Sardar Muhammad Ram Khan, J.-- Government of Sindh, through Local Government department, seek leave to appeal against the judgment dated 10.5.2005 of a learned Division Bench of Sindh High Court at Karachi whereby, on acceptance of petition under Article 199 of the Constitution filed by the respondents, four separate notifications dated 22.12.2004 issued by the Sindh Government were declared void, unlawful and without jurisdiction and removal of the respondents from the status of Nazims and Naib Nazims of their respective Districts was annulled.
2. Government of Sindh, in exercise of powers conferred by Section 6 of Sindh Land Revenue Act, 1967, through four separate notifications dated 13.12.2004 carved out four new Districts namely Kamber, Umerkot, Jamshoro and Kashmore from the existing Districts of Larkana, Mirpur Khas, Dadu and Jacobabad respectively. Subsequently, four separate notifications on 22.12.2004 were also issued by the Government of Sindh in exercise of the powers conferred by the sub-section (2) of Section 186 of Sindh Local Government Ordinance 2001, whereby the Nazims and Naib Nazims of the existing Districts were removed in consequence to the creation of new Districts. This led to the filing of writ petition eventually decided in favour of the respondents.
3. Learned Advocate General Sindh assailed the impugned judgment of Sindh High Court on the ground that the creation of four new Districts was perfectly within the power of the Government under Section 6 of Sindh Land Revenue Act, 1967 and once the new Districts came into existence, the elected Nazims and Naib Nazims of the old Districts had to quit as a logical consequence. He made reference to Sections 2(x), 5, 7, 10 and 11 of the Sindh Local Government Ordinance 2001 with regard to the powers of the Government concerning the impugned action.
4. Section 2(x) is not directly relevant because it only defines a District to be one notified under Sindh Land Revenue Act 1967. Section 5 of the Sindh Local Government Ordinance 2001 describes certain local areas composed for the purpose of the aforesaid ordinance as union, Taluka, Town, District and City District. This also is not very relevant because the aforesaid composition is available in the old Districts as well as in the newly created Districts, The. Talukas and Sub-Divisions of newly created Districts have already been given in the notifications issued 'under Section 6 'of the Land Revenue Act. Government of Sindh, for the purposes of Sindh Local Government Ordinance 2001 can also issue notifications describing such compositions and further delimitation of Talukas and Districts as provided by. Section 7 of the Ordinance.
5. Section 10 of the ordinance only provides that unless varied under Sindh Local Government Ordinance 2001, any local area declared or notified under Sindh Local Government Election Ordinance 2000 shall be deemed .to have been notified a such under Ordinance 2001 Section 11 of Ordinance 2001 is placed reliance upon by the learned Advocate General Sindh, most probably under the impression that it might tend to confer power upon the Government to remove the elected representatives of the people, on the basis of alterations of the local areas. For facility of reference Section 11 is reproduced below: "11. Alteration of local areas.- (1) Any two or more adjoining Unions within a Taluka or adjoining Talukas within a district may, after having invited public objections though a resolution, during the third year of their being in office, passed by two-third majority of the total membership of each of the relevant Union Councils, or as the case may be, Taluka Councils, make a proposal to the Government for a change in their respective boundaries subject to the conditions that no revenue estate shall be divided and the size of population in the Unions shall, as far as possible, be close to the average Unions shall, as far as possible, be close to the average population of Unions within a district.
(2) The Government may, subject to previous publication, notify the change in the boundaries of the Unions, Talukas or towns: Provided that such change shall come into force on the announcement of next local governments elections."
6. The section lays down the procedure where alteration of local areas of adjoining Unions and adjoining Talukas is required. It is unambiguously provided that 'he members of the Union Councils or Taluka Councils, as the case may be. would invite public objections through a resolution passed by two-third majority of the total membership making a proposal to the Government for the desired change in their respective boundaries and the Government may notify such change. The important requirements of the scenario are that the adjoining councils would pass a resolution only by two-third majority and invite objections from the public concerned. Unless the objections are invited, heard and settled, the councils cannot make any proposal to the Government for the desired alteration. All this exercise is restricted to be done during the 3rd year of the members being in office. Further restriction is that no boundaries of the respective councils would be changed where the revenue estate happens to be divided and the size of population is reduced from the average population of unions within a District. The substantial restriction is given in the proviso that no such change shall come into force before the announcement of next Local Governments Elections.
7. The perusal of above-section and the detailed description thereof would clearly suggest that it has got nothing to do with the removal of the elected representatives. Rather, in order to safeguard the said eventuality, it is clearly provided that no such change shall be effective till the announcement of next Local Governments Elections. The section is also not attracted because it deals with the alteration of boundaries in the Union Councils and Taluka Councils and not the limits of the District. If analogy at all is taken from .Section 11 of the Ordinance 2001 which otherwise does not appear plausible or possible so far as creation of the District is concerned yet the procedure laid down therein has never been followed nor could it be followed strictly thereunder because it pertained to Union Councils and Taluka Councils. Even if analogy is drawn from Section 11 of Ordinance 2001, no change could have taken place even for the purposes of such. Ordinance till the announcement of next Local Government Elections. After hearing the learned Advocate General, we have felt that he had no substantial support of law to justify the dislodging of the elected representatives of the people.
8. We posed a question to the learned Advocate General that, for the last 30 to 35 years numerous newly created Districts happened to be carved out from the existing Districts in all the four Provinces of the country but was he in a position to give a single example where, by creation of a new District, the elected representatives of the existing Districts were ever removed from the office?
The learned Advocate General could not cite a single instance of the nature except referring to a Division Bench judgment of Dacca High Court in Aftab Hossain's case (PLD 1970 Dacca 798). In the aforesaid ruling, it was a case of reconstitution of Union Councils and above all it is a Division Bench judgment of a High Court, whereas, the impugned one before us, being latest, also is a Division Bench judgment of High Court which has given plausible and sound reasons for holding otherwise.
9. The Learned counsel for the respondents vehemently challenged the removal of Nazims and Naib Nazims of the Districts through notifications dated 22.12.2004. First among the objections was that by creation of new Districts, the old Districts never ceased to exist and hence the representatives of the people of such Districts could never be dislodged and could never cease to hold office. That if a non-elected person and a public servant like District Co-ordination Officer can be brought in to administrator two Districts, why the elected representatives cannot hold the same office with mandate of the people. That there was no emergency in resorting to the removal of the elected representatives till the holding of fresh Local Bodies Elections which were not far away. That by creation of a District under the Land Revenue Act, the elected representatives never happen to loose their status under the law and that the impugned action has been taken only on a remote assumption that the they are to cease to hold office by creation of new Districts though the consequences of such creation are never visualized by law. Lastly, it was vehemently contended that Section 186(2) of Ordinance 2001 is not at all applicable to the prevailing situation.
10.For facility of reference we would reproduce Section 186 of Ordinance 2001 that runs as follows:- "186. Electoral Transition.--(1) Notwithstanding anything contained herein before, the first Zila Councils, Taluka Councils, Town Councils and Union Councils constituted under this Ordinance shall be deemed to be validly constituted if sixty percent seats thereof are filled in the elections held under the Sindh Local Government Elections Ordinance, 2000 (X of 2000).
(1-A) Where local council has been validly constituted under subsection (1), but seats of Nazim and Naib Nazim of the corresponding level have not been filled, the concerned council shall elect officiating Nazim and Naib Nazim from amongst its members until their seats are filled through by election.
(2) In any local area in which this Ordinance is in force but a relevant Local Government is not validly constituted due to a natural calamity or conditions beyond human control, the Government, may empower any person or persons to perform all or any of the functions of the Local Government under this Ordinance till the elected Government assumes the charge of the office."
11.The Government of Sindh, for the impugned action, seems to have derived power from sub- section (2) of Section 186 of Ordinance, 2001. It provides beyond ambiguity that the Government can empower any person to perform all or any of the functions of the Local Government under the Ordinance till the elected Government assumes the charge of the office only when the relevant Local Government is not (i) validly constituted due to (ii) a natural calamity or (iii) conditions beyond human control. The circumstances are apparently distinguishable because firstly, it was not a case of non-existence of a validly constituted Local Government and secondly, there was no emergency due to either a natural calamity or conditions beyond human control. If the Government was in real hurry in having elected representatives of newly created districts, it could follow, in principle, the course provided by sub-section (1-A) of Section 186 of Ordinance, 2001, though not applicable directly.
12.The new districts were constituted vide notification dated 113.12.2004 while the Nazims and District Nazims were dislodged through notification dated 22.12.2004. It seems that the first job that the Government did do after the creation of districts was the removal of elected representatives despite the fact that it involved no emergency at all. Numerous important administrative, financial and developmental decisions were likely to be taken in the event of creation of new districts but keeping all such important actions aside, the only action considered important was the removal of Nazims and Naib Nazims. If the foremost purpose of creation of new districts was to remove the Nazims and Naib Nazims, we are afraid, it smacks of some mala fides as well.
13.The Nazims and Naib Nazims are elected under the provisions of Sindh Local Government Ordinance, 2001. The procedure for their removal is also provided in the same ordinance under Sections 23 and 24. Only two procedures are available, known as external recall and internal recall.
Under external recall a District Nazim can be removed by the Chief Executive of a Province who shall move a motion in the Provincial Assembly stating grounds for the recall. Such grounds are already mentioned to the effect, firstly, that the continuing in office of a Zila Nazim is against the public policy; secondly, it is against the interest of the people and thirdly, he is guilty of misconduct. Such motion s to be approved through a resolution passed by a simple majority in the Provincial Assembly. The second procedure is of internal recall described under Section 24 of the Ordinance to the effect that if the conditions given therein are fulfilled, any member of District Council seconded by another member may give notice to move a motion through the Naib Zila Nazim for recall of Zila Nazim. In other words, it is no-confidence motion the detailed procedure whereof is provided in the section itself. There is no other way of removing an elected representative.
14.From the arguments of learned counsel on either side, the available record and close perusal of the elaborate judgment of the learned High Court, we have no two opinions to hold that by creation of new Districts the elected representatives of the original Districts cannot be 'said to have ceased to hold office. That if a District Co-ordination Officer can look after the affairs of two Districts, why not the elected representatives, so long as the new elections are held in due course.
That under the law the removal of elected representatives on creation of a new District, is a mere presumption not supported either by the Land Revenue Act or by Ordinance, 2001. That the provisions of Section 186(2) of Ordinance, 2001 have been misconstrued and misinterpreted in deriving power for removal of District Nazims and Naib Nazims.
15.In the circumstances, no plausible grounds could be agitated before us to disagree with the elaborate findings of the learned High Court. There being no force in the petition, it is hereby dismissed and leave to appeal refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.