ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-681 of 2022.

Before:

Mr. Justice Adnan-ul-Karim Memon,

Mr. Justice Abdul Mobeen Lakho,

Petitioner : Rais Qamber Ali Leghari,

Respondents : Munawar Ali & others.

Mr. Ghulam Dastagir A. Shahani, advocate for the petitioner.

Mr. Mohammad Afzal Jagirani, advocate for respondent No.1.

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.- The petitioner filed his nomination form for the seat of General Councilor from Ward-06 of Town Committee Sita Road, Taluka K.N. Shah, District Dadu, which after scrutiny was accepted by the Returning Officer of Town Committee Sita Road. Respondent No.1 filed an appeal against such acceptance vide Election Appeal No.103/2022, which was allowed by the District Judge/District Election Tribunal Dadu vide order dated 25.6.2022, mainly on the ground that the petitioner was not an enrolled voter of Ward No.6 of Town Committee, Sita Road, where he intended to contest the elections. The order of the District Election Tribunal has been challenged by the petitioner through the instant petition.

2. Mr. Ghulam Dastagir A. Shahani learned Counsel for the petitioner referring to clause (b) of sub-section (2) of Section 37 of the Sindh Local Government Act, 2013, submits that is well settled now 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; and in the present case the proposer and seconder of the petitioner,are enrolled voters of Ward No.6 of Town Committee, Sita Road, therefore, the returning officer rightly accepted the nomination form of the petitioner. However,the learned District Election Tribunal committed grave illegality in allowing the appeal of respondent No.1 and rejected the nomination papers of the petitioner. Learned counsel emphasized that the very purpose of establishing a local government system is to extend the representation of the people in the governance to the grass root level. He added that for establishing the local government system in Sindh, the Government has been empowered under section 15 of the Sindh Local Government Act, 2013 to categorize a District into urban and rural areas if it is not already so categorized. He further submitted that the urban area of a District is divisible into various Councils such as a Union Committee, a Town Committee, Municipal Committee, a Municipal Corporation, and a Metropolitan Corporation, depending upon the municipal status of its urban areas. He also relied upon Section 37 of Sindh Local Government Act, 2013and submitted that the aforesaid provision is clear in its terms.He also submitted that 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, thus no ambiguity is left on the subject issue, as such the decision of the learned Election Tribunal is not sustainable under the law. He has relied upon the order dated 24.6.2022 passed a Division Bench of this Court at Sukkur Bench in C.P. No.D-644/2022, order dated 13.7.2022 in C. P. No.D-2440/2022, and order dated 15.7.2022 in C. P. No.D-2565/2022, both passed by a Division Bench of Circuit Court of this Court at Hyderabad and submits that the impugned order dated 25.6.2022 passed by the District Election Tribunal/District Judge, Dadu may be set aside the nomination form of the petitioner may be restored.

3. On the other hand, Mr. Mohammad Afzal Jagirani learned Counsel appearing for respondent No.1, supporting the impugned order dated 25.6.2022 passed by the District Election Tribunal/District Judge, Dadu, contends that the petitioner is not being registered voter of Ward No.6 of Town Committee, Sita Road, is not eligible to contest the election and that the nomination form of the petitioner has rightly been rejected by the election tribunal. He places reliance on the unreported order dated 23.6.2022 passed by a Division Bench of Circuit Court of this Court at Hyderabad in C. P. No.D-2202/2022 as well as the order dated 30.06.2022 passed by a Division Bench of this Court at Karachi in C. P. Nos.D-3990 & several others of 2022 and prays that the petition is devoid of merit, therefore, same may be dismissed.

4. The learned Asst. Attorney General as well as the learned Asst. A.G., however, do not support the impugned order and have recorded their no objection if the petition is allowed and the nomination form of the petitioner is restored.

5. We have given due consideration to the contentions of learned Counsel for the petitioner, learned Counsel for respondent No.1 as well as the learned Asst. Attorney General and the learned Asst. Advocate General and have perused the material available on record.

6. in the present case, the petitioner claims to be an enrolled voter on the electoral rolls of the Ward No.6 of Town Committee, Sita Road, which is a Council located in the urban area of District Dadu, and prima-facie his case falls within the terms of section 37(2) (b) of Sindh Local Government Act, 2013 as amended up to date, which is within the term of the electoral roll and/or Ward of Town Committee, Sita Road, therefore can contest the ensuing election which is scheduled to take place on 24.7.2022, subject to final say of the learned Election Tribunal if approached by the aggrieved party after election process as the present matter is of a summary nature and the said questions raised hereinabove could be finally attended, after the election process is over, before the competent forum.

7. Accordingly, the impugned order dated 25.6.2022 passed by the District Judge/District Election Tribunal Dadu is set-aside, and the Returning Officer concerned is directed to accept the nomination papers of the petitioner in terms of prayer clause (b) of the Petition, enabling him to contest the subject election, under the law.

8. Instant petition is hereby allowed in the aforesaid terms.

Judge