By this single judgment, I am disposed to dispose of W.P.Nos.2213, 2292, 2293, 2155, 2153, and 2272 of 2015 for the reason that common questions of facts and law are involved in all these petitions. They arise from the orders made by the Delimitation Officers and the Delimitation Authorities, who carried out delimitation of constituencies and dealt with appeals preferred by voters and candidates.
2. In W.P.No. 2213 of 2015, the petitioners assailed the validity of the order dated 25.7.2015 passed by the Delimitation Authority, Rawalpindi Division, whereby he dismissed the petitions of the petitioners throwing a challenge to the order of the Delimitation Officer, who had abolished Union Council Numbal and created a new Union Counsel, namely, Dhar Java.
In W.P. Nos.2292 and 2293 of 2015, the abolition of Union Cuncil Sakooot, Tehsil Kallar Syedan, District Rawalpindi was called into question.
In W.P. Nos.2155 and 2153 of 2015, the petitioners felt aggrieved by the division of Unio Council, Kotha, into two Union Councils, namely, Kotha Kalan-I (Union Council No. 80) and Union Council, Kotha Kalan-II (Union Council No. 81).
In W.P. No. 2269 of 2015, the petitioner challenged the validity of the order of the Delimitation Officer as well as that of Delimitation Authority, Whereby the number of the Union Councils in Tehsil Kotli Sattian, District Rawalpindi was deceased from 09 to 06, meaning thereby that 03 Union Councils were abolished at one go by them.
In W.P. No.2272 of 2015, the petitioners assailed the validity of the orders of the Delimitation Authority, Whereby the number of Union Councils was decreased from 13 to 06.
2. Aside from the specifies of each case, the precise question at issue in these petitions is wheather the Election Commission, the Delimitation officer or the Delimitation Authority is vested with the powers and invested with jurisdication to create or abolish a Union Council, a Legal entity, under the Punjab Local Government Act, 2013 (hereinafter to be called as Act, 2013) or Delimitaion of Constituencies Act, 1974.
3. In order to comprehend the controversial issue, all the provision of Act, 2013 that could have a decisive bearing on the outcome of the controversy or were reffered to suring the arguments, are reproduced hereunder for ready reference: "Section 2(v) "Local Government" means a Union Council, a Municipal Committee a Municipal Corporation, the Metropolian Corporation, a District Council or an Authority; Section 2(ggg) "Union Council" means an area notified as a Union Council under this Act; Section (3): Succession.-(1) The following Local governments established under this Act shall succeed the rights, assests and Liabilities of the local governments established under the Punjab Local Government Ordinance, 2001 (XII of 2001) for the local area--
(a) The Metropolitan Corporation shall succeed the rights, assests and liabilities of the City District Government and Town Municipal Administrations;
(b) a District Council, Municipal Corporation or Municipal Committee shall succeed the rights, assets and liabilities of the City District Government, District Government and Town/Tehsil Municipal Administrations Which fall within the area of the District Council, Municipal Corporation or Municipal Committee;
(c) a Municipal Committee shall succeed the rights, assests and liabilities of the city District Government, District Government, Town/Tehsil Municipal Administration and Union Administration which fall within the area of the Municipal Committee;
(d) an Authority shall succeed the rights, assets and liabilities of the City District Government respectively to the extent of health and education.
(2) The Governments or an officer designated shall, within one hundered and eighty days of the commencement of this Act, divide rights, assests and liabilities of the local governments amongst the local governments and the Government, and the decision of the Government or of the destignated officer shall be final."
Section (6): "Local areas.--(1) The Government shall, by notification in the official Gazette, divide a District into urban area and rural area.
(2) For Purposes of this Act, the Government shall, by notification, demarcate and declare a local area consisting of:--
(a) Lahore District as the Metropolitian Corporation; and
(d) urban area in a District, other than the area of a Municipal Corporation , as Minicipal Committee.
(3) The Government may, by notification in the official Gazette, after inviting public objections and suggestions, alter the limits Election Commission but the Government shall not alter the limits of a local area and declare that any area shall cease to be a District Council, Municipal Committee or Municipal Corporation.
(4) Subject to the Act, any two or more adjoining local governments within a District may, after inviting public objections through a resolution passed by two-third majority of the total membership of each of the local governments, make a proposal to the Government for a change in their respective boundaries.
(5) The Government may, with the concurrence of the Election Commission, alter the limits of a local area under this section after the initiation of proceedings of delimitation of constituencies by the Election Commission but the Government shall not alter the limits of a local area after the announcement of election schedule for election in the local area.
Section (7): Division and reconstitution of a local government.-(1) The Government may, by notification in the official Gazette, divide a local government into two or more local governments or reconstitute two or more local governments as one local government or alter the limits of a local government and may specify in the notification the consequences which shall follow the publication of such notification.
(2) When, as a result of such division or reconstitution, any new local government is constituted in accordance with the provisions of this Act in the manner specified in the notification-
(a) the existing members of any local government so divided or reconstituted shall become the members of such local government as the Government may, by notification, specify as if each such member had been elected to that local government; and (b). Such local government shall, to the extent and in the manner specified in the notification, be the successor of the local government so divided or reconstituted.
(3) Nothing contained in this section shall apply to Union Councils and the Union Councils shall be reconstituted under Sections 6 and 9.
"Section (8): Local Government and Delimitation--(1) The Government shall, by notification in the official gazette, determine the number of Union Councils in the metropolitan Corporation, a Municipal Corporation and District Council and Wards for a Municipal Committee in accordance with the First Schedule.
(2) After the demarcation of the local governments under Section 6 and determination of the number of Union Councils and wards the Election Commission shall delimit the Union Councils and wards.
(3) The Election Commission shall delimit and notify the Union Councils and wards on the basis of the principals laid down in Sections 9 & 10, and as nearly as possible under the Delimitation of Constitutions Act, 1974 (XXXIV of 1974) or any other Act of the Majlis-e-Shoora (Parliament).
Section (9): Delimitation of Union Councils.--(1) a Union Council shall be an area consisting of one or more revenue estate 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 as determined for purposes of the last preceding census or a census block or blocks and a revenue estate or revenue estates, delimited and notified as such by the Election Commission.
(2) For purposes of delimitation of a Union Council:
(a) The area of a Union Council shall be a territorial unity;
(b) The boundaries of a Union Council shall not cross the limits of the Metropolitan Corporation, a Municipal Corporation or a District Council; and
(c) The population of Union Councils within a local government shall, as far as possible, be uniform.
(3) The Election Commission shall delimit a Union Council into six wards for the elections of members on general seats and into two wards. Consisting of three adjoining wards of the Union Councils. For the election of the two seats reserved for women.
(4) For purposes of delimitation of a ward of a Union Council:-
(a) A ward shall consists of a village, one or more adjoining villages or, in case of an urban area, a census block or adjoining census blocks;
(b) The boundaries of a ward shall not cross the limits of the Union Council; and
(c) The population of wards within a Union Council shall, as far as possible, be uniform.
Section (10): Delimitation of Wards in Municipal Committees:-(1) The Election Commission shall delimit a Municipal Committee into wards for election of members of the Municipal Committee on general seats.
(2) For purposes of delimitation of a Municipal Committee:
(a) A ward, shall consist of a census block or adjoining census blocks;
(b) The boundaries of a ward shall not cross the limits of the Municipal Committee; and
(c) (c) The population of wards within a Municipal Committee shall, as far as possible, be uniform."
4. From a plain reading of the afore quoted law, the pith and substance thereof comes down to the following:- A Union Council is as much a local Government as is a Metropolitan Corporation or a Municipal Corporation, or a Municipal Committee or a District Council {Section 2(v)} A Union Council is an independent legal entity that enjoys the rights, holds assets and incurs liabilities of the Union Administration which falls within its territorial area. {Section 3(d))
A Union Council shall consist of an area, which is notified as a Union Council under the Punjab Local Government Act, 2013. {Section 2(gge} A Union Council to be established under the Punjab Local Government Act, 2013 shall be a successor of the Union Council that existed under the Punjab Local Government Ordinance, 2001 (XIII of 2001) for "the rights, assets and liabilities". {Section 3(1)(d)} Prior to the in sertion of sub-section (3) in Section 7 of the Punjab Local Government Act, 2013 vide the Punjab Local Government (Second Amendment) Act, 2014; Act XXIV of 2014 dated 10.11.2014), a power vested in the Punjab Government to divide a Union Council into two or amalgamate it into another Union Council to reconstitute it and/or to alter its limits by making a notification in the Official Gazette. At the same time, it was to spell out the ensuing consequences. In other words, this was to be a calculated and well thought out move and was not to be done in a slipshod, mechanical and flippant manner. Now, under the amended law reconstitution of the Union Councils can be achieved only in the manner specified in Sections 6 and 9 of the Act, 2013.
Sub-section (4) of Section 6 is not in operation for the moment, and its provisions may come into play only after the holding of the local Government elections. Therefore, there is no need to dilate upon the same.
Only sub-section (5) of Section 6 appears to be somewhat relevant to the case under consideration. Once the delimitation of constituencies by the Election Commission gets under way, the Government may, with the concurrence of the Election Commission, alter the limits of a local Government but the power of the Government would be done away with, after the announcement of election schedule for the election in a local area. Be that as it may, the aforesaid provisions have nothing to do with the reconstitution of the Union Councils. They simply speak of altering the limits of a local area (Read a Union Council). The Government is enjoined upon to make consultations with the Election Commission so as to evolve/reach a consensus. When the Government and the Election Commission are one the same page regarding bringing about a change in the limits of a local area, this can be attained, subject to the rider that following the announcement of an election schedule for a particular local area, neither the Government nor the Election Commission can exercise this power, however much they desire so or feel expedient to do so.
(vii) The question arises whether the Government is empowered to make alterations in the existing limits of a Union Council before the initiation of proceedings of delimitation of constituencies. The conjoint reading of sub-sections (1) and (2) of Section 6 and sub-section (3) of Section 7 of the Act, 2013 lead to the conclusion that the Government may do so, after following the procedure laid down in sub-section (3) of Section 6.
There is another aspect of the case. Under sub-section (3) of Section 6, the powers of the Government with regard to the altering of limits of a local area are expressed with reference to a District Council, Municipal Committee or Municipal Corporation. This sub-section goes a step further and says that when objections to the proposed altering of the limits of a local area/local made by the public are attended to and counter-proposals/ suggestions are duly considered by the Government and it resolves upon making alterations in a particular manner, it would declare so by a notification, whereafter an area shall cease to be a District Council, Municipal Committee or Municipal Corporation. It needs to be underscored that the same results might be achieved by invoking the provisions of Section 7 of Act, 2013. But the Government has been debarred from following the provisions of Section 7 with respect to the reconstitution of the Union Councils.
(x) If the lawmakers so intended to confer powers upon the Government to make alterations in the limits of a Union Council, thereby creating or abolishing a Union Council, they could have simply said so by adding the word "Union Council", after the word "Corporation" in subsection (3) of Section
6. If the language of sub-section (3) of Section 6 is stretched to cover a Union Council, even then before creation or abolition of a Union Council, it would be obligatory for the Government to invite public objections. The public may also offer suggestions of their own, including the counter- proposals. Unless this massive exercise is done and that too in a genuine and transparent, manner and the objections are rejected or upheld by a well-considered order, there would be a question mark over the notification so issued by the Government, and a voter/candidate may question its validity through appropriate proceedings. When other avenues are closed to him, he may file a writ petition to impugn the validity of a notification issued under subsection (3) of Section 6 of the Act, 2013. In the instant cases, there is nothing on the record that the Government even went through the motions, not to speak of its adherence to the law in letter and spirit.
(xi) Now, turning to Section 9 of the Ad, 2013, its provisions do not even remotely suggest that they empower the Election Commission, a Delimitation Officer or a Delimitation Authority to create or abolish a Union Council. If the provision of clause (c) of sub-section (2) of Section 9 is closely looked at, it would become obvious that it relates to Union Councils within a local Government.
Here the reference is to the constitution of Urban Union Councils within a Municipal Corporation or a Metropolitan Corporation or to Rural Union Councils within a District Council. The use of plural for 'Union Councils' is a key to understanding the scheme of law. This provision proceeds on the premises that there do exist Union Councils. What the Election Commission or a Delimitation Officer is to keep in view, while carrying out delimitation, is that population of one Union Council might not be larger/greater than the other or the rest of the Union Councils and an effort is to be made to achieve uniformity in delimiting Union Councils within a local Government.
(xii) It seems that the provisions of Section 8 of the Act, 2013 have created confusion in the minds of the Delimitation Officers and the Delimitation Authorities. They remained fixated on the number of Union Councils determined by the Government. They attempted to redraw the boundaries and alter the limits of Union Councils by contracting or expanding them to bring them in conformity with the number fixed by the Government. Little did they realize that the provisions of Section 8 come on the heels of those of Sections 6 and 7. It is for the Government to make a decision about the increase or decrease of the Union Councils within a Metropolitan Corporation or a Municipal Corporation or a District Council by following the provisions of Section 6 in a manner adumbrated hereinabove. The Election Commission, a Delimitation Officer or a Delimitation Authority is not to take this complex and daunting task upon themselves. There are no implied powers conferred upon them to fill the unbridgeable gaps. The functions and duties of both the Government and Election Commission are delimited. They are not to be arrogated by one or the other at the cost of the other. Sub-section (2) of Section 8 makes the intention of the lawmakers manifest. This lays down that the Election Commission shall come in the picture and start delimiting the Union Councils only after the demarcation of the local areas is carried out under Section 6 and the number of the Union Councils is settled/determined by the Government by a notification in the official Gazette in terms of sub- section (1) of Section 8. If this process is reversed or skewed, it would turn the scheme of local Governments on its head.
At the cost of repetition, it is stated that the birth and death of a legal entity such as a Union Council is to be attended by and overseen by observing certain specified legal formalities.
Asphyxiation or annihilation of a legal entity in the name of delimitation and that too at the hands of the Election Commission or its functionaries is completely unheard of and hard to digest.
5. At this stage, it is worthwhile to mention that the learned Law Officer invited the attention of the Court to Stction 10-A of Act, 2013 to urge that after the notification of the election schedule, this Court stands denuded of the powers of a judicial review and is precluded from correcting any delimitation. It would be advantageous to eproduced Section 10-A hereunder: "[10A. Finality of delimitation.-A Court, officer or authority shall not review or correct any delimitation of a Union Concil or word after the notification of the election schdule] I have had the occasion to deal with this objection in the case of "Sheikh Attiq-ur-Rehman v.
Syed A.I Murtaza" (2014 YLR 1215), wherein it was observed that: "As regards the contention of the learned Additional Advocate-General that finality is attached to the delimitation process in the wake of insertion of Section 10-A of the Local Governments Act, 2013, suffice it to say that it prohibited a Court, officer or authority not to review or correct any delimitation of a union council after the notification of the election schedule. But in so far this Court is concerned, its right of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be abridged or curtailed through a sub-Constitutional measure. And if an order is questioned before it on the ground that it has been passed either without lawful authority or in excess of jurisdiction or the concerned authority declined to exercise its jurisdiction or the order was passed in violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 or the same is mala fide, the same shall be struck down, in spite of the insertion of Section 10-A in the Local Government Act, 2013."
6. A Full Bench of this Court in the case of "Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala" (PLD 2014 Lahore 221) held as under: "17. In conclusion, the ouster clause under Section 10A of the Act does not in the slightest, abridge or curtail the constitutional jurisdiction of this Court to judicially review the orders, notifications and the acts of the executive i.e., the Delimitation Authority and Delimitation Officer in this case. It also matters little if the ouster clause is considered to be a time specific clause, as argued by some of the respondents. Cotfrts usually give due weightage to any administrative urgency of the Executive but this does not mean that the doors leading to Courts can be shut down as this would result in Curtailing and abridging the judicial power. This is opposed to independence of judiciary and the constitutional framework of separation of powers.
Ouster clause and the Election Commission of Pakistan.
18. Section 10A of the Act also does not permit any "authority" to review or correct delimitation after the announcement of the election schedule. This purportedly ousts the constitutional jurisdiction of the Election Commission of Pakistan from performing its constitutional role under Articles 140A(2), 218(3) and 219(d) of the Constitution, which is neither conceivable nor permissible. Election Commission of Pakistan, under the Constitution, can hold elections i.e., to organize, to conduct and make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law. Article 222, provides that no electoral law shall have the effect of taking away or abridging any of the powers of the Election Commission provided in Part VIII of the Constitution.
19. Section 10A of the Act not only attempts to completely curtail judicial power of the Constitutional Court, it also puts fetters on the exercise of the 'constitutional authority of the Election Commission of Pakistan. Instead of touching the constitutionality of Section 10A of the Act, the said provision can be read down. "The theory of reading down is a rule of interpretation resorted to by the Courts where a provision, read literally, seems to offend a fundamental right, or falls outside the competence of the particular legislature. In interpreting the provision of a statute the Courts will presume that the legislation was intended to be inter vires and also reasonable. The rule followed is that the enactment is interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible.
Legislature is presumed to be aware of its limitations and is also attributed an intention not to over-step its limits. To keep the act within the limit of its scope and not to disturb the existing law beyond what the object requires, it is construed as operative between certain persons, or in certain circumstances, or for certain purposes only, even though the language expresses no such circumstances of the field of operation. To sustain law by interpretation is the rule. The reading down of a provision of a statute puts into operation the principle that so far is reasonably possible to do so, the legislation should be construed as being within its power. It has the principal effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the Court will construe it in a more limited sense so as to keep it within power. If certain provision of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional the Court would lean in favour of the former construction.
"18. Reliance is placed on: Messrs Chenone Stores Ltd. Through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others (2012 PTD 1815) and Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582). We, therefore, read down Section 10A of the Act and declare that the ouster clause does not in any manner curtail or abridge the jurisdiction of the Constitutional Court or the Election Commission of Pakistan."
7. Having analyzed the relevant provisions of the Local Government Act, 2013, I have no doubt in my mind that it falls outside the scope, range of the powers and functions of the Election Commission, a Delimitation Officer or a Delimitation Authority to create or abolish a Union Council. As they have exceeded their powers and jurisdiction, their actions impugned in these petitions are declared without lawful authority and of no legal effect. Consequently, the process of delimitation resulting in the creation or extinguisher of the Union Councils is to be carried out afresh to bring it in accord with the law. The Election Commission shall announce fresh election schedule, after undertaking and completing the proceedings of delimitation.
8. These petitions are allowed in the above terms.