ORDER
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.P.
No. D-2199 of 2016
|
Date |
Order with signature of Judge |
1.
For
Katcha Peshi.
2.
For
hearing of C.M.A No. 5984/2016.
Present:
Mr. Justice Aqeel Ahmed Abbasi &
Mr. Justice Muhammad Faisal Kamal Alam,
JJ.
03-06-2016
Mr. Shabir Ali Bozdar,
advocate for the petitioner.
Mr. Noor Hassan
Malak, learned A.A.G. a/w Muhammad Imran Election Officer, Sukkur and Muhammad
ASlam ARO, Reserved Seats District Council Naushehro Feroze.
Mr. Mian Mumtaz
Rabbani, learned D.A.G.
.-.-.-.-.-.-.-.-.-.-.-.-
JUDGMENT
Muhammad
Faisal Kamal Alam, J. The Petitioner has assailed
the decision dated 14.05.2016 of Respondent No. 2 (the Appellate Authority),
who maintained the decision of Respondent No. 4 (Returning Officer) rejecting
the nomination paper of the Petitioner to contest the forthcoming Election of
District Council, Naushehro Feroze on the Seat reserved for Labourer. In the
Petition, following relief has been claimed:-
"
a) To set-aside the impugned order
dated 14.05.2016 passed by the learned Appellate Authority/District Judge
N/Feroze in Appeal No.08/2016 "Re: Haji Khan Bhatti V/S RO for Reserved
Seat and others" ; and to allow the petitioner for contesting the Election
of the Members to the Reserved Seats for Labourer Seat of Member District/Zila
Council".
b) To suspend the operation of the impugned
order dated 14.05.2016, till the final decision of the instant petition in hand
before this Court.
c) To grant any other relief, which deems
fit and proper under the circumstances of the petition.
d) To award the cost of petition."
2. Mr. Shabbir Ali Bozdar,
learned counsel for the Petitioner has argued that after revival of Section
18-A in the Sindh Local Government Act, 2013 (SLGA), the Petitioner has now
been wrongly disqualified by Respondents from contesting the Election of
District Council, Naushehro Feroze.
3. The learned counsel has
further argued that since language of above Section 18-A of SLGA and that of Section
47-A of the Representation of the People Act, 1976, (ROPA) are in pari
materia, therefore, the principle as developed by way of judicial
pronouncements in respect of above Section 47-A [of ROPA] is squarely applicable to above
Section 18-A of SLGA. It was further argued that in the earlier round of
litigation before this Court, the petition i.e C.P No.D-381 of 2016 filed by
the petitioner was dismissed for the reasons that the said Section 18-A was not
on the statute book. The Petitioner challenged the above order (of 04.02.2016) before
the Hon’ble Supreme Court, however, withdrawn the CPLA No.111-K of 2016 for the
reasons that Section 18-A was re-enacted pursuant to which, the petitioner became
qualified to contest the above Election. The learned counsel for the petitioner
also invited our attention to the order dated 06.05.2016 of Hon’ble Apex Court,
whereby, withdrawal of petition was allowed with the observation that the
earlier order of this Court in the above C.P.No.D-381/2016 shall not prejudice Petitioner’s
case, "if he otherwise stands qualified to contest the election."
4. To appreciate the stance of
Petitioner it would be advantageous to reproduce the above referred provisions
of the two statutes, viz. Section 47A of ROPA and 18-A of SLGA-
"47A. Party lists for reserved seats, etc.-(1) For
the purpose of election to seats reserved for women and non-Muslims in the
National Assembly and Provincial Assemblies, the political parties contesting
election for such seats shall, within the period fixed by the Election
Commission for submission of nomination papers, file separate lists of their
candidates in order of priority for seats reserved for women and non-Muslims
with the Chief Election Commissioner, or as he may direct, with the Provincial
Election Commissioner, who shall forthwith cause such lists to be published for
information of the public at large.
(2) The parties' lists referred to in clause (1)
may contain as many names of additional candidates as a political party may
deem necessary for contesting seats reserved for women and non-Muslims to
provide for any disqualification of candidates during scrutiny of nomination
papers or for filling of any vacant seat during the terms of National Assembly
and Provincial Assemblies, as the case may be.
(3) Whether a seat reserved for women or
non-Muslim in the National Assembly or a Provincial Assembly falls vacant for
death, resignation or disqualification of a member, it shall be filled in by
the next person in order of precedent from the party's list of the candidates submitted
to the Election Commission under clause (1).
(4) Every candidate contesting election on a
seat reserved for women or non-Muslims, shall alongwith the nomination papers
and other relevant documents, submit to the Returning officer appointed by the
Election Commission in this behalf-
(a) a
copy of the party list of the candidate's political party for such seats;
(b) declarations
and statements as required by law or rules in support of the nomination; and
(c) The
fee required under any law for the time being in force for filing nomination
papers.]"
"[18-A.-(1)
For the purpose of election to the seats reserved for woman, peasant or
labourer and non-muslim in a Council other than Union Council and Union
Committee, the political party contesting election for such seats shall within
the period fixed by the Commission for submission of nomination papers, file
separate lists of their candidates in order of priority for seats reserved for
woman, peasant or labourer and non-muslim with the District Returning Officer
who shall also act as the Returning Officer for the aforementioned reserved
seats in the District.
(2) The lists submitted under sub-section (1)
with the Returning Officer shall be published forthwith for information of
public at large.
(3) The parties' lists referred to in
sub-section (1), may contain as many names of additional candidates as the
political party may deem necessary for contesting seats reserved for woman,
peasant or labourer and non-muslim to provide for any disqualification of
candidates during scrutiny of nomination papers or for filling of any vacant
seat during the term of Council concerned.
(4) Where a seat reserved for woman, peasant or
labourer and non-muslim in a Council falls vacant due to death, resignation or
disqualification of a member, it shall be filled in by the next person in order
of precedent from the parties lists of the candidates submitted to the
Returning Officer under sub-section (1).
(5) Every candidate contesting election on a
seat reserved for woman, peasant or labourer and non-muslim shall, alongwith
the nomination papers and other relevant documents submit to the Returning
Officer appointed by the Commission in this behalf-
(a) a
copy of party list of the candidates' political party for such seat;
(b) Declaration
and statements as required by law or rules in support of the nomination; and
(c) The
fee required under the law for the time being in force for filing nomination
papers.]"
5. Mr. Mian Mumtaz Rabbani, the learned DAG, who was assisted
by Mr. Noor Hassan Malik, learned A.A.G representing the Respondent-ECP, on the
other hand, argued that Section 18-A is merely a mechanism for holding Election
on the reserved seat and the same section is subject to qualification mentioned
in Section 35 of the afore referred SLGA. The learned DAG specifically pointed
out sub-section (c) of Section 35(1) relating to the eligibility criteria for a
candidate to be elected or chosen as a member of the Council. As per the
Respondents’ contention since Petitioner is not a registered Voter in District
Council, therefore, he cannot contest the Election on reserved seat of a
District Council, but, the Petitioner is registered as a voter in Municipal
Committee, Moro, Ward-6, which falls within the Urban Area of Naushehro Feroze.
As per the learned DAG, in terms of Sections 8 and 15 of the SLGA, a clear
distinction has been made between Urban and Rural areas so as to ensure that
respective constituencies are represented by the person / members of that
particular area. It was further argued that scheme of Election as envisaged in SLGA
is quite different from RUPA, inter alia, as eligibility criteria to become
member are quite distinctly described in the two statutes. The main objective
of the present SLGA is that people / constituents of an area should be
represented by electing some one with whom they are acquainted with.
6. We have heard learned counsel for petitioner and
learned DAG/AAG and perused the record with their assistance. The submissions made
by learned DAG on the subject controversy on behalf of Respondents’ side are
not without substance. The nomination form filed by the petitioner with the
present petition shows that the petitioner has been shown as a registered voter
of "M.C-Moro, Ward-6".
The
above factual position, which is material in nature and goes to the root of the
subject controversy is not disputed as the same has also been mentioned in the
impugned order of 14.05.2016 passed by the Respondent No.2, being the Appellate
Authority, and has also not been challenged by the petitioner while filing
instant constitutional petition.
7. We
have examined the relevant provisions relating to Elections under SLGA carefully,
which lead us to the conclusion that the same have been enacted keeping in view
the spirit of local government representation, that can be summarized as it is
the sphere of government closest to the people. Thus, the Local Government
representatives are closest to the communities as they work at grass root level
and the main purpose of local government is to empower such representatives of the
people at the grass root level. Keeping in view this prime consideration, the
eligibility criteria mentioned in SLGA is to be interpreted; scope of which is
that if a candidate is a voter registered in an urban area, then he can only be
elected for Council falling within an urban area of a District as envisaged in
Section 8 and 15 of the SLGA, including, Town Committees and Municipal
Committees. Similarly, if a person is not registered in a Union Council or such
other category of rural area, then he is disqualified to represent a rural
area, irrespective of the fact that a candidate is a voter of the same
district, as vehemently argued by the petitioner that, since Moro falls within
District Naushehro Feroze there he eligible to contest election. Since
Municipal Committee (M.C) Moro undisputedly is an urban area of District
Naushehro Feroze, thus Petitioner is
not qualified to contest election of that District Council which in fact comprises
of rural area. Consequently, the above mentioned Section 18-A will neither apply
to the case of petitioner nor will rescue the petitioner from disqualification,
as he failed to cross the first hurdle of Section 35 of SLGA, which provides
the basic qualification to become a member, and since the said Section 35 is couched
in a negative language, it is to be interpreted strictly being mandatory in nature.
8. Secondly,
another cardinal principle that applies here is that what law does not permit
directly can not be allowed to be achieved indirectly. In this regard guidance
can be taken from the judgment of our Hon'ble Supreme Court reported as PLD
2011 SC 385 (Shahid Orakazi versus
"Another
mode of showing a clear intention that the provision enacted is mandatory is by
clothing the command in a negative, form. As stated by CRAWFORD:
"Prohibitive or negative words can rarely, if ever, be directory. And this
is so even though the statute provides no penalty for disobedience". As
observed by SUBBARAO, J.: "Negative words are clearly prohibitory and are
ordinarily used as legislative device to make a statute imperative."
61.
The learned counsel had further argued that it was an age-old principle too
well-established by now that what the law did not allow to be achieved directly
could never be permitted to be achieved indirectly. Reliance in this connection
had been placed on the judgment delivered by this Court in the case of Mian
Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) and
on the case of Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue,
Punjab and others (PLD 2003 SC 979).
62.
The word "EXTEND", according to the
"to
stretch out, to stretch forcibly, to lengthen, to prolong" and the word
"EXTENDABLE" means:--
"capable
of being extended or stretched and capable of being enlarged in length or
duration"
"NON"
is a Latin word which, again according to the
"a
negation or prohibition"
63.
The word "NON-EXTENDABLE" would thus mean, in the present context, a
duration of time which was incapable of being enlarged or extended or
lengthened or prolonged or stretched. And as has been mentioned above prefixing
the word "EXTENDABLE" with a negative command only indicates the
emphatic, prohibition vis-a-vis the enlargement of the duration of the period
in question. The intention of the law-giver by inserting the said word through
an amendment in the relevant provision is obvious i.e. that since the
Prosecutor-General could be called upon to prosecute the holders of the highest
of public offices in the country including the sitting Prime Minister,
therefore, he should be a person who should be placed above all kinds of
temptations and greed and should not at any time be looking for any favour from
any quarter which could become a hindrance in his way of fearlessly discharging
his said obligations. Needless to say that the competent authority in the
matter of appointment of the Prosecutor-General is the President which
President is obliged by the provisions of Article 48 of the Constitution to act
in the matter only on the advice of the Prime Minister which Prime Minister, as
has been noticed above, fell within the purview of the NAB Ordinance and thus
liable to be prosecuted by the Prosecutor-General. This is also a principle too
well established that where the intention of the legislature was clear and the
object for which a law had been enacted was patent and evident then the Courts
were not allowed to interpret such a law in a manner which could impede or
defeat the object for which such a law had been enacted. Reference may be made
to Mehram Ali's case (PLD 1998 SC 1445) and to Imtiaz Ahmed Lali's case (PLD
2007 SC 369). If the interpretation canvassed by Mr. Irfan Qadir, ASC was to be
accepted then the same would not only defeat the clear object of the provision
in question but would also lead to a blatant absurdity. It would be
preposterous and irrational to declare that once an incumbent of the office of
the Prosecutor-General had completed his term of three years then no one had
the competence to extend or enlarge the said term even by one day but the same
competent authority could instead grant him three years by appointing him
afresh to the same office. In the recorded judicial history such a situation
attracted judicial notice in the year 1889 in case of Madden v. Nelson (1889 AC
626) and it was Lord Helsbury who declared for the first time that what was not
permitted by law to be achieved directly could not be allowed to be achieved
indirectly. And the said principle has been repeatedly acknowledged and
followed by the Courts ever since then and the Courts in
9. In
view of hereinabove facts and the ratio of the above cited judgment we are of
the view that the impugned decision does not suffer from
any illegality or error which may warrant any interference by this court
in its constitutional jurisdiction, therefore, instant constitutional petition was
dismissed along with listed application vide short order announced by us on
20.05.2016, and these are the reasons for such short order.
JUDGE
JUDGE
Suleman
Khan/PA