ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-720 of 2022.

Before:

Mr. Justice Adnan-ul-Karim Memon,

Mr. Justice Abdul MobeenLakho,

Petitioner : Abdul GhaniMashori.

Respondents : Returning Officer & others.

Mr. Habibullah G. Ghouri, advocate for the petitioner.

Mr. Abdul Hamid Bhurgri, Addl. Advocate General.

Mr. Mohammad Imran Abbasi, Asst. Attorney General, along with Zeeshan Hyder Qureshi, Law Officer, Election Commission of Pakistan.

Mr. Mohammad Afzal Jagirani, advocate for private respondents.

Date of hearing : 20.07.2022.

Date of order : 20.07.2022.

O R D E R

ADNAN-UL-KARIM MEMON, J.- The petitioner has filed this petition seeking a change of polling station of Govt. Girls Primary School Mir Mohammad to Govt. Girls Primary School Kandi Babar, Taluka K.N. Shah, District Dadu, inter-alia on the ground that the Polling Station GGPS Kandi Babar had already been located at the present place i.e. Govt. Girls Primary School Mir Mohammad and all the Local Bodies, as well as General elections, have been held at the same Polling Station, thus there was/is no occasion for the returning officer to dislocate the said polling station at the previous location. It is alleged by the petitioner that in case the polling station of Govt. Girls Primary School Mir Mohammad is not restored, there is the apprehension of creation of bad law and order situation; besides, the newly established polling station of GGPS Kandi Babar is inconvenient for the voters of the area, therefore the petitioner has hurriedly approached the respondents No.1 and 2 for restoration of the earlier polling station, but they declined on the premise that the subject polling station is in dilapidated condition, which is not the factum.

2. We have heard the learned counsel for the parties and perused the record with their assistance.

3. The petitioner, who is a candidate in the upcoming Local Bodies Elections 2022 has impugned the shifting of the polling station of the above-named Ward. The reasons assigned by the returning officer are that the one polling station already exists in the village Koor Meer Muhammad (GGPS) has voters from the same village. The second reason is that the polling station GGPS Koor Meer Muhammad is shifted to Govt. Girls Primary School Kandi Babar, Taluka K.N. Shah, District Dadu has voters of the same village and said building GGPS is very dangerous/deplorable condition.

4. Generally in an election process the High Court cannot interfere by invoking its Constitutional jurisdiction because of Article 225 of the Constitution. However, this is subject to an exception where no legal remedy is available to an aggrieved party during the process of elections, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate and/or cause inconvenience to the voters, he can press into service Constitutional jurisdiction of the High Court.

5. Since the petitioner had no legal remedy available and the impugned order was /is patently illegal as no opportunity of hearing had been granted to the petitioner and/or voters of the concerned area while changing the subject polling station; and, the whole effect was to indirectly cause some disturbance to the voters of the area concerned, as such the impugned order is liable to be set at naught for the simple reason that the returning officer has ordered to shift GGPS Koor Meer Muhammad to Govt. Girls Primary School Kandi Babar, Taluka K.N. Shah, District Dadu on the premise that the said GGPS building is very dangerous/deplorable condition, without looking into the fact that the competent authority has not yet declared the said building as dangerous. Additionally, it has been agitated that for decades the said polling station has been used for election purposes; and now all of sudden the said building has been stated to be in a dilapidated condition; considering the aforesaid factum of the case, prima-facie, the Government of Sindh has not yet declared the said GGPS Koor Meer Muhammad as dangerous building under the law and policy, as such, the returning officer has no reasonable justification to pass order dated 19.7.2022 to that effect.

6. In the above circumstances, the original polling station viz. GGPS Koor Meer Muhammad is hereby restored with directions to the respondents to publish/notify forthwith its name in the gazette in terms of Section 41(2) of The Sindh Local Government Act, 2013 accordingly.

7. This petition stands allowed in the above terms with no order as to costs.

J U D G E