' SHAH KHAWAR, J.--- Through this writ petition, the petitioner has called in question the inclusion of 39 census blocks of Union Council No.81 Kotha Kalan Rawalpindi made by respondent No.1, Joint Census Commissioner, Statistics Division, Pakistan Bureau of Statistics, Population Census Organization Wing, Islamabad. It has been prayed that the authorities be directed to allow Union Council No.81 Kotha Kalan Rawalpindi to remain within 18 blocks as part of said union council as well as part of N.A. 52 and PP-6. Further that in the forthcoming Elections of local bodies, the voters belong to 39 blocks may be restrained from casting their votes in Union council No. 81 Kotha Kalan Rawalpindi.
2. Brief facts given rise to the writ petition are that the area of Kotha Kalan falls within three different zones i.e. a part falls within limits of Cantonment Board Rawalpindi, second within urban area of Rawalpindi outside the cantonment board while third falls within Islamabad Capital Territory. Vide Notification No.41/81-AFT dated 6-1-1981 in exercise of powers conferred upon him by the President in pursuance of Article 2, Islamabad Capital Territory (Administration) year, 1980 (P.O. No. 18 of 1980). The Administrator Islamabad Capital Territory constituted certain revenue estates in Islamabad District including therein certain lchasra numbers of revenue estate of Kotha Kalan Rawalpindi. By this way of the matter, the demarcation was made on the analogy that the eastern part of Nallah Korang shall fall into territory of Islamabad whereas the western side of Nalla Korang was declared as part of .Punjab falling within District Rawalpindi.. This arrangement remained in vogue till year 2012. The voter members falling in the eastern side of Nallah Korang were included in the electoral roll of NA.49 (Islamabad) and the western side remained as part of NA.52 (Rawalpindi) and PP-6 for the Provincial Assembly Punjab. The union council Kotha Kalan after the above said arrangement was comprising of 18 census blocks but the respondent No.1 included 39 census blocks from Islamabad Capital Territory and were included in union council No. 81 Kotha Kalan Rawalpindi.
3. It is contended on behalf of petitioner that before the general elections of 2013, the above said arrangement was holding field but due to political rivalry between two political parties, to generate favourable-results in favour of the party ruling the federation made this erroneous inclusion of 39 census blocks in NA.52, PP-6 and Union Council No. 81 Kotha Kalan, Rawalpindi. In support of his contentions, certain correspondences have been annexed indicating that the District.
Administration, Rawalpindi has been writing to the respondent No.1 to remove this anomaly and joint meeting comprising of respondent No.1, the Joint Census Commissioner, Revenue department Islamabad and Revenue department Rawalpindi was held on 25-9-2012 in which this issue was discussed and settled but could not be implemented.
4. Report and parawise comments were sought from the respondents. The respondents Nos.3 and 4, DCO Rawalpindi and Additional District Collector Rawalpindi jointly submitted report and parawise comments and same was also done by respondents Nos.5 and 7. (ADC R/District Collector Islamabad and Administrator/Chief Conunissioner, Islamabad).
5. In report filed by respondents Nos.3 and 4, it is clearly mentioned that till 2012 according to site plan issued by Census organization in April 2011, only 18 blocks of Kotha Kalan were included in territorial jurisdiction of Rawalpindi while rest of this mauza was depicted as part of District Islamabad. In the said site plan, Korang Nalla leading to river Soan, was marked as boundary between Rawalpindi and Islamabad. The house listing operation of 2011 was completed according to said site plan issued by respondent No. 1 . It is, also mentioned that subsequently the census organization Islamabad issued new site plan for mauza Kotha Kalan Rawalpindi in which 39 census blocks were marked in the area across Korang Nalla which were earlier depicted as part of Islamabad. It was reported that in the new site plan new 39 census blocks have been wrongly included in Rawalpindi District and District Administration Rawalpindi was never consulted prior to preparation of new site plan. The report further reveals that to discuss this issue, a meeting dated 29-9-2012 took place which was attended by the District Administration Islamabad, District Administration Rawalpindi and representative of Joint Census Commissioner, Islamabad. It was mutually agreed that the area of Kotha Kalan will be jointly visited by the team of population census organization and Revenue field staff. Said visit was made on 26-9-2012 and the revenue field staff reported that Kotha Kalan was partially in District Islamabad and District Rawalpindi and the said mauza is currently in the process of settlement of boundary line passing through the said mauza separating Districts Rawalpindi and Islamabad. Further 'that same is yet to be finalized. In accordance with the recommendations of revenue field staff, report was prepared and was handed over to the team of population census organization for making correction. The District Administration Rawalpindi accordingly requested respondent No.1 that site plan of mauza Kotha Kalan in which 39 additional blocks were made to appear in Rawalpindi may be withdrawn and census process may be completed according to site plan of said mauza consisting of 18 blocks as earlier issued by the population census organization in April, 2011. It was requested that the said recommendations be communicated to the Election Coinmission of Pakistan for correction of record but the said request of Administration of District Rawalpindi was not acceded to.
6. In report filed by respondents No.5 and 7, the inclusion of certain mauza in the year 1980 by the Administrator Capital Territory Islamabad including certain khasra numbers of Kotha Kalan has been admitted. Further submitted that village Kotha Kallan partially falls within District Islamabad and partially in District Rawalpindi and further that in order to bifurcate boundaries of area, falling in two districts, a settlement operation has been commenced by the revenue department Rawalpindi which is in progress.
7. During the proceedings, an application/C.M. Under Order I, Rule 10, C.P.C. Was filed on behalf of M/s Muhammad Bashir and Chaudhry Kamal Anwar residents of Kotha Kalan UC-81, Rawalpindi and same was allowed. The said applicants were accordingly impleaded as respondents Nos.9 and 10. The version of the respondents Nos.9 and 10 is that the instant petition is incompetent and barred by law; only government officials have been made party and none of the voters/residents of UC-81 was made party.
' During course of arguments, the learned counsel for respondents Nos.9 and 10 raised objection on the maintainability of the present petition on the touchstone of judgment of the Honourable Apex Court in case of "Government of Balochistan and others v. Nawabzada Mir Tariq Hussain Magsi"
(2010 SCMR 115). It was emphasized that since the Federal as well as Provincial Government were not impleaded as parties through the Secretaries concerned so same is hit by Article 174 of the Constitution and section 79 of C.P.C.
8. I have considered this aspect of the question raised by learned counsel for respondents Nos.9 and 10. I am of the view that no relief has been prayed for by the petitioner against the Federal as well as the Provincial Government. Respondent No.1, the Joint Census Commissioner, Islamabad, has been alleged to have erroneously included A 39 additional Blocks in UC-81 Kotha Kalan. The respondent No.1 does not form part of Federal or Provincial Governments and is a legal person for all intents and purposes. In this view of the matter the objection raised by the learned counsel is over ruled.
9. The prayer made in writ petition are thi.Ee fold:---
(i) direction to respondents to act strictly in accordance with law excluding 39 census blocks of Union Council No. 81 Kotha Kalan Rawalpindi declaring the same as part of Islamabad Capital Territory and constituency NA.49 Islamabad.
(ii) direction to the authorities to allow Union Council No. 81 Kotha Kalan Rawalpindi to remain within 18 blocks as part of Union Council as well as NA.52 Rawalpindi and PP.6 Punjab Province.
(iii) In forth coming elections of local government, the voters belong to said 39 blocks may be restrained from casting their votes in union council No. 81 Rawalpindi.
10. So far as prayer No.(i) is concerned, from the record it reveals that 39 census blocks were included in NA. 52 (Rawalpindi), PP.6 and Union Council No.81 Kotha Kalan in the new site plan prepared by respondent No.1 which prima facie is in violation of the notification dated 6-1-1981 issued by the Administrator Islamabad Capital Territory in exercise of power conferred upon him by the President in pursuance of "Islamabad Capital Territory (Administration) Order, 1980".
Delimitation of constituencies emanates from section 8 of the Delimitation of Constituency Act, 1974. The Election Commission of Pakistan is empowered to conduct de-limitation of the constituencies as set out in the schedule. Section 10 of the Act ibid regulates the procedure which is re-produced here under:---
10. "Reports of Commission and list of constituencies.- (1) For the purpose of delimiting constituencies, the Commission may receive and consider representations, hold inquiries, summon witnesses and record evidence and shall prepare and publish in the official Gazette a preliminary report and list of constituencies specifying the areas proposed to be included In each constituency.
(2) Any person entitled to vote at an election to the National Assembly or a Provincial Assembly may, within 'fifteen days of the publication of the report under subsection (1), make a representation to the Commission in respect of the delimitation of constituencies.
(3) The Commission shall, after hearing and considering the representations, if any, received by it, make such amendments, alterations or modifications, in the preliminary list published under subsection (1) as it thinks fit or necessary, and shall publish in the official Gazette the final report and list of constituencies showing the area included in each constituency."
' In the same manner section 10-A of the Act ibid provides powers of Commission to make amendments, alterations or modifications in the final list of constituency. This is an admitted fact that to settle present controversy, a joint meeting of District Administrations of Rawalpindi, Islamabad and the Joint Census Commissioner Islamabad was held on 25-9-2012. On the basis of said meeting, on 26-9-2012 a joint visit was made and recommendations were made by the revenue field staff wherein it was recommended that subsequent inclusion of 39 additional blocks in union council Kotha Kalan may be withdrawn and a report was submitted to the Joint Census Commissioner Islamabad recommending that the anomaly may be rectified and matter may be communicated to the Election Commission of Pakistan for correction of their record. As mentioned above, according to provisions of Delimitation of Constituencies Act, 1974, this is the Election Commission of Pakistan, which has to delimit, reconstitute, alter or modify the final list of constituencies. This controversy could only be set at naught by way of referring the matter to the worthy Election Commission of Pakistan which after holding hearing and associating all the stakeholders is competent to pass an order. The respondent No.1 is hereby, directed to send the recommendations of minutes of the meeting dated 25-9-2012 mentioned above and recommendations of the revenue field staff made after a joint visit of the area to the worthy Election Commission of Pakistan. The Election Commission of Pakistan may decide the same after associating all stakeholders including the petitioner and shall pass a speaking order in consonance with The Delimitation of Constituencies Act, 1974,.
11. Prayer No(ii) could also be settled in accordance with the above observations and directions.
12. So far as the question of restraining voters mentioned in disputed 39 blocks and delimitation of union council No 81 Kotha Kalan Rawalpindi is concerned, the honourable full Bench of this Court has already passed a judgment in case of "Arshad Mehmood, v, Commissioner/ Delimitation Authority, Gujranwala and others (PLD 2014 Lahore 221), in which certain provisions of Punjab Local Government Act, 2013 have been declared ultra vires of the constitution and has settled question of law related to the settlement of dispute of delimitation of the local councils. In the said judgment the worthy Election Commission of Pakistan has been empowered to take cognizance of delimitation of local bodies of constituency. The said judgment was assailed by ECP by way of filing Civil Appeal No 297 of 2014 and same was decided in the case of "Election Commission of Pakistan through its Secretary v, Province of Punjab through its Chief Secretary and others" PLD 2014 SC 463.
The Election Commission of Pakistan has been directed by the honourable Supreme Court of Pakistan to initiate and carry out the process of delimitation of constituencies for the Local Government elections and this exercise should be completed within a period of five months and the Election Commission of Pakistan shall thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/amendment in the laws. Since the time frame as set by the apex Court has not been completed so the present petitioner will have alternative remedy available, to agitate the same before competent forums, when the question of delimitation will arise and same will be decided in accordance with amendments in the law as ordered by the learned full Bench of this Court as well as the honourable Supreme Court of Pakistan.
13. From the record it surprisingly revealed that the mauza Kotha Kalan is currently in settlement operation and the boundary line passing through the said mauza separating District Rawalpindi and Islamabad is yet to be finalized. The District Collector Rawalpindi is directed to complete the consolidation within a period of 90 days.
14. With these observations and directions the instant writ petition stands disposed of.