ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-718 of 2022.

Before:

Mr. Justice Adnan-ul-Karim Memon,

Mr. Justice Abdul Mobeen Lakho,

Petitioner : Nazeer Ahmed Mirbahar.

Respondents : Akhtar Hussain & others.

Mr. Mohammad Afzal Jagirani, advocate for the petitioner.

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 has called in question the acceptance of the nomination form of respondent No.1 for the seat of Member from Ward No.3 of Town Committee Sita Road, Taluka K.N. Shah, District Dadu, inter-alia on the ground that he was /is not enrolled as a voter in the Electoral Roll of the Ward No.3 of Town Committee Sita Road and the order passed by the returning officer is sketchy and void as no reasons have been assigned to accept his nomination form from the said constituency.

2. At the outset we asked the learned Counsel as to how this petition is maintainable in terms of section 37(2) (b) of Sindh Local Government Act, 2013; beside the petitioner without exhausting the remedy of appeal before the District Election Tribunal.

3.             Mr. Mohammad Afzal Jagirani, the learned Counsel for the petitioner, inter alia, contends that respondent No.1 is not a registered voter of Ward No.3 of Town Committee Sita Road, therefore, he is not eligible to contest the elections from said ward. On the point of maintainability, he submitted that this Courtcan still entertain this petition on the ground that returning officer hasacted contrary to the provision of lawby accepting the nomination papers of the private respondents, which order is ultra vires and in violation of the principle of naturaljustice, therefore this petition is maintainable.

4. On the other hand, the learned Asst. Attorney General as well as the learned Asst. Advocate General, supporting the order of acceptance of nomination forms of respondent No.1 by the Returning Officer, submit that the petitioner has not availed the remedy of filing an election appeal before the District Election Tribunal, therefore, the petition is misconceived and liable to be dismissed.

5. We have given due consideration to the contentions of learned Counsel for the petitioner as well as the learned Asst. Attorney General and the learned Asst. Advocate General and have perused the material available on record.

6. Primarily, there is no rule, aboutthe issuance of the writ of certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in concluding as to whether it should, in the exercise of its discretion, issue a writ of certiorari to quash the order and decisions of the election authority and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies if any. However, this court will readily issue certiorari in a case where there has been a denial of natural justice before a Court of summary jurisdiction.

7. There are at least two well-recognized exceptions to the doctrine about the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move this Court under Article 199 of the Constitution for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. However, in the present case, nothing has been brought on record to suggest that the petitioner objected to the nomination papers of the respondent to the above extent, thus at this stage no inference could be drawn against him.

8. On merits, 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) …..

9. 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.

10. 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) ..

11. 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.

12. 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 areas as discussed supra which are part of the said constituency. 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.

13. Because of the above facts and circumstances of the case, the instant petition is devoid of merit and is accordingly dismissed with no order as to costs.

Judge