SABIHUDDIN AHMED, C.J.--- The subject-matter in both these petitions appears to be the same i.e. raising the number of Union Councils in District Ghotki from 21 to 28 and consequential re- demarcation and bifurcation of existing Union Council which according to the petitioner is mala fide and has been made in violation of the requirements of the Sindh Local Government Ordinance.
2. The facts as stated in C.P. No.876 of 2005 (Sukkur C.P. No.39 of 2005) are that a meeting of the Zila Council Ghotki was scheduled to be held on 22-2-2005 and no proposal for passing of a resolution to propose increase of the number of Union Councils was listed on the Agenda. The petitioner who belongs to opposition group in the Council had decided not to participate in the meeting and taking full advantage of their absence passed resolution proposing creation of 3 new Union Councils to raise the number of Council from 21 to 28. It is alleged that new Councils were proposed to be created only in 3 Talukas namely, Ghotki, Khangarh and Mirpur Mathelo, but no addition was proposed in the remaining two Talukas namely Daharki and Ubauro. It is contended that this was done with a mala fide purpose inasmuch as the opposite group had a strong voting bank in the aforesaid two Talukas, whereas the ruling group wished to acquire advantage in the election of the Zila Nazim where the electoral college consist of Nazim and Naib Nazim of Union Council. It was prayed that the resolution be declared unlawful and the District Government be restrained from acting upon it.
3. Number of Nazims of Union Councils of Taluka Council in the District applied for being joined as parties to the petition which was granted by an elaborate order, dated 25-5-2005 consequently respondents Nos.4 to 20 were also arrayed as parties to the petition. On 11-5-2005 the Court passed an ad interim order directing that status quo be maintained.
4. By a notification dated 29-4-2005 the Provincial Government had invited objections to the proposal for alteration and delimitation of the areas in the Union Council of District Ghotki submitted by the Zila Council and apparently no objections were received. Consequently a notification dated 7th May, 2005 was issued, which has been called in question, in C.P. No.877 of 2005 (Sukkur C.P. No.135 of 2005). The operative part of the notification reads as follows:-- "Government of Sindh Local-Government, Katchi Abadi and Spatial Development Department Notification Karachi the 7th May, 2005 No.PA/AS(LG)2004/901.--- Whereas it is expedient to delimit/alter the local areas of Union Councils in District Ghotki for the purpose of the Sindh Local Government Ordinance, 2001.
2. And whereas the Resolution No.2 passed by Zila Council, Ghotki in its meeting held on 22-2-2005 and recommendations of Zila Nazim Ghotki vide letter No.PSLG/282 dated 2-3-2005 and District Coordination Officer, Ghotki vide letter No.O-06(PS/ 477 of 2005 dated 14-4-2005 and letter No.LGS0/104 dated 12-4-2004 of Local Government Support Officer, Ghotki and Resolution passed by the relevant Union Councils after inviting objections and suggestions through press as per section 11 of the Sindh Local Government Ordinance, 2001.
3. And whereas, as required under section 11(1) of SLGO 2001, and objections called by the Government through Local Government Department vide subsection (2) of section 11 of SLGO 2001, through publication in official gazette in order to change the boundaries of Union Councils. And whereas no objections were received.
4. And whereas, in pursuance of resolution passed by 2/3 majority of the total membership of each of the relevant Union Councils, the following new Union Councils have been created as provided under section 11 of SLGO, 2001:-- Taluka Ghotki
1. UC Muhammad Khan Ghoto.
2. UC Ghotki-3.
3. UC Bund
4. UC Ali Bagh
5. UC Slahe Mahar Taluka Khan Garh
1. UC Bahtoor Sharif Taluka Mirpur Mathelo
1. UC Hayat Pitafi The respective boundaries of UCs shall be as per schedule appended hereto:-- And whereas these changes shall come into force on the announcement of coming Local Government Elections.
6. Now Therefore, in exercise of powers conferred under section 11 of SLGO, 2001, the Government of Sindh are pleased to delimit, create/alter the local areas of Union Councils of Talukas Ghotki, Khangarh and Mirpur Mathelo of District Ghotki, as per schedule appended hereto."
5. Getting the impression that the resolution has been passed by the concerned Union Council prior to 12-4-2004 (from the letter of the Local Government Support Officer mentioned in the above notification). We asked Mr. Munshi to clarify why such resolutions were not transmitted in terms of section 11(1) for more than a year and why the resolution was awaited when it was not so required, learned counsel pointed out that the date 12-4-2004 was a typographical error and the letter was in fact addressed on 12-4-2005, Indeed in the elaborate statement filed by learned counsel on 14- 7-2005 all relevant documents have been produced which show that the letter was written on 14- 4-2005 and relevant resolutions were passed by different Union Council between January and April, 2005.
6. Before adverting to the contentions of the learned counsel for the petitioners it may be appropriate to deal with certain preliminary objections to the maintainability of the petition raised by learned Advocate-General and Mr. Aziz A. Munshi. It was contended that two opportunities were available to the petitioners to object to the proposal for alterations of Union Council limits i.e. at the level of the councils inviting public objections and under section 11(1) and prior to the final notification of the Government dated 7-5-2005 issued after previous publication under section 11(2). It was urged that the petitioners having failed to avail alternate remedies under the law could not approach this Court in its Constitutional jurisdiction. Indeed copies of press clipping indicating publication of notices by some Union Councils have been placed on record. It appears that a notice inviting objections to proposals on the part of the Sindh Government was only published in the official gazette dated 29-4-2005. Learned counsel may be correct to the extent that at times Courts have declined to exercise Constitutional jurisdiction when an alternate equally and efficacious remedy has not been availed of. Nevertheless it is equally true that this is not an inflexible rule and such jurisdiction has been exercised when the impugned order is without jurisdiction and the alternate remedy is not efficacious. At the same time we are clearly of the view that in the absence of personal notice an aggrieved person cannot be non-suited merely because of failure to read a particular newspaper or the official gazette.
7. Mr. Munshi also questioned the locus standi of the petitioners contending that they could not claim to be aggrieved by the impugned Resolution or the Notification. The petitioners in C.P. No.D- 876 of 2005 appear to be members of the Zila Council, whereas those in C.P. No.877 of 2005 are members of Taluka Councils, Mirpur Mathelo, which offices they hold by virtue of being Naib Nazims of respective Union Councils in the Taluka. We are of the view that whenever it is alleged that Union Councils are created to give greater representation to residents of a particular area within a District and thereby reduced the representative capacity of residents of other areas in violation of law every resident has locus standi to question the dispensation. It is important to keep in view that the electoral college for Nazim and Naib Nazim of the District consists of members of a Union Council and an increase in some areas would affect the voting strength of those residing in others.
As such this objection is also untenable.
8. Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioner argued that the limits of a Union Council can only be changed in terms of the provisions of section 6 and section 11 of the Sindh Local Government Ordinance. Indeed section 6 appears to confer a unilateral power upon the Government which is however, exercisable under certain parameter i.e. as for as may be:-- (a)
(b) the boundaries of a Union shall not cross the limits of a Taluka....
(c) the areas of Union in a Taluka shall comprise a whole number of Tapedar's circle or Tapedari circle may contain a number of Union.
(d)
(e) the population of a Union within the District shall more or less be uniform.
9. Indeed under the second proviso to the aforesaid section the Government can for reasons to be recorded waive the aforesaid condition.
10. Mr. Pirzada argued that the requirements of clauses (b) and (c) of the first proviso to section 6 had been violated inasmuch as under the schedule to the Notification dated 7-5-2005 two Dehs from Khangarh Taluka were included in Union Courcil Adilpur in contravention of clause (b) of the first proviso. Similarly he pointed out that two Dehs (Revenue Estates) from Mathelo Tapedari Circles had been added in the Adilpur Union Council. At the same time no reason had been recorded for not following the requirements of the first proviso in terms of second proviso to section 6.
11. However, none of the learned counsel representing the respondents attempted to defend the impugned Notification, dated 7-5-2005 to have been issued under section 6 of the Sindh Local Government Ordinance. On the contrary both the Advocate-General and Mr. Aziz A. Munshi who addressed the Court elaborately on behalf of the respondents argued that the same has been issued in exercise of powers available under section 11 of the Ordinance. It might be pertinent to reproduce the terms thereof:-- "11. Alteration of local areas.--- (1) Any two or more adjoining Unions within a Taluka or adjoining Talukas with a District may, after having invited public objections through 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 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 Government Elections."
12. It may be noticed that proposal for alternation of territorial limits has to be made by Union Councils or Taluka Council, as the case may be. Indeed a Zila Council has no say in the matter and as such the resolution of the Ghotki Zila Council dated 22-2-2005 was entirely irrelevant for the aforesaid purpose. Indeed this position could not be disputed by learned counsel for the respondents and as such there could hardly be any live controversy in C.P. No.876 of 2005. Indeed the question of validity of the notification dated 7-5-2005 raised in C.P. No.D-877 of 2005 requires serious consideration.
13. Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioner urged that:--
(i) no resolution by 2/3rd majority were passed by the Union Council prior to the passage of the resolution by the Zila Council dated 22-2-2005;
(ii) That section 11 only permits proposals for alteration of existing limits of a Union Council and proposals for creation of new Union Council is not permissible under the aforementioned provision;
(iii) That a resolution making the proposal could only be passed during the third year of a Union Council and the existing Union Council commenced their respective terms in August, 2001. therefore, no resolution could be passed after September, 2004.
14. It may be seen that section 11 requires that a Union Council to act on two occasions before a proposal is made to the Government. In the first place when a change is proposed public objections are invited. After considering such objections a resolution by 2/3rd majority is passed and transmitted to the Government. Learned counsel for the District Government along with his statement dated 14-7-2005 placed a large number of documents on record which indicate that the initial resolution inviting public objections to proposals of change of territorial limits were passed by 14 Union Councils prior the Zila Council Resolution dated 22-2-2005. Surprisingly however, finally resolutions proposing the changes were passed by each of these councils only after 22-2-2005. Along with these documents learned counsel had placed on record copies of letter from the Additional Secretary Government of Sindh, Local Government Department referring to the letter from Zila Nazim, Ghotki and advising the Nazim of Union Council to get their proposal for bifurcation of Union Council published in the press and invite objections of proposed delimitation of Union Council and a letter from Local Government Support Officer/compliance with the letter from Additional Secretary. It is surprising that Provincial Government decided to act without any resolution proposing the changes having been finally passed by the concerned Union Council. Therefore, Mr. Pirzada's contention to the effect that proposals for changing territorial limit of Union Council did not emanate from the Councils themselves, but were undertaken at the behest of the Zila Council/Union Council does not appear to be altogether without force. Even in the impugned Notification the name of the newly-formed Union Council have been mentioned, but those on whose behest the action has been taken has not been enumerated and only the word 'relevant Union Council' has been used. Nevertheless since documents on record indicate that the process had commenced prior to the Zila Council Resolution. We would refrain from recording a conclusive finding on this aspect of the matter.
15. Secondly, Mr. Pirzada argued that section 11 only permits alteration in the existing territorial limits of Union Council and does not contemplate creation of the new Union Councils. Learned counsel referred to the expression "alter" as defined in Black's Law Dictionary Sixth Edition in the following words:-- "Alter. To make a change in; to modify; to vary in some degree; to change some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected. To change partially. To change in one or more respects, but without destruction of existence or identity of the thing changed; to increase or diminish."
16. Learned Advocate-General on the other hand argued that the word "alteration" implied change in any member to any extent. We were not satisfied by the reply keeping in view the context of the statutory provision because that would imply that two or possibly even one Union Council could make proposal for increase representative of its residence to an unlimited extent without taking into consideration the size of other Council within the District of the Province. Mr. Munshi however, pointed out that a check of such a proposal was available in the section itself which requires that a proposal would be subject to the condition that the size of population in the proposed Union Council show as far as possible by close to the average population of a Union within a District.
Indeed the explanation is plausible. Nevertheless the requirement appears to be that the size of population in the proposed Union should be close to the average population of existing Union within a District. According to the Zila Council Resolution there were 35 Union Councils in the District with a total population of 968,964 and the average population of a Union would be worked out to 27,677 through a 25% increase in the number of Union Councils in three Talukas. It would be virtually impossible to abide by the aforesaid requirement. From the schedule of existing and proposed Union Council appended to the notification dated 29-4-2005 it is evident that the population of the exiting Union Council in Taluka Ghotki varied from 27,722 to 33,367. However, upon acceptance of the proposal 8 Councils with a population of less than 17,000 were established. On the other hand the population in the remaining two Talukas Dahari and Ubauro works out to 4,08,447 with an average of 29,175 per Union Council. We are, therefore, constrained to hold that the aforesaid requirement was not met and the Provincial Government was not required to consider the proposals initiated by the Union Councils.
17. Finally Mr. Pirzada contended that under section 11 a proposal could be initiated by Union Council only during the third year of its term. Admittedly the existing Local Councils were elected in August, 2001. Initially for a period of three years terms under section 159 of the Ordinance, but the said terms was extended to a period of four years through an amendment brought about in 2002.
Learned counsel argued that the limitations on the powers of a Union Council have been imposed with the object of ensuring that no proposal are made during the election year for political motives.
18. Mr. Pirzada urged that the three years period expired in August, 2004 and thereafter no recommendation for alteration of local areas could be made. Mr. Aziz A. Munshi attempted to respond to this contention by referring to section 159(2) of the Ordinance, which stipulates that a Local Government may notwithstanding the expiry of its term's condition to hold office until its successor assume office. With profound respects to the learning and experience of learned counsel we find this contention to be entirely untenable. Indeed to prevent a vacuum in the event of inability on the part of the Government to hold elections the law does authorize a Local Government to remain in office for a period beyond its normal term. Nevertheless such Government cannot presume that it will continue in office despite expiry of its term and surpass statutory limitation of its powers. Moreover in the facts of the present case elections are being held at the required time and there could be no legal or factual basis for the Union Councils to assume that they would continue to remain in office beyond theirs respective terms. Learned counsel then attempted to refer to the pronouncements of the Honourable Supreme Court in Federation of Pakistan v. Haji Saifullah Khan PLD 1989 SC 166, wherein their Lordships despite finding that dissolution of the National Assembly was illegal, declined to restore it on the ground that it had been elected on a non-parties basis which had been found to be unconstitutional and the whole. nation was geared up for holding fresh election according to Constitution. We are unable to see how this case could of any help to learned counsel. Indeed a Court may decline to accord relief, which would result in perpetuation of unconstitutionality or illegality and opted for a lawful course to be followed in future. In instant case, however, when it is alleged that the impugned action would perpetuate an illegality in future, the Court would be required to accord appropriate relief.
19. Mr. Anwar Mansoor Khan, learned Advocate-General however tried to meet Mr. Pirzada's contention by pointing out that the Legislature never apprehended that the power to recommend alteration would be misused for political ends by pointing out that under the originally promulgated Ordinance the required resolution under section 11 could be moved during the third year of a Council's terms of office despite the fact that the aforesaid term was confined to three years only under section 159. Nevertheless unfortunately when the term was extended to four years in section 159 a consequential amendment in section 11 was not made. He, therefore, invited us to apply the rule of casus omissus and read fourth year in place of third in section 11. The argument indeed is ingenious, but we regret our inability to accept it. It is well-recognized that a statute has to be interpreted according to its plain ordinary meaning and a Court cannot assume the functions of a Legislature by filing an omission unless the provisions are incapable of being understood according to their plain meaning or blatantly violate legislative intent indeed learned Advocate-General may be right in contending that the apprehension referred to Mr. Pirzada did not exist at the time of the promulgation of the Ordinance, but it is equally plausible that such apprehension did arise subsequently and therefore, omission to amend section 11 was a conscious act on the part of Legislature. Be that as it may, it is not possible for a Court to guess legislative intent in the present of clear words. For the foregoing reasons we have no option but to hold that the resolution initiated by the Union Councils were ultra vires their powers and the consequent Notification issued by the Provincial Government was without lawful authority and of no legal effect.
20. Above are our reasons for the following short order announced on 17-8-2005 which reads as follows:- "For reasons being recorded separately we would hold that the Resolution questioned in C.P. No.D- 876 of 2005 has no bearing upon the subject-matter of the dispute and no further order is required to be passed. With respect to C.P. No.D-877 of 2005, it is declared that the Resolution passed by respective Union Councils and the consequential impugned Notifications of the Provincial Government are without lawful authority and of no legal effect. As such they cannot be acted upon and the respondent No.1 is directed to hold elections either on the basis of the pre-existing Union Councils or establish. Union Councils in accordance with law. The petition stands allowed in the above terms."