ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Constitutional Petition No.D-680 of 2022.
Before:
Mr. Justice Adnan-ul-Karim Memon,
Mr. Justice Abdul Mobeen Lakho,
Petitioner : Khalid Hussain Agro,
Respondents : Mumtaz Ali Panhwar & others.
Messrs Sajid Ali Gorar and Sher Ali Chandio, advocates for the petitioner.
Mr. Abdul Khalique Bughio, 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 was one of the candidates in the Local Government elections 2022. Upon scrutiny, his nomination papers were accepted by the learned Returning officer, however, on appeal, his nomination papers were rejected by the learned Appellate forum vide order dated 23.6.2022, on the premise that the nomination papers of his proposer had already been rejected; and, he was/is not enrolled as a voter in the Electoral Roll of the ward No.10 of Municipal Committee (MC) Mehar, rather, he belongs to ward No.9 of MC Mehar. An excerpt of the order is reproduced as under:-
“In my opinion, this provision only relates to subscription of proposer and seconder to any nomination other than the first nomination as proposer and seconder and thus provision does not and this not disqualify a person from contesting elections only for the reasons that proposer or seconder has himself filed nomination papers. Even otherwise, the nomination papers of Respondent No.6, who is the proposer of respondent No.5, have already been rejected. Hence nomination form of respondent No.5 was rightly accepted by R.O. Thus, this Appeal to that extent is rejected.
In view of above, the impugned order of Returning Officer is partly set aside to the extent of the nomination papers of respondent No.4 and resultantly his nomination form is hereby rejected. Whereas impugned order to the extent of acceptance of nomination form of respondent No.5 is maintained.
Nomination form of Respondent No.4, Khalid Hussain is
rejected. Nomination form of Respondent No.5 Jamshed Ali is allowed.”
2. Mr. Abdul Khalique Bughio, learned counsel for the private respondent no.1 has referred to section 35 (1) (2) of the Sindh Local Government Act, 2013, and submitted that a person shall not be qualified to be elected or chosen as a member of the Council unless he is enrolled as a voter in the Electoral Roll of the concerned Council or Ward. In support of his contentions, he relied upon the case of Haji Khan Bhatti v. Province of Sindh(2016 SCMR 1970), WAK Limited v. Collector Central Excise and Sales Tax(2018 SCMR 1474),and unreported orders 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 learned Division Bench of this Court in C. P. Nos.D-3965 of 2022 and prays that the petition is devoid of merit and liable to be dismissed.
3. The aforesaid stance has been refuted by the learned counsel for the petitioner, inter-alia on the ground that before the Appellate forum, the petitioner's case was not considered in the light of section 37(2) (b) of Sindh Local Government Act, 2013. He further contended that the provisions of the Sindh Local Government Act, 2013 do not restrict that a candidate must be an enrolled voter of the concerned Ward. He added that the private respondent's appeal before the Appellate Authority was erroneously allowed; that the learned appellate forum failed to consider the ground that the Returning Officer accepted his nomination form on the premise that the petitioner was enrolled as a voter on the electoral roll of a Ward i.e. of the Municipal Committee, Ward No.10 Mehar; that the learned District Election Tribunal committed illegality in allowing the appeal and rejecting the nomination form of the petitioner. He further contends that the proposer and seconder of the petitioner are duly enrolled voters of Ward No.10 of Municipal Committee, Mehar, therefore, the returning officer rightly accepted the nomination form of the petitioner. 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 15.7.2022 in C. P. No.D-2565/2022 passed by a Division Bench of Circuit Court of this Court at Hyderabad 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 of 2022, and submits that the impugned order dated 23.6.2022 passed by the District Election Tribunal/District Judge, Dadu may be set aside the nomination form of the petitioner may be restored.
4. The learned Asst. Attorney General as well as the learned Asst. Advocate General, do not support the impugned order and recorded their no objection if the petition is allowed and the nomination form of the petitioner is restored.
5. We have heard the learned Counsel for the parties and perused the record on the subject issue well as case law cited at the bar.
6. The petitioner claims to be an enrolled voter on the electoral rolls of the Municipal Committee, Ward No.10 Mehar, which is a Council located in the urban area of District Dadu in terms of section 37(2) (b) of Sindh Local Government Act, 2013 as amended up to date and therefore can contest the ensuing election which is scheduled to take place on 24.7.2022. Per learned Counsel before the Appellate forum, the petitioner's case was not considered in the light of section 37(2) (b) of Sindh Local Government Act, 2013. He further contended that the provisions of the Sindh Local Government Act, 2013 do not restrict that a candidate must be an enrolled voter of the concerned Ward. He added that the private respondent's appeal before the Appellate Authority was erroneously allowed; that the learned appellate forum failed to consider the ground that the Returning Officer accepted his nomination form on the premise that the petitioner was enrolled as a voter of the electoral roll of a Ward i.e. of the Municipal Committee, Ward No.10 Mehar.
7. 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. 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. 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. Section 37 of Sindh Local Government Act, 2013 is clear in its terms, for convenience sake an excerpt of the same reads as under:-
“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:
1 [* * * * * * * *]
2 [(2) (a) Candidate for the District Council, membership, may contest the election from any Union Council of the District. (b) Candidate contesting for 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) …..
8. From the perusal of the above provision including Sub-Section 2(b) and the Proviso thereof, it reflects 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.Besides Section 35 (1) (c) is also clear in its terms, which resolves the controversy at hand and reads as under:-
"35. Qualifications for candidates as members. (1) A person shall not be qualified to be elected or chosen as a member of the Council unless-
(a) ..
(b) ..
(c) he is enrolled as a voter in the electoral roll of the Council or ward".
9. At this stage learned counsel for the private respondent has emphasized that after dividing a District into various Councils, each Council is assigned a particular local area; that the local area of each Council is then further divided into Wards, each having its definite locality; that the voters of each Ward of a Council constitute its basic electoral unit, who elect members from their respective wards based onthe adult franchise; that Councils are Town Committees, Municipal Committees, District Municipal Corporations, Municipal Corporations, Metropolitan Corporations, and District Councils; that the provision of section 35(1)(c) of the Sindh Local Government Act, 2013, provides that a person shall not be qualified to be elected or chosen as a member of the Council unless he is enrolled as a voter in the electoral rolls of the Council or Ward. When section 35(1)(c) states that a candidate has to be enrolled as a voter in the electoral rolls of the Council or Ward, it uses two separate terms i.e. 'the Council' as well as 'Ward'; that these two terms have been used to deal with two distinct situations. Where a member of a Council is to be directly elected from a Ward based onthe adult franchise of the electors then the candidate has to be enrolled as a voter of that particular Ward, otherwise, his candidature would be liable to be rejected, hence the term 'Ward' has been used in clause (c) of section 35(1) for such candidates; that every Ward of a Council should have its representative on the Council.
10. The voter is a person who is enrolled as a voter on the electoral roll of any electoral area in a council/constituency/Ward. This proposition makes it abundantly clear that enrollment in the electoral roll is the fundamental requirement for a person to be a voter of a particular electoral area/council and Ward, mere residing in an area or having a temporary or permanent resident in any part of the electoral area of a council/constituency/Ward is not a determinative factor to term a person as a voter. A criterion for having a place of residence in an electoral area is to be generally included within the electoral roll, however, the determinant factor is not being a resident of the constituency but being enrolled in the electoral roll of any of the electoral areasas discussed supra which are part of the said constituency.
11. Primarily, 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.
12. in the present case, the petitioner claims to be an enrolled voter on the electoral rolls of the Municipal Committee, Mehar, 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 Municipal Committee, Mehar, 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.
14. Instant petition is hereby allowed in the aforesaid terms.
Judge
Judge