IN THE HIGH COURT OF SINDH AT KARACHI
C.P. NO. D-4924 OF 2013.
Present:
MR. JUSTICE MUHAMMAD ALI MAZHAR, &
MR. JUSTICE SADIQ HUSSAIN BHATTI
Date of Hearing: 5-12-2013.
Petitioner, Abdul Rasheed, through Mr. Yawar Farooqui and Mr. Irfan Memon, Advocates.
Respondents 1 to 4, through Mr. Khalid Javed Khan, Learned Advocate General Sindh, Mr. Adnan Karim and Mr. Abdul Jalil Zubedi, AAG.
Mr. Abdullah Hanjrah, Law Officer, ECP, Mr. S. Rashid Hussain, Election Officer, ECP and Mr. Abdul Aleem Ghazi, Assistant Commissioner Census are also present.
JUDGMENT
Muhammad Ali Mazhar, J:- The Petitioners have challenged the Order dated 8.11.2013, passed by the Appellate Tribunal/Commissioner Hyderabad, Division in Appeal No. 1 to 23/2013 and the Notification dated 26 September, 2013 whereby the Deputy Commissioners of respective Districts were appointed Delimitation Officers in respect of Local Councils established under the Sindh Local Government Act, 2013. The petitioners have also challenged the delimitation process relating to Ward No. 41 to Ward No. 44, Municipal Committee Nawabshah on the ground that the delimitation process was completed in violation of the Guidelines as well as the Sindh Local Government Act, 2013 and the Sindh Local Councils (Election Rules) 2013.
2. In the Guidelines it was provided that the area should be as far as possible compact, contiguous and territorial unity, population, boundaries of Local Councils should as far as possible not cross the revenue units viz. Deh, Tapa, Circle, Taluka or District. It was further mentioned in the Guidelines that there will be as far as possible minimum changes in the present set up.
3. In the procedure laid down for the delimitation, it was further provided that the Deputy Commissioner concerned shall prepare preliminary proposals and objections shall be invited. For the purpose of election, a local area shall be divided into electoral units keeping in view the number of seats in the council and the population of local area. It was further provided that in rural areas as far as possible, delimitation of present Union Councils may not be disturbed and that the Tribunals will consider the representations and hearing those who wish to be heard, make such amendments, alterations or modifications in the preliminary list so published and after disposal of all representations, the Election Commission of Pakistan shall arrange the final list of electoral units published in the Official Gazette.
4. The learned counsel for the petitioner argued that on 8th October, 2013 objections for delimitation were invited in the daily newspaper “Juraat” and in consequence thereof, the petitioner filed his objections before the Delimitation Officer of District Benazirabad. Since objections raised by the petitioners were not considered in relation to Ward No. 41 to Ward No.44 by the Delimitation Officer, they filed appeals before the Appellate Tribunal/Commissioner, Hyderabad Division, which was dismissed vide order dated 8.11.2013. The petitioner raised the following objections before the appellate tribunal:
i) The delimitation order does not furnish the earlier / previous position of wards;
ii) Certain rural areas that does not qualify to be urban have been included in Municipal Committee limits;
iii) The earlier population i.e. 189244 now has been shown to be 190995 and the increase is not explained, 14 Wards were indicated where population has exceeded;
iv) Composition of wards (dimensions etc.) is not appropriate;
v) Some of the wards are bifurcated by barriers like Gajra Wah and Railway Line;
vi) Some area of Taluka Sakrand has been included in Municipal Committee limits;
vii) The people from Deh 87 and 87-A Nasrat also objected to inclusion in Municipal Committee Nawabshah limits.
5. Since the appellate tribunal failed to consider the objections against the delimitation, the petitioners have filed this petition with the prayer that the impugned order may be set aside and the earlier composition of the Town Committee be restored to its original position.
6. It transpires from the impugned order that the Delimitation Officer before the tribunal admitted that the discrepancy in population in some wards for the reasons that Census Blocks were also to be considered. It was further admitted that the population of Census wards since not uniform, some inconsistencies have been caused. It was further stated that areas, which in view of the petitioners are rural, have begun to develop quite close to the urban areas and it will expedite the process of development. He explained the rise in population by stating that it was because of inclusion of some new areas. This inclusion is in fact has also been challenged by the petitioners.
7. After considering the response of the delimitation officer, the appellate tribunal, without discussing the objections or passing any speaking order, simply observed that the objections raised by petitioner are quite adequately responded and, according to his wisdom, there was no substantial reason to re-do the whole exercise afresh. Hence, he upheld the delimitation order in respect of Municipal Committee, Nawabshah and the appeals were dismissed.
8. The learned Advocate General Sindh filed comments on behalf of respondent No. 4 and he argued that some parts of the adjoining areas were already part of the Municipal limits; people of these areas are enjoying best of civic and municipal amenities; the inclusion is based on the reason of rapid urbanization of these areas. He further argued that the delimitation officer followed the guidelines of the Sindh Local Government Department; the adjoining areas are in very close proximity of the city centre and there has been significant rural to urban migration in the area. He also argued that no substantial question of law has been raised and there is no case made out hence the petition is liable to be dismissed. The representative of respondent No.6 took the stand that delimitation process and exercise was to be completed under the Sindh Local Government Act, 2013 and the Sindh Local Councils (Election Rules) 2013 and the respondent No.6 has no role to play in the exercise of delimitation.
9. Heard the arguments. Since the matter needs urgent attention of this court due to paucity of time as the date of Sindh Local Councils Election is fast approaching, hence by consent of the parties and their learned counsel, it was agreed that let this petition be disposed of at katcha peshi stage. It is an admitted fact that through the impugned delimitation process, some rural areas have been included in the urban area for which a proper mechanism is provided under Section 13 of the Sindh Local Government Act, 2013. As per section 13(1) of the said Act, the Government may, after inviting objections from the residents of an area and hearing those from amongst them who wish to be heard, declare by Notification such area, to be an urban area or rural area, as the case may be. The first and foremost argument of the learned counsel for the petitioners is that no such objections were invited in terms of Section 13 (1) of the Act of 2013 for declaration of a rural area as urban area prior delimitation, so the inclusion of rural area in the urban area in the exercise of delimitation is illegal. The learned counsel for the petitioner further referred to Section 153-A of Act 2013 which provides that where power is conferred on any person, authority or body, officer or Council under the provisions of this Act, such power shall be exercised fairly, justly, reasonably and in public interest provided that the action taken in exercise of power conferred the provisions of this Act shall be proportionate keeping in view all the facts and circumstances.
10. We have also seen the proposal made by the delimitation officer available at page 41, dated 25 October, 2013 in which also he has not discussed the objections, if any, raised by any person in terms of public notice and non-mentioning and or non-adverting to the objections makes the entire exercise redundant and superfluous as there was no purpose to invite objections against delimitation if the same were not to be considered, addressed or discussed in the final proposal for delimitation.
11. The Appellate Tribunal has only reproduced the response made by the delimitation officer and even it has failed to discuss the implications and repercussions of non-compliance of the provisions of Section 13 of the Act of 2013. No findings have been given as to why, if some rural area has been included in the urban area, whether the provisions made under Section 13 of the Sindh Local Government Act, 2013 have been followed or ignored.
12. It is also a fact that delimitation was to be made on the basis of 1998 census which fact has also been admitted by the learned AG. However, in the Appellate Order it is mentioned that census wards, since not uniformed, therefore some inconsistencies have been caused and another justification was given that since the rural area is developing it was included in the urban area. Again nothing has been observed either in the proposal of delimitation or the impugned order whether it was done after complying with the requirement envisaged under Section 13 of the Sindh Local Government Act, 2013 or not?.
13. Chapter II of the Sindh Local Councils (Election Rules) 2013 pertains to delimitation and electoral units. Under Rule 8, the delimitation officers and appellate tribunal have been notified. While under Rule 9, the responsibility has been entrusted upon the delimitation officer/appellate tribunal to arrange preliminary list of electoral units delimited under rule 8. It is open to any person who is entitled to vote he may make representation in respect of the delimitation to such officer and authority notified under rule 8.
14. Under Rule 10, the appellate tribunal has been conferred powers to decide the representation and hearing those who wish to be heard and make amendments, alterations or modification in the preliminary list published under rule 9. The appellate tribunal may also revise the final lists of delimitation of a council by recording reasons. A simple glimpse to Rule 10 makes it abundantly clear that vast powers have been given to the appellate tribunal to hear the appeals and even by recording reasons, the tribunal may even revise the list and notify the same for general information.
15. It is well settled proposition of law that appeal is a continuation of original proceedings. It is the responsibility and obligation of each appellate authority to decide the appeals on merits and not in a slipshod manner. The plethora of dictums laid down by the superior courts do show that the appellate authority ought to decide the appeals in accordance with justice, equity and good conscience to adjust the rights of the parties and to obviate the coming into existence of impossible, contradictory or unworkable orders. Even under Section 153-A of Sindh Local Government Act, 2013, much emphasis has been made that where power is conferred on any person, authority or body, officer or Council under the provisions of this Act, such power shall be exercised fairly, justly, reasonably and in public interest. The pros and cons of the matter lead us to the conclusion that the appellate tribunal has failed to exercise its jurisdiction in accordance with law and the impugned order is liable to be set aside. The grant of relief under Article 199 of the Constitution of Pakistan is intended to foster the administration of justice and turn down the orders which are self-evidently arbitrary, capricious and suffering from misreading of record. Where the order impugned is found illegal, it can be rectified, rescinded and altered. If any order is passed in violation of law or nullity in the eyes of law, this court in exercise of its constitutional jurisdiction may refuse to perpetuate something which is obviously unjust and unlawful.
16. As a result of the above discussion, the impugned order dated 8.11.2013 passed by the Appellate Tribunal/Commissioner, Hyderabad Division in Appeal No.1 to 23/2013 is set aside and matter is remanded back to the Appellate Tribunal/Commissioner, Hyderabad Division with the directions to decide the appeals afresh within a period of ten days positively so that the schedule of forthcoming elections of local council shall not be affected. Petition stands disposed of along with listed application.
Judge
Judge