of any of the electoral areas as discussed supra which are part of the said constituency. Primarily, residing within an electoral area forming part of a constituency under the law may be one of the vital grounds to be enrolled as a voter in the electoral roll of the said council/constituency.

9. In view of the above facts and circumstances of the case, the instant petition is devoid of merit and is accordingly dismissed with no order as to costs.

Judge