IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitution Petitions No. D-650, 653 & 665 of 2022

Before:

Justice Nadeem Akhtar

Justice Zafar Ahmed Rajput

1. C.P. No. D–650 of 2022: Ali Ahmed & 4 others v. Federation of

Pakistan & others

2. C.P. No. D–653 of 2022: Muhammad Suleman & 2 others v. Federation of Pakistan & others

3. C.P. No. D–665 of 2022: Karam Deen v. Federation of Pakistan & others

M/s Sarfraz A. Akhund, Amir Ali Bhutto and Achar Khan Gabol, Advocates for the Petitioners.

M/s. Jamshed A. Faiz and Sunder Khan Chachar, Advocates for the Respondent No.10 (Haji Khan Mahar).

Mr. Ali Raza Pathan, D.A.G. Mr. Ali Raza Balouch, A.A.G. and Mr. Zeeshan Haider Qureshi, Law Officer, E.C.P.

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O R D E R

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ZAFAR AHMED RAJPUT, J.– The respondent No.10 submitted his nomination papers to contest Local Council Elections-2022 for the seat of Member District Council (Rural) from two Union Councils, namely, U.C No.8, Ali Bagh and U.C No.21, Ali Mahar of District Ghotki, which were rejected by the Returning Officer/respondent No.7, vide orders dated 16.05.2022, on the ground that the said respondent is not enrolled in electoral list of Union Councils and he is registered in the electoral list of Town Committee, Khan Garh, Ghotki and, therefore, being a voter of Town Committee/ urban area, he is not eligible to contest as candidate of Union Councils/ rural area. Against that rejection, the respondent No.10 preferred only one Election Appeal bearing No. 16/2022 against the order passed on his nomination for the seat of UC-8 Ali Bagh, which was allowed by the Appellate Authority/Appellate Tribunal, Ghotki, vide order dated 27.05.2022, by setting aside the order of Returning Officer and observing that Section 37(2)(a) of Sindh Local Government Act, 2013 (“the Act”) provides that the candidate contesting District Council Member, may contest the election from any Union Council of the District. It is against that order, that the listed Const. Petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 have been preferred by the petitioners, who are voters and contesting candidates of the aforesaid Union Council No.8, Ali Bagh.

2. Learned counsel for the petitioners have contended that the Appellate Tribunal misinterpreted the provisions of Section 37 of the Act and passed the impugned order, which is not sustainable in law; that the respondent No.10 is not eligible to contest for the seat of Member District Council (Rural), as he is not voter of any of 66 Union Councils of District Ghotki but of Town Committee, Khan Garh (Urban), therefore, he is not entitled to contest election from rural seats in Union Council; that the Appellate Tribunal failed to consider that the defect in the nomination of respondent No.10 was of a substantial nature which cannot be remedied with. In support of their contentions, learned counsel have relied upon the case of Haji Khan Bhatti vs. Province of Sindh through Provincial Election Commission and others (2016 SCMR 1970) and unreported order of this Court passed in C.P. No.D-586 of 2022 (Re- Mansoor Ali Siyal & another vs. Federation of Pakistan and 4 others).

3. On the other hand, learned counsel appearing for respondent No.10 has fully supported the impugned order on the ground that the petitioners have no locus standi to maintained instant petition as they did not file any objection before the Returning Officer as well as Appellate Tribunal against the nomination of respondent No.10; that the respondent No.10 filed an application before District Election Commissioner, Ghotki (“D.E.C”) for changing/ correction of his name in the voter list of Town Committee, Khan Garh and shifting of the same to Deh Dumano, Taluka & District Ghotki, which was not decided by him, hence, the respondent No.10 preferred C.P. No.D-483 of 2020, which was disposed of by this Court vide order dated 25.05.2022 with the directions to the D.E.C to decide the petitioner’s application already filed before him in accordance with the applicable law and rules within two days from the date of order.

4. The learned D.A.G., A.A.G. and Law Officer of ECP; however, do not support the impugned orders in view of Section 37(2) (a) of the Act. They have maintained that the respondent No.10 approached to D.E.C. for shifting of his vote after freezing of Electoral Rolls on account of forth coming election of Local Government in Sindh Province; while as per rules the cutoff date to ascertain and entertain such application was 13^th April 2022.

5. Heard, record perused.

6. We deem it appropriate to reproduce relevant provisions of sections 35 and 37 of the Act, as under:-

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

(a) ---------------------------------

(b) ---------------------------------

(d) ---------------------------------

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:

(2) (a) Candidate contesting for the District Council membership, may contest the election from any Union Council of the District

(b) Candidate contesting for the 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) -----------------------------------------

7. It appears from the perusal of above-mentioned provisions of law that under section 35 (c) of the Act, a person qualifies to be elected or chosen as a member of the Council if he is enrolled as a voter in the Electoral Rolls of the concerned Council or ward. However, under section 37 (2) (a) of the Act, a person contesting for the District Council membership, may contest the election from any Union Council of the District and the persons contesting for the membership of Town Committee or Municipal Committee may contest the election from any ward of the respective Committee provided that their proposers and seconders are registered voters of the concerned Union Council or ward as the case may be.

8. It also appears from the perusal of the record that D.E.C, vide order dated 26.05.2022 declined the request of respondent No.10 for transfer of his vote on the ground that the same was not entertainable as the provision of section 39 of the Election Act, 2017 put bar on him to entertain any request during election programme; hence, the application could not be entertained before the culmination of election process.

9. In the instant case, it is an admitted position that the petitioner intended to contest for the membership of District Council (Rural) but is not registered voter of any concerned Council of the said District Council i.e. rural area of the District Ghotki but of Town Committee, Khan Garh, which is an urban area of the said District. In the case of Haji Khan Bhatti (supra), the Hon’able Supreme Court has held that the petitioner, being a voter of Municipal Committee Moro, District Naushahro Feroze, which is a Council in urban area of the District, on account of restrictions contained in Section 35(1)(c) of the Act cannot stand as a candidate on the reserved seat of District Council Naushahro Feroze which under Section 15 (b) (ii) of the Act is constituted purely for rural area of a District.

10. In the instant matter, it is an admitted position that the respondent No.10 is not a registered voter of the concerned Union Council (rural area) and; therefore, his nominations were rejected by the Returning Officer on the said ground but the Appellate Tribunal set aside the order of Returning Officer vide impugned order, which is result of misinterpretation of section under section 37 (2) (a) (b) of the Act.

11. So far objection regarding maintainability of these petitions are concerned, we are of the view that since at the outset the order of the Returning Officer was in accordance with Rule 18(iii) of the Sindh Local Council (Election) Rules, 2015, whereby, the nomination of the respondent No.10 was rejected, there could not have been any objector before the Returning Officer; nor any Appeal could have been filed by anyone except Respondent No.10; and it is only after passing of the order by the Appellate Tribunal that anyone including the petitioners could have been aggrieved. It is an admitted position that at least the petitioners in C.P No. 650 of 2022 are the candidate on the seat of Member District Council Ghotki; therefore, in our considered view, they can maintain this petition. There is another aspect of the matter as well. The issue here is not of any disqualification of respondent No.10 on merits or as to ineligibility due to failure to meet any of the prescribed conditions of being a valid candidate. It is just because of the fact that an attempt has been made by him to contest elections in a Union Council Town where his vote is not registered. In that case, he stands disqualified for the entire District Council concerned irrespective of any objections to that effect.

12. As to the contentions of learned counsel for the respondent No.10 regarding decision of D.E.C. on the application of respondent No.10 for shifting of his vote, we are of the view that once an order was passed by D.E.C. on 26.05.2022, the respondent No.10 was not entitled to contest election for rural seats in a District Council being voter of urban area where his vote was registered whether rightly or wrongly. The issue here is not of any disqualification of respondent No.10 on merits or as to ineligibility due to failure to meet any of the prescribed conditions of being a valid candidate. It is just because of the fact that an attempt was made by him to contest elections in a Union Council where his vote is not registered.

13. For the foregoing facts and reason, these Petitions are allowed by setting aside the impugned order, dated 27.05.2022, passed by the Appellate Tribunal and maintaining the order, dated 16.05.2022, passed by the Returning Officer/respondent No.8. Consequently, the nomination of the respondent No.10 from Union Council No.8, Ali Bagh, District Ghotki stands rejected. Office to communicate this order to the Election Commission.

14. All listed Petitions stand disposed of with pending applications.

J U D G E

Faisal Mumtaz/PS