ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Constt: Petition.No.D-798 of 2018
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Date of hearing |
Order with signature of Judge |
Before:
Mr. Justice Khadim Hussain Tunio,
Mr. Justice Irshad Ali Shah,
· For orders on maintainability of M.A.No.3865/2018
· For orders on maintainability of main case.
Date of hearing : 28.11.2018
Date of decision: 19.02.2019
Mr. Ashfaque Husain Abro, Advocate for the petitioner
Respondent No.9 in person.
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The petitioner by way of instant constitutional petition has prayed for the following relief;
i). To declare Election Schedule 2019-2021 issued by the Respondent Nos.7, 8 and 9 is illegal, void, ab-initio, without lawful authority, malafide and of no legal effect.
ii). To issue a writ directing the respondent No.3 to supervise and conduct elections of Hindu Panchayat of Larkana.
iii). To direct the respondent Nos.7, 8 and 9 to amend the bye laws and make the same in consonance with the constitutional provisions mentioned in this petition.
iv). Declaration that acts of the respondents No.7, 8 and 9 as stated in the petition amounts to violation of the fundamental and constitutional rights of the petitioners as guaranteed vide Articles 4, 24 and 25 of the Constitution, 1973.
v). To direct the respondents No.7, 8 and 9 not to harass and humiliate the petitioner, and also direct the respondents to avoid occurrence of any act which is not permissible under the Constitution of Pakistan, 1973.
vi). To direct the respondents No.1 to 5 to strictly act in accordance with law and provide the necessary protection to the petitioner to secure and protect his property/lands.
vii). Any other or additional relief as this Hon’ble Court may deem just and fit in the circumstances of the case.
viii). Cost of proceedings.
2. In order to complete the narration, it would be necessary to state that as per petitioner, she had been elected chairperson of Hindu Panchayat Larkana for year 2013-2015. On expiry of her tenure as chairperson, she submitted her nomination paper to contest the election of Hindu Panchayat for year 2016-2019 but she was not allowed to contest such election on the basis of alleged gender discrimination, then on intervention of this Court (High Court of Sindh, Circuit Court, Larkana), with mutual consent of the parties she was allowed to contest such election. Now the respondent No.7 being Mukhi of Hindu Panchayat Larkana has issued schedule to conduct fresh election but as per petitioner she is not being allowed to contest such election. It was in these circumstances; the petitioner has filed the instant constitutional petition.
3. It was inter-alia submitted by respondents No.7 to 9 in their Para-wise comments that no copy of By-laws was provided to them prior to year 2013, as such the petitioner was allowed to contest that election which he won and remained chairperson of Hindu Panchayat Larkana for year 2013-2015. Subsequent to it, the constitutional petitions were filed before this Court by different persons and they are conducting the elections as per their By-laws. By submitting so, they sought for dismissal of the instant constitutional petition for more than one ground.
4. It is contended by learned counsel for the petitioner that Hindu Panchayat Larkana by denying the petitioner the right to contest the election has committed the violation of Article-4, 17 & 25 of the Constitution of Islamic Republic of Pakistan, 1973. By contending so, he sought for acceptance of instant constitutional petition as prayed for.
5. It is contended by respondent No.9 in person on his behalf and on behalf of respondents No.8 and 9 that their Bye-laws do not permit the petitioner being lady to contest the brothery election. By contending so, he sought for dismissal of the instant constitutional petition.
6. We have considered the above arguments and perused the record.
7. The question which are to be resolved with regard to the maintainability of instant constitution petition would be whether the Hindu Panchayat is a ‘person’ performing public function under Article 199(1)(a) of the Constitution. If yes? Whether a writ could be maintained against Hindu Panchayat Larkana in terms of Article 199(c) of the Constitution.
Article 199(1)(a) of the Constitution reads as follows;
Article 199. Jurisdiction of High Court.- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect;
8. Apparently Hindu Panchayat Larkana is not a registered body, same at the most could be said to be assembly which is formed by the Hindu elders/nekmards to redress the grievance which are being faced by their community. It has got no influence or funding by Federal, Provincial or Local Government, whatsoever of any nature. In that situation, Hindu Panchayat Larkana could hardly be termed as a ‘person’ which may justify issuance of writ against it, as is sought for by the petitioner by this Court in exercise of its constitutional jurisdiction under the pretext that in past she had been chairperson of Hindu Panchayat Larkana.
9. In the (unreported) case of (“Civil Review Petitions No.412 and 413 of 2014 in Civil Appeals Nos.1233 & 1224 of 2014) regarding “Pakistan Olympic Association through its President v. Nadeem Aftab Sindhu etc” it has been held by Honourable Apex Court that;
“In other words, Article 199(1)(c) supra is contingent on the fact that the matter should involve the enforcement of fundamental rights guaranteed under the Constitution. In the instant case, the fundamental rights being relief on by the learned counsel in making such argument are Article 9, 14, 17, 18, and 25 of the Constitution, all of which do not seem relevant in the instant matter. We do not find that the internal functioning of the Association, particularly the method of elections of certain posts thereof, deprives persons of the right to life or liberty (Article 9 of the Constitution), freedom of association (Article 17 of the Constitution), trade, business or profession (Article 18 of the Constitution), or is discriminatory in any manner whatsoever (Article 25 of the Constitution). Therefore, we do not find that a writ is maintainable against the Association under Article 199(1)(c) ibid.
10. This petition, apart from being not maintainable under the law, in view of above consideration, even fundamental rights, as claimed to have been violated, are not within the frame. Petitioner claimed that her fundamental rights, as available to her in terms of Article 4, 24 and 25 of the Constitution of Pakistan, have been violated. We shall be dealing with these Articles independently.
11. Article 4 of the Constitution of Pakistan deals with the individual’s right to be dealt with in accordance with law. The petitioner
has failed to demonstrate as to which piece of legislature has deprived her in dealing with her normal affairs of life. A private association of a person having its own aims and objects cannot be said to have deprived petitioner of her rights as it may be a class of persons who have associated themselves to form an association and petitioner cannot be coerce or enforce her rights to be followed by such Association.
12. Article 24 of the Constitution of Pakistan also has no applicability to the case in hand. Similarly Article 25 of the Constitution talks about the equality of citizens. The concept of equal protection of law envisages that a person or class of persons should not be denied the rights which are enjoyed by other persons in the same situation. It must however be kept in view that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the equality of class, particularly the provisions about equal protection of law, does not mean that all citizens shall be treated alike under all set of circumstances and conditions, both in respect of privileges conferred and liabilities imposed. Law provides that equal protection of law does not mean that it secures to all persons the benefit of same law and the same remedies; it only requires that all persons similarly situated or circumstanced shall be treated alike.
13. It is thus a class of persons to whom equal protection is guaranteed provided the classification is not arbitrary, capricious or in violation of doctrine of equality. Thus, a private association of persons having their own aims and objects, which do not provide a female, a gender to be a member of such association, is not a discrimination amongst a class chosen by the Association.
14. A landmark judgment in this regard is the case of Pakcom Limited v. Federation of Pakistan reported in PLD 2011 SC 44 in which it has been held as under;
“(i) The expression ‘equality before law’ or the ‘equal protection of law’ does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike.
(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the state has no power to distinguish and classify persons or thing for the purpose of legislation.
(iii) The guarantee of equal protection of law forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The state has the power to classify persons or things and to make laws applicable only to the persons or things within the class.
(iv) The classification, if it is not to offend against the constitutional guarantee must be based upon some intelligible differential bearing a reasonable and just relation to the object sought to be achieved by the legislation.
(v) Reasonableness of classification is a matter for the courts to determine and when determining this question, the courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts
which can reasonably be conceived to exist at the time of legislation.
(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge to the needs of particular classes and the degree of harm so as to adjust its legislation according to exigencies found to exist.
(vii) One who assails the classification must show that it does not rest on any reasonable basis.
(viii) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards or norms for the guidance of the designated authority in exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the State would be condemned as unconstitutional.
(ix) Where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or things, without laying down any principle or policy to guide the Government in exercise of discretion, the statute will be struck down on the ground of making excessive delegation of power to the Government so as to enable it to discriminate between the persons or the things similarly situated.”
15. Similar principles were also considered by Hon’ble Supreme Court in the case of Government of Balochistan v. Azizullah Memon reported in PLD 1993 SC 341.
16. In view of above facts and circumstances, the petition fails on both the counts i.e. neither any discrimination was exercised in the formation of Association by the Hindu Panchayat Committee nor a writ can be issued under the above circumstances against a private Association having their own aims and objects which neither deprive the petitioner from any fundamental right nor any of her individual right.
17. In view of the above, the instant petition is misconceived and hence the same is dismissed.
Judge
Judge..