ZAHID KURBAN ALAVI, J.--- Through this petition, ten individual voters of the various Union Council of District Khairpur have prayed, inter alia, for the following relief:-
(a) To issue writ of mandamus directing the respondents Government Functionaries to first hold the Elections to the vacant seats as per Proforma Annexure "A" issued vide letter No. LGSO/1160, Khairpur, dated 19.9.2003, by the Local Government Support Officer, Khairpur, for the purpose of completing the Electoral College of the Elections of Naib-Zila Nazim, Khairpur and after notifying the said vacant seats, as declared elected through Notification, then alone the election to the Office of Zila-Naib Nazim, Khairpur, could be held.
(b) To hold that the Election of the Office of NaibZila Nazim, Khairpur, which is being held, under the impugned Notification No. F.
26(17)/2003-Elect-Il(1), Islamabad, the 11th September, 2003, is partially illegal, improper, without jurisdiction, being violative of law, to the extent of holding Elections to the Office of Zila-Naib Nazim, Khairpur, as the same could not be held, without completing the Electoral College as provided under the law.
(c) T To restrain the respondents from holding the Election to the Office of the Naib-Zila Nazim, Khairpur under the impugned Notification, and all the subsequent Schedules, Programs issued their under, for the purpose of bye-elections to the, Post of Zila-Naib Nazim, Khairpur, through themselves, or their sub ordinates, agents, authorized in their behalf, without completing the.
Electoral College of the Constituency of Naib-Zila Nazim, Khairpur.
3. The petitioners are registered voters of khairpur District and they have legal right under the law to contest objections and to cast their votes in favour of their candidates.
4. Admittedly, a total of 104 seats are presently lying vacant in the various Zila, Taluka and Town Councils of the Khairpur District.
5. The Provincial Election Commissioner (Sindh), Karachi, respondent No. 4, had announced the Election Schedule in the month of September, 2002 for the conduct of bye-elections to the vacant seats of Union Nazim/Naib Union Nazim of District Khairpur vide Notification dated 21st September, 2002 which contains the Schedule for the Elections to the vacant seats of Union Nazim/Naib Union Nazim and the Schedule of the list of appointment of District Returning Officers, Returning Officer and Assistant Returning Officers.
6. The respondents Government postponed the said Elections vide Notification dated 21st September, 2002 and till date the elections have not yet taken place and the time Schedule fixed in the notification has also expired and no such new Time Schedule is announced by the respondents Nos. 2, 3 and 4.
7. Thereafter, the respondent No. 2 (Chief Election Commission of Pakistan) has issued a Notification dated 11th September, 2003 announcing Program for holding bye-elections of the Naib-Zila Nazim of District Khairpur, Jacobabad, Dadu and Thatta and in view of such Notification, the respondent No. 7 has published Election Program of the Elections of Naib-Zila Nazim Council, Khairpur on Form-I on 17.9.2003 and on Form "II a notice has been issued inviting Nomination Papers from the candidates, who wishes to contest the Elections of Naib-Zila Nazim in Zila Council, Khairpur.
8. Being aggrieved by such postponement of holding Election under Notification dated 21st September, 2002 and publication of Notification dated ( 11.9.2003 for holding elections in respect of the office of the Naib-Zila Nazim of District Khairpur without first completing the Electoral College of all the vacant seats dated 19.9.2003 issued by the Local Government Support Officer, Khairpur, the petitioners have filed this petition.
9. In support of the petition, the petitioners have annexed photo-copies of certain documents, which, inter a/ia, include a letter dated 19.9.2003 written by Mian Abdul Rasheed Farooqi from the Local Government Support Office, Khairpur to the Joint Chief Provincial Transaction Wing Local Government Department, Government of Sindh. The subject of the letter is number of vacant seats in Zila, Taluka Union Councils of District Khairpur. Alongwith this letter, there are six pages attached, which show the number of vacant seats of different categories in Union Councils of District Khairpur. It also shows the number of seats vacant in each Union Council separately in Taluka Khairpur, in Taluka Kingri, in Taluka Gambat, in Taluka Subhodero, in Taluka Nara, in Taluka Kotidiji, in Taluka Mirwah and in. Taluka Faiz Ganj. The numbers of vacancies have also been shown in respect of Zila Council. The details have been provided based upon set proforma.
10. The other documents relate to the copy of Notification dated 21.9.2002 issued by the Election Commission of Pakistan, which indicates a program of Election in respect of Union Councils mentioned in list at Annexure-A where seats of Nazim, Naib Nazim, are lying vacant due to the resignation. Through this Notification, the time table has been given. Alongwith this Notification, there is also a list of Returning Officers issued by the District and Sessions Judge, Khairpur.
11. There is another Notification dated 11.9.2003, which also talks of the revised program for the bye- Elections in respect of the Naib Zila-Nazim of Districts Khairpur, Jacobabad, Dadu and Thatta. Once again through this Notification a schedule has been mentioned starting from 7.9.2003 to 29.10.2003.
Thereafter another programme informing for the Election of Naib Zila-Nazim has been placed on record as well as a notice inviting nomination papers.
12. This petition has been filed and various actions have been challenged on several grounds. They have assailed the actions on the premise that law pertaining to the Local Government Election Ordinance or Rules 2000 and repealed by Sindh Local Government Ordinance, 27 of 2001 as well as the Constitution of Islamic Republic of Pakistan, have been violated. According to the petitioners, the respondents Government has violated Section' 148(2) of the Sindh Local Government Election Ordinance, 2001. The respondents have, therefore, deprived the petitioners of the fundamental rights to elect their representative to the vacant posts essential for the Electoral College. They have further urged that the impugned Notification for election to the Office of Naib Zila Nazim is illegal as the Electoral College for the purposes of Elections of Naib Zila Nazim has to be completely constituted and if any vacancies are existing in the Electoral College then the Elections of the Naib Zila Nazim, cannot take place. This would be violation of Section 156 of the Sindh Local Government.
Ordinance, 2001, which envisages the. Holding of bye-Elections to the vacancies within the time prescribed. They further urged that by not holding the Elections of the vacant seats and instead of holding Election of the Naib Zila Nazim, a gross violation of law, has taken place. The functionaries, who are preparing for such Election, should be aware of the existence of the law as it stands. They have further urged that the dicta that when a thing is required to be done in a particular manner, it is to be done accordingly holds good. They have further urged that seats of the - Electoral College were vacant much before the Election for Naib Zila Nazirn, has been announced and it is mandatory to complete Electoral process first. The petitioners have claimed that they are aggrieved within the meaning and ambit of Article 199 as they are being deprived of their legal rights to elect their representative at the lowest forum of the Union Council and then move forward to Taluka Council and District Council.
13. The respondehts have filed their parawise comments and have stated that in Section 156 of the Sindh Local Government Ordinance, 2001, which was amended on 27.4.2002 and new sub-section 3(a) was inserted. By the said 3(a), it was stated that the period of one year referred to in sub- section (3) shall be computed from the date of assumption of the Office of the Council, provided in a year in which general Elections are to be held, the bye-Elections may be held within eighteen months.
14. They have also pointed out that by another amendment dated 31st October, 2002, the word 60 days have been substituted in sub-section (4) of Section 156 and the Words within 30 days appearing in sub-section (5) have been substituted with. The words within, as far as practicable, 120 days.
15. They have further stated that steps are being taken for preparation of Electoral Rolls on the basis of joint electorate, for conducting Elections to the Union Council and on finalization of such process bye-Elections to the Union Council shall be held. They have challenged the fact that the petitioners are aggrieved persons. According to them, they have nothing to do with the Elections of Naib Zila Nazim. They have further stated that there is no legal requirement to fill the vacancies of number of Union Councils and Taluka Council before conducting bye-Elections to the Office of Naib Zila Nazim.
16. They have further urged, that in Writ Petition-No. 2968 of 2003 Pervaiz Stephan v. DCQ and others, the Multan Bench of the Lahore High Court has observed that the Punjab Local Government Ordinance did not show any legal requirement of filling vacancies of number of the Union Councils before conducting bye-Election. There was also no provisions in the aforesaid Ordinance that if any seat in the Electoral College was lying vacant, bye-Elections shall not be held. They have also urged that notice has to be issued to the Attorney-- General of Pakistan as a good question on the interpretation of the various Sections of law, is required.
17. The gist of the argument put-forth by the counsel for the petitioners, was that the holding of Elections of the Electoral College, is mandatory and compulsory. Elections of the Naib Zila-Nazim cannot be geld without completion of the Electoral College.
18. On the other hand the sum total arguments of the respondents, was that the petitioners are not aggrieved and therefore the petition is not maintainable. Furthermore according to them, there is nothing on record to show that filling-up all the seats of various Councils constituting the Electoral College, is an essential prerequisite before for holding Elections for the office of Naib Zila Nazim.
19. In order to appreciate, whatever has been stated at the bar and in the pleadings, it would be necessary to refer to certain Sections of the Sindh Local Government Ordinance, 2001.
Section 148 of S.L.G.O., 2001, deals with the elections of members of the various Local Council and the Nazims and Naib Nazims in such Council. The Section reads as follows:- "Section 148. Franchise.-- (1) Members of a Union Council including Union Nazim and Naib Nazim shall be elected through elections based on adult franchise and on the basis of separate electorate.
(2) The Electoral College for the election of Zila Nazim and Naib Zila Nazim and reserved seats of women, peasants and workers, and minorities in the Zila Council shall be all the members of Union Councils in the District, including Union Nazims and Naib Union Nazims.
(3) The electoral college for the election of a Taluka Nazim, Town Nazim, Taluka Naib Nazim, Town Naib Nazim and reserved seats of women, peasants and workers, and minorities in the Taluka Council and Town Council shall be all the members of the Union Councils _ in the Taluka or, as the case may be, town, including Union Nazims and Naib Union Nazims: Provided that for the election for reserved seats for women in Zila Council proportionately divided among Talukas or towns shall be all members of the Union Councils in a Taluka, or, as the case may be, town.
Explanation:- For the purpose of this Section, all members of Union Councils notified as returned candidates in the elections held under this Ordinance shall be deemed to be members of the electoral college".
Section 156 of S.L.G.O., 2001, deals with the bye-election for the vacant seats of the Local Councils and reads as under:- "156. Election to vacant seats.-- (1) If a seat of a member becomes vacant during the term of office of Council, a new member shall be elected through bye-election and the member elected in bye- election shall hold office for the remaining portion of the term of the Council.
(2) If any seat reserved for women remains vacants, the same shall be filed through bye-elections an the elected women member shall hold office for the remaining portion of the term of the Council.
(3) All bye-elections shall be held once a year on a date or dates fixed by the Chief Election Commissioner.
(3-A)The period of one year referred to in subsection (3) shall be computed from the date of assumption of office of the Council: Provided that in the year in which General Elections are to be held the bye-election may be held within eighteen months.
('4) A vacancy of Union Nazim or Naib Nazim shall be filed through bye-election (within as far as)
[ practicable one hundred and twenty days of the occurrence of vacancy as provided in subsection
(1) of Section 148.
(5) A vacancy of Zila Nazim, Naib Zila Nazim, Taluka Nazim or Town Nazim (Naib Taluka Nazim or Naib Town' Nazim) shall be filed through bye-election (within as far as practicable one hundred and twenty days) of the occurrence of vacancy as provided in subsections (2) and (3) of Section 148.
(6) When the office of a Zila Nazim, Taluka Nazim or Town Nazim falls vacant, the members of the concerned Council shall be a majority note elect an officiating Nazim from amongst its members as provided in Sections 48 and 68 respectively, and the person so elected shall continue to retain his office as a member also: Provided that the officiating Nazim shall not be a candidate in the bye-election held for election of the Nazim.
(7) When the office of a Union Nazim, falls vacant, the members of the concerned council shall be a majority vote elect an officiating Union Nazim from amongst its members and the person so elected shall continue to retain his office as a member also: Provided the officiating Nazim shall not be a candidate in the be-election held for election of the Union Nazim."
The counsel for the petitioners has relied upon the following case-law:- "The term "election" as employed in paragraph 1 of Part II.
When the law requires that certain process have to be completed.
The legal process of election. Until this is done the process remain incomplete.
"Mere poll" does not mean "election" and could not be intended to be such by the author of the Order."
(c) Writ-Certioriari-Misconstruction and misinterpretation of relevant provisions of law-- Patent illegality--Certiorari issued Election case--Constitution of Pakistan (1956)."
"The question before the High Court would in the exercise of writ jurisdiction hold that the meeting was whether the result of election was materially announced by any circumstances known to the Election as cognizable is a matter within jurisdiction of an Commissioner land not within writ jurisdiction of the Court."
PLD 1970 S.C. 98) it has been held that:- "An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinising a person's right to be enrolled as a voter or his right to be validly nomination for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto unless expressly barred by some statute, is available precisely for such a purpose...
Thus, as stated in Halsbury's Laws of England, Third Edition, Vol. II p. 148 "even in a case where an election petition is the only remedy when the election is objected to on the ground that the person whose election is questioned was disqualified at the time of elections yet the remedy by injunction in lieu of quo warranto is available where a person becomes disqualified after election or where there is a continuing disqualification in other words where the objection is a continuous holding of the office by the person disqualified...
There is no reason why relief by way of quo warranto should not be available in a case where the ' remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualification is a continuing one which debars a person not only from being elected to an office.
It was further held where constitutionality was challenged Courts were not debarred from enquiring into such question.
(f) Constitution of Pakistan, 1962, Art. 178(4)(a), Expression "public interest"--Government alone best Judge to determine".
PLD 1994 Kara 1), it has been held that:- "(b) Constitution of Pakistan, 1973, Arts. 199 and 225, Constitutional jurisdiction of High Court under Art. 199 whether barred by Art. 225 of the Constitution Article 225 of the Constitution does not bar exercise of Constitutional jurisdiction by the High Court under Art. 199 of the Constitution till actual election takes place; otherwise, by penalty illegal orders passed by any Authority purporting to act under Election laws, a person, otherwise entitled to take part in elections could be deprived of his rights and then required to wait till election was over and then file Election Petition for redress of his grievances against alleged illegal or ma/a fide order passed much earlier to the actual date of election. Once the election process has been started by the announcement of election Schedule, High Court mindful of its .Duty in that respect could legitimately be expected to desist from interfering in the election process, unless it was entirely imperative to do so in the interest of justice, maintenance of purity of elections, supremacy of law and to prevent arbitrariness."
"(c) Pepsu Judicature Ordinance (Smt. 2005) S. 60--Power of H.C. To issue directions-- Const., Ind., Art. 226. Power is given by S. 60 to the H.C. To issue directions or orders in the nature of writs of habeas corpus, etc.; or any of them for the enforcement of rights as are given by any law for the time bring in force. Therefore, as the right of the voters and the candidates for Municipal Elections is a right given by the Municipal Act the H.C. Has the power to grant proper relief to the partners.
Petitioning the H.C. Against an illegal order of the Dy. Comr. Stopping the elections and polling sine die. This power is irrespective of the power given by Art. 226 of the Constitution."
"(a) Constitution of India, Art. 14--Reasonable classification for purposes of legislation.
It is now well-established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that differentia must have a rational relation to the object sought to be achieved by the Statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established that Art. 14 condemns discrimination not only by a substantive law but also by a law of procedure (1955) 1 SCR 1945, Reiterated, Per Bose, J.-- Despite the constant endeavour of Judges to deline the limits of the law contained in Art. 14. I am unable to deduce any clear cut principle from the oft-repeated formula of classification. Article 14 sets out an attitude of mind, a way of life, rather than a precise rule of law. It embodies a gener'al awareness in the consciousness of the people at large of something that exists and which is very real but which cannot be pinned down to any precise analysis of fact save to say in a given case that it falls this side of the line or that, and because of that decisions on the same point will vary as conditions vary, one conclusion in one part of the country and another somewhere else; one decision today and another tomorrow when the basis of society has altered and the structure of current social thinking is different. It is not the law that alters but the changing conditions of the times and Art. 14 narrows down to a question of fact which must be determined by the highest Judges in the land as each case arises.
One can conceive of classifications that conform to rules and yet which are bad; classifications made in the utmost good faith; classification that are scientific and rational, that will have direct and reasonable relation to the object sought to be achieved and yet which are bad because despite all that the object itself cannot be allowed on the ground that if offends Art. 14. In such a case, the object itself must be struck down and not the mere classification which, after all, is only a means of attaining the end desired."
"Election set aside on writ petition-Election ordered--Ineligible members allowed to vote after complying with (new) directions of High Court."
21. The very concept of the Local Government, 'system envisages participation of the local populous in the. Local Government and it is with the same spirit that the present system of Local Government has been evolved, as codified by the Sindh Local Government Ordinance, 2001. Section 148 of SLGO, 2001, provides for the election of the ,members of the Union Council including Union Nazim and'
Naib Union Nazims, based on adult franchise and through separate electorate. Whereas sub- section (2) of said section, requires that the Zila Nazim and Naib Zila Nazim and the Council Members for the reserved seats of women, peasant, workers and minorities in the Zila Council, be elected through a electoral College, constituted of all the , members of the Union Councils in the District, including Union Nazims and Naib Union Nazims. Similarly, in term of sub-section (3) thereof the electoral College for the elections of Taluka Nazim, Town Nazim, Taluka Naib Nazim, Town Naib Nazim and reserved seats of women, peasant, workers and minorities in the Taluka Council and Town Councils are required to be elected through a electoral College constituted of all the members of the Union Council in the Taluka 'or, as the case may be, town including, Union Nazim and Naib Union Nazim. Section 156 of SLGO, 2001, as it stands today, requires that in the event, a seat of a member in a Council fall vacant during the terms of that. Council, the same shall be filed, through bye-election. Sub-section (3) of Section 156 requires that such bye-election shall be held once a year on a date or a dates, fixed by the Chief Election Commissioner. Whereas in terms of subsection 3(a) of the said section, the period of one year has to be computed from the date of assumption of the offence of the Council. It is however, provided that in the year in which general elections are to be held, bye-elections may be held within 18 months. The plain reading of Section 156, SLGO, 2001 shows, that election to a vacant seats of a member of a Council is to be filed-up through bye-election, essentially within a period of one year. However, such period of one year may be extended to 18 months, in the event only, where general elections are to be held during the relevant year. Thus the election for vacant seats of a Council can, at best, be delayed for a period upto 18 months and that too upon a contingency, otherwise a vacant seat is to be filed-up through bye-election within a period of one year from the date it falls vacant. Although in terms of sub sections (4) and (5) of Section 156, vacant seats of Union Nazim, Zila Nazim, Taluka Nazim, Town Nazim and Naib Town Nazim of such Council are to be filed-up through bye-election within 120 days from the date any of these offices fall vacant, however, the insertion of the words "as far as practicable" in the above sub-sections, clearly shows that the adherence to such time frame; for bye= elections of the post of Nazim and Naib Nazim, is not mandatory and same has to be implemented, so far it a practicable. Whereas in contrast to that, adherence to the time frame for the bye-election for the seat of the members of the Local Councils, is mandatory. It is an admitted fact that, presently, as many as 104 seats are lying vacant in the various Councils in Khairpur District, since last about more than two years and the process of bye-election for such seats has not even been initiated so far. The only explanation submitted by the respondents for such idolence is, that steps are being taken for the preparation of electoral rolls on separate electorate basis, for conducting elections, for Union Councils and that upon finalization of the process, bye- elections for the seats of Union Council shall, be held as soon as possible. The above does not justify delaying of election for the seats of the Union Council in violation of the mandate of Section 156 of SLGO more so far the reason that SLGO, 2001, provides for elections for the seats of the members of Local Council on the basis of separate electorate and not on the basis of joint electorate.
22. Mr. Awan, learned counsel for the petitioner, has in support of his contention, relied upon the definition of "Electoral College" as mentioned in Black's Law Dictionary. Electoral College has been defined in the 'said dictionary, as the College or Body of the electors of a State chosen to elect the President and Vice President also, whole body of such electors composed of all the electoral Colleges of several stage. Although the above definition is with reference to the U.S. Constitution.
However, such definition is universal. If a electoral College is constituted of the members of a certain body, it is the whole body, that constitute the such College. The electoral College for elections of the Naib Zila Nazim, in terms of sub-section (2) of Section 148, SLGO, is constituted of all the members of the various Union Councils in a District, including Union Nazim and Nabi Union Nazim. A short fall of 104 members from the electoral College, is substantial and in the event elections to the office of Naib Zila Nazim are held without filling such seats, through bye-elections as required by law, would prevent such voters of the constituency in the District, who, at present, are unrepresented, owing to above vacancies, who shall be deprived of their right to choose a Naib Zila Nazim through their duly elected members, who in turn would have been entitled to vote for the office of Naib Zila Nazim and even to contest election for such office. Thus holding of election without first filling-up the 104 seats of the electoral College, as required by law, would result in disenfranchisement of a large population/voters of the District Khairpur and would negate the very concept of local governance. As regards the objections to the maintainability of the present petition. It may be noted that the petitioners, admittedly, are the registered voters from the District Khairpur and their fundamental right to elect their chosen representatives to an important office of their Local Government is being affected through the proposed elections. The petitioners are therefore justly concerned with and have every right to challenge the same. The un-reported judgments of the Lahore High Court, Multan Bench, relied upon by the respondents, is not applicable to the present case, as through the said judgment a Single Judge of the Lahore High Court has dismissed the petition for its having become infructuous.
23. In view of the foregoing we hold that the impugned Notification for the election to the office of Naib Zila Nazim in the circumstances is illegal. We direct the respondents to withdraw the same and immediately commence the process of election in respect of the seats presently lying vacant in the various Councils of the District Khairpur and thereafter proceed to hold the elections for the office of Naib Zila Nazim, District Khairpur and only after the returned candidates in the bye- election for the said Council have been duly notified.
The petition stands disposed of in foregoing reasons. .