By way of this common order, I intend to decide instant constitutional petition bearing W. P. No. 7415 of 2015 (Muhammad Jamil v. Appellate Authority etc.) and also Writ Petitions No. 7304 of 2015 (Bakhtawar Khan v. Appellate Authority etc.), 7349 of 2015 (Muhammad Rafiq v. Appellate Authority etc.), 7355 of 2015 (Muhammad Rizwan v. Additional Sessions Judge etc.), 7416 of 2015 (Rana Ehsan Dilber v. Appellate Authority etc.), 7470 of 2015 (Khalil Ahmad v. Election Commission of Pakistan, etc.), 7480 of 2015 (Sajjad Haider v. Appellate Authority etc.) and 7313 of 2015 (Adnan Asghar Bodhla v. Appellate Authority etc.) as issue involved in all these constitutional petitions is interpretation of Section 27(1)(c) of the Punjab Local Government Act, 2013.
2. Since interpretation of Section 27(1)(c) of the Punjab Local Government Act, 2013 is involved as such Mehar Muhammad Iqbal, Asstt. Advocate General present in Court accepts notice under Order XXVII-A Rule 1 C.P.C. As noted above, since interpretation of question of law is involved as such I do not consider it imperative to give facts of individual case. Suffice it to say that the petitioners in all these petitions except Writ Petition No. 7470 of 2015 (Khalil Ahmad v. Election Commission of Pakistan etc.) filed nomination papers to contest elections for the Member of Ward in the Municipal Committee whereas the petitioner in W.P. No. 7470 of 2015 filed nomination papers to contest election of the Member of Ward in the Union Council. Their nomination papers were rejected by the respondent-Returning Officer on the ground that they were not the voters of Ward for which they had filed nomination papers to contest election of member. By not accepting the decision of said respondent, the petitioners approached the Appellate Authority by way of appeals as provided under Section 14(10) of the Punjab Local Government (Conduct of Elections) Rules, 2013.
Their appeals were, however, dismissed by the appellate authority. Hence these Constitutional petitions.
3. So the issue sought to be resolved through these petitions is whether a person qualifies to contest election to be a member of a Ward only if he is a voter of the same Ward or he is eligible to contest election of any Ward falling in the same Municipal Committee/Union Council/Constituency in which his vote is registered. As the issue involved in this matter relates to interpretation of Section 27 of the Punjab Local Government Act, 2013 which deals with qualification and disqualification for candidates to be elected as member of the ward and local government, which appears to be of question of first impression, as such this Court vide order dated 2.10.2015 appointed Mr. Ijaz Ahmad Ansari, Qazi Bilal Ahmad and Mr. Nadeem Iqbal Chaudhry, Advocates as Amicus Curiae to assist the Court on this issue.
4. By opening arguments, learned counsel for the petitioners submit that there is no restriction in the Punjab Local Government Act, 2013 (hereinafter to be called as the Act) to contest an election only from the Ward in which the candidate is registered as a voter and as such the impugned orders of the respondents are liable to be set aside being not sustainable in the eye of law. Learned counsel submits that Section 27 1(c) of the Act mandates that a person qualifies to be elected as a member of a ward or the local government, if he is enrolled as a voter in the electoral rolls of the ward or the local government from which he is contesting the election and since the petitioners are voters of the local government from which they are contesting election as such they are eligible to contest election from the wards of the said local government. Further contends that Section 2(v) of the Act defines the word 'local government' which means a Union Council, a Municipal Committee, a Municipal Corporation, the Metropolitan Corporation, a District Council or an Authority and since the ward is a limb/unit of a Union Council or a Municipal Committee which is a local government as such the petitioners are eligible to contest election of the Ward being voters of the same constituency/local government in which said Ward falls. Learned counsel for the petitioner in Writ Petition No. 7470 of 2015 supplements the arguments by submitting that for the construction of Municipal Committee a Ward is a complete and independent constituency whereas for the purpose of Zila Council, Union Councils are made Constituencies and Ward in the system of Union Council is merely a unit and not a constituency and with this backdrop the legislature has bifurcated Union Council and Ward in Section 8(3) of the Act otherwise there was no justification for incorporating both of them. So the condition imposed through 27(1)(c) of the Act is not attracted to the cases where a candidate contests election of Member of Ward of a Union Council and not of Municipal Committee and the impugned orders are liable to be set aside.
5. Conversely, learned Law Officers while adopting the arguments of learned amicus curiae have submitted that under the Law a candidate must be a voter of the same Ward/Union Council from which he intends to contest election and since the petitioners are not voters of the wards from which they are contesting election as such they have rightly been ousted to contest elections.
6. Learned amicus curiae have very aptly assisted the Court while interpreting the relevant provisions of law maintaining that the Ward is a basic constituency for the purposes of the election of general members and it is smallest unit in the entire delimitation process and is an important building block in the constituencies so delimited and that if the arguments of learned counsel for the petitioners are accepted the very concept of delimitation of Constituencies undertaking the delimitation shall be defeated. By referring to different provisions of the Act and also the Punjab Local Government Rules 2013 the learned amicus curiae have argued that there is no distinction between a Ward in a Union Council and a Ward in Municipal Committee. They have further assisted the Court referring the very preamble of the Local Government Act, 2013 that keeping in view the very purpose to promulgate the Act it can safely be inferred that intent of the legislature is that the candidate to be elected as member of the Ward must be from the same ward of which he is contesting election.
7. Before proceeding in the matter it may be mentioned that in a Democratic System of Government which is based on the internationally acknowledged Motto: Government by the people, on the people, for the people, the Punjab Local Government Act, 2013 is one of the attempts in this field. After the birth of Pakistan the system of Basic Democracies was introduced by the General Ayub Khan in 1959. Under this system two laws i.e. The Basic Democracies Ordinance, 1959 and the Municipal Administration Ordinance, 1960 were promulgated. However, the system of Basic Democracy stood discredited and a new law known as the Punjab Peoples Act, 1972 was promulgated. Thereafter the Punjab Local Government Act, 1975 was passed which was substituted by the Punjab Local Government Act, 1979 and so on. The latest in these series is the Punjab Local Government Act, 2013. Preamble of this Act manifests that main theme to promulgate this law is to establish an elected local government system to devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments in order to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level and to deal with their ancillary matters.
Needless to mention that a preamble of a Statute serves as an introductory statement of the document's fundamental purposes and guiding principles. With this background now we proceed ahead.
8. For the purpose of conduct of local government elections under the Act, territory of the District has been disseminated into local areas: i.e. Urban Area and the Rural Area. Section 6 of the Act defines the Local Areas according to which the Government shall, divide a District into urban area and rural area. Sub Section (2) provides that the Government shall, by notification, demarcate and declare a local area consisting of: a) Lahore District as the Metropolitan Corporation. b) Rural area in a District, other than Lahore District, as District Council; c) urban area in a District, other than the area of a Municipal Committee, as Municipal Corporation; and d) urban area in a District, other than the area of a Municipal Corporation, as Municipal Committee.
Section 8 provides that the Government shall determine the number of Union Councils in the metropolitan Corporation, a Municipal Corporation and a District Council and Wards for a Municipal Committee.
Section 9 describes delimitation of Union Councils. According to it a union council shall be an area consisting of one or more revenue estates or, in the case of an area where revision of settlement under the law has not taken place, one or more census villages or in the case of an urban area, a census block or blocks and a revenue estate or revenue estates, delimited and notified as such by the Election Commission. Sub Section (3) of Section 9 provides that the Election Commission shall delimit a Union Council into six wards for the election of members on general seats. Sub Section (4) provides delimitation of Ward of a Union Council and according to clause (a) a ward shall consist of a village, one or more adjoining villages, or in case of an urban area, a census block or adjoining census blocks.
Section 10 provides delimitation of Wards in Municipal Committees. Sub Section (1) says that the Election Commission shall delimit a Municipal Committee into wards for election of members of the Municipal Committee on general seats. Clause (a) to sub Section (2) says that for the purposes of delimitation of a Municipal Committee a ward shall consist of a census block or adjoining census blocks.
9. The picture which thus emerges in one's mind after going through the above provisions of the Act would be that the territorial area in a District other than the District of Lahore shall either consist of Municipal Corporation/Municipal Committee and the Distt. Council. The Municipal Corporation in case of urban area and District Council in case of rural area shall consist of union councils. These union councils (irrespective of fact whether constituting Municipal Corporation or District Council) shall comprise the Wards which shall consist of a village, one or more adjoining villages (in case of rural area) and a census block or adjoining census blocks (in case of urban area. (Section 9(4)(a).
Likewise the Municipal Committees shall be delimited into Wards (Sec.10) and each of such wards shall consist of a census block or adjoining census blocks (Section 10(2)(a). A combine study when made of these provisions of the Act would make it clear that there is no distinction between Wards of a Union Council and the Wards of a Municipal Committee as defined in Section 2 (lll-a) of the Act so far as the qualification of a candidate for member of a Ward is concerned.
10. Now we come to the question whether a person contesting election of general member of the Ward must be a voter of said Ward or he can be of voter of any other ward of the same Union Council/Municipal Committee. As noted above, Section 27 deals with qualifications and disqualifications for candidates and elected members. For the purposes of present issue only qualifications for candidates are relevant as such only the same may be reproduced hereunder:
27. Qualifications and disqualifications for candidates and elected members. (1) A person shall qualify to be elected as a member or to hold an elected office of a local government, if he: a) is a citizen of Pakistan; b) except the youth member, is not less than twenty five years of age on the last day fixed for filing the nomination papers; and c) is enrolled as a voter in the electoral rolls of the ward or the local government from which he is contesting the election. (emphasis and underlining is mine)
The confusion seems to have crept into one's mind because in original Statue clause (c) of sub section (2) of Section 27 of the Act was a bit different and was as under:
(c) is enrolled as a voter in the electoral rolls of the Union Council or the ward.
It was through the Punjab Local Government (Amendment) Act, (Act XXIII of 2013) dated 13.12.2013 that the original clause (c) of Section 27(1) was substituted as quoted earlier. A bare perusal of the above explicit substituted provision of Section (27)(1)(c) of the Act would reveal that to qualify to be elected as a member of a Ward a person must be enrolled as a voter in the electoral rolls of the said Ward from which he is contesting the election. Keeping the contention of learned counsel for the petitioners in mind I have microscopically analyzed this provision of law. The legislature in its wisdom has added article "the" before the word "Ward" which conveys the intention of legislature.
The question is whether addition of word "the" is just a paint to look at or it has been used with all seriousness because if it has been used to give stress, it would have meanings to it and would leave little to imagination. Exact answer to this query may put to rest the controversy. According to Oxford Advanced Learner's Dictionary of Current English A S Hornby 7th Edition "the" has been elaborated upon in the following manner: The.
1. Used to refer to that has already been mentioned or is easily understood:
2. Used to refer to that is the only, normal or obvious one of their kind:
3. Used when explaining which person or thing you mean:
4. Used to refer to a thing in general rather than a particular example:
5. Used with adjectives to refer to a thing or a group of people described by the adjective:
6. Used before the plural or last name to refer to a whole family or a married couple:
7. Enough for a particular purpose:
8. Used with a unit of measurement to mean `every:
9. Used with a unit of time to mean: 10.
Used, stressing the, to show that the person or thing referred to is famous or important.
According to Cassell Concise English Dictionary updated edition 1995: The. A. Applied to a person or thing or persons or things already mentioned, implied, or definitely understood; used before a singular noun to denote a species; prefixed to adjectives used absolutely, giving them the force of a substantive; before nouns expressing a unit to give distributive force (as `90p. The pint?); emphatically to express uniqueness, used before adjectives and adverbs in the comparative degree.
The A Z Collins English Dictionary 12th Edition defines word `the' to mean:
1. Used preceding a noun that has been previously specified;
2. Used with a qualifying word or phrase to indicate a particular person, object, etc. As distinct from others;
3. Used preceding certain nouns associated with one?s culture, society, or community:
4. Used preceding present participles and adjectives when they function as nouns;
5. Used preceding titles and certain uniquely specific or proper nouns.
6. Used preceding a qualifying adjective or noun in certain names or titles: 7.Used preceding a noun to make it refer to its class generaically.
8. Used instead of my, you etc. With parts of the body. 9. (usually stressed) the best, only, or most remarkable;
10. Used with proper nouns when qualify.
11. Another word for per, esp with nouns or noun phrases of cost: 12 Often facetious or derogatory my; our:
13. Used preceding a unit of time in phrases or titles indicating an outstanding person, event, etc:.
What is derived from the above elaboration of exact uses of "the" is that use of `the' before Ward' is clearly intended to specify a particular ward identified by itself and, therefore, it cannot be meant or substituted to `a Ward' or 'any Ward'. It is also indicative of the clear intention of the legislature that the indication of the particular Ward means the Ward from which the person intends to contest election to become a member. It further lends assurance to the view that it excludes the possibility of any ambiguity in the expression and refers to a particular Ward. It need not be overemphasized that the function of court is to interpret and not to legislate. The language employed to express the intention is not that the person may be a voter of a/any Ward of the same Union Council or the Municipal Committee, as the case may be, in order to qualify to contest election of a ward but the word used is that in order to qualify for the candidate of a member of Ward the person must be voter of the said ward of which he intends to contest election. Much emphasis appears to have been laid by the legislature on the word `the' and in this case word 'the' which according to grammar is `article' is used with possessive case. Therefore the contention of learned counsel for the petitioner that the same means any ward of the constituency is unworthy of consideration.
11. Preamble of the Punjab Local Government Act, 2013 may be reproduced hereunder: "Whereas it is expedient to establish an elected local government system to devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments; to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level; and, to deal with the ancillary matters; It is enacted as follows:-"
If one keeps in mind the intent of very promulgation of the Act as would appear from the Preamble of this Act, main theme to promulgate this law is to establish an elected local government system in order to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level and to deal with their ancillary matters, therefore, it is necessary that their representative must be amongst them.
Perhaps in this backdrop of the matter, clause (c) to sub section (1) of Section 27 has been added by way of the Punjab Local Government (Amendment) Act, (Act XXIII of 2013) dated 13.12.2013 which was not part of the original Statute i.e. The Punjab Local Government Act, 2013 (Act XVIII of 2013) brought on the book on 23.8.2013. I am, therefore, clear in my mind that these provisions are explicit in nature and have determinative effect and no other view can be taken other than what has been expressed by the same.
12. The crux of the above discussions and observations is that there is no distinction between Ward of a Municipal Committee and a Ward of Union Council so far as it relates to qualification of a candidate to become member is concerned; separate mentioning of Union Council and ward as used in Section 8(3) of the Act are only for the purposes of delimitation by the Election Commission and that in order to qualify to be a member of a Ward a candidate must be registered as a voter in the same Ward and I hold accordingly.
13. In culmination of the discussion referred supra, I find no merit in these petitions which are hereby dismissed.
14. Before I part with the judgment, I must appreciate and admire all the learned counsel and learned Law Officers for their able assistance and particularly Mr. Ijaz Ahmad Ansari, Qazi Bilal Ahmad and Mr. Nadeem Iqbal Chaudhry, Advocates who rendered assistance and their valuable views as Amicus Curiae and facilitated the Court to resolve the above issue.