' Qazi Faez Isa, J: Through this petition for leave to appeal, the petitioner assails the order dated September 29, 2016 of the Hyderabad Bench of the High Court of Sindh passed in a constitution petition which was filed by the petitioner against the order dated May 14, 2016 passed in Election Appeal No, 9 of 2016 ("the Appeal"), which was decided by the District and Sessions Judge, Sanghar, the designated Appellate Authority. The Appeal was filed under sub-rule (5) of rule 18 of the Sindh Local Councils (Elections) Rules, 2015 ("the Rules") made pursuant to section 138 of the Sindh Local Government Act, 2013 ("the Act").
2. The following are the undisputed facts between the petitioner and the contesting respondent No,5. Both of them participated in the local government elections on the "general members" seat for Ward No,1 of Town Committee Berani, District Sanghar, which were held on the basis of adult franchise; the petitioner was elected and the respondent No,5 was unsuccessful. After the general members had been elected, elections to the reserved seats followed. Amongst the reserved seats, a seat was reserved for "one labourer or peasant" (section 18(2)(d) of the Act). The respondent No, 5, having lost the election on the general members seat, submitted nomination paper to contest elections on the reserved seat as a labourer. The Deputy Commissioner, designated as the Returning Officer, accepted the respondent No,5's nomination paper wherein he claimed himself to be labourer and got elected on the reserved seat of labourer/peasant. The petitioner filed the Appeal challenging the acceptance by the Returning Officer of the nomination paper of respondent No,5 alleging that since he was not a labourer he could not have contested the reserved seat of labourer/peasant.
3. Mr. Rafiq Ahmed Kalwar, the learned counsel for the petitioner, stated that the petitioner and respondent No, 5 are brothers, belonging to a well-to-do, influential and established political family of Sindh. Their father was a member of the West Pakistan Assembly in 1967, a Member of the National Assembly of Pakistan in 1970 and 1980, a Member of the Majlis-e-Shoora during Zia-ul- Haq's regime and their sister is a Member of the Assembly. The learned counsel further stated that the respondent No,5 was a member of the Sindh Provincial Assembly in 1985, works in a foreign bank as an Assistant Relationship Manager receiving an annual salary of six hundred thousand rupees, owns several properties, leads a luxurious life which is also reflected on his social media profile and travels abroad several times a year, therefore, he clearly is not a laborer. The learned counsel submitted, that as the petitioner had proposed a candidate for the reserved seat of laborer and was an elected member of the same Town Committee, therefore, both the High Court and the Appellate Authority were wrong to hold that he was not an aggrieved person and did not have locus standi to file the Appeal. The learned counsel further submitted, that the respondent No,5, having lost the elections on the general member seat, submitted his nomination paper on the reserved labourer seat, which was unfair and also deprived a genuine labourer from his right of representation, and if this is permitted then the concept of reserved seats for the underprivileged would fall prey to privileged and powerful individuals. He stated that, it was the duty of the Returning Officer to ensure that those contesting on reserved seats were prima facie entitled to do so. In conclusion the learned counsel stated that the Appeal was dismissed on an incorrect understanding of the applicable provisions, as sub-rule (5) of rule 18 of the Rules, which was relied upon by the Appellate Authority and the High Court, pertains to appeals filed by candidates whose nomination paper was rejected, whereas sub-rule (5) of rule 18 enables a challenge on other grounds, including the illegal acceptance of a nomination paper.
4. On the other hand Mr. Muhammad Umar Lakhani, the learned counsel representing respondent No, 5, stated that both the Appeal and the Petition were rightly dismissed by the Appellate Authority and the High Court respectively and well-reasoned orders were passed and such concurrent exercise of discretion should not be interfered with. He supported the reasons mentioned in the impugned orders and reiterated that the petitioner was not an aggrieved person and the Appeal could not be filed against the acceptance of a nomination paper.
5. We have heard learned counsel for the parties and have gone through the record of the case.
The Appellate Authority referred to sub-rule (5) of rule 51 of the Rules and dismissed the Appeal by holding that the appeal was not maintainable since it could "only be filed by the candidate whose nomination form has been rejected". The learned judges of the High Court dismissed the petition on the following grounds: an appeal could only be preferred against the rejection of nomination paper; the petitioner was not an aggrieved person nor had locus standi to file the Appeal and petition as he was not a candidate on the reserved seat for labourer/peasant; the Appeal was not maintainable as the Election Commission of Pakistan and the Returning Officer were not arrayed as respondents; the respondent No, 5 was "employed in Dubai Islamic Bank as Assistant Relationship Manager, which is a clerical job" therefore he was a labourer; and the respondent No, 5 owned twenty acres of agricultural land which he was cultivating with the "use and assistance of servants is neither restricted nor an exclusion" therefore he could also contest the said reserved seat as he was also a peasant.
6. To better understand the controversy it would be useful to reproduce sub-rules (4) and (5) of rule 18 and sub-rule (5) of rule 51 of the Rules:
18. Scrutiny.
"(4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it, and shall, in the case of rejection, record reasons therefor."
(5) An appeal against the decision under sub-rule (4) shall lie to Appellate Authority appointed by the Election Commission and shall be filed and disposed of by the date specified in the election programme."
51. Scrutiny of nomination papers.
"(5) Any candidate whose nomination paper has been rejected, may file an appeal to the Appellate Authority to be appointed by the Election Commission before such time as may be specified by it. Such an appeal shall be disposed of before such time as may be specified by the Election Commission and any orders passed in this behalf shall be final."
The aforesaid are two different provisions that deal with appeals. An appeal under sub-rule (5) of rule 18 lies against a decision of the Returning Officer with regard to accepting or rejecting the nomination paper; without specifying who may file it. Whereas under sub-rule (5) of rule 51 the appeal can only be filed by a candidate whose nomination paper has been rejected. The Appeal was filed under sub-rule (5) of rule 18; the title of the Appeal also clearly stated this. Both the Appellate Authority and the High Court overlooked this fact. The Appellate Authority committed an illegality by not exercising the jurisdiction vesting in it, which the High Court failed to correct and thus perpetuated the illegality. The dispute was between the petitioner and respondent No,5, rule 18(5) did not require that the Election Commission of Pakistan and/or the Returning Officer be arrayed as respondents and the petitioner could not be non-suited on this ground. However, since the High Court has also decided the case on merits it would be inappropriate to remand the case back to it, particularly since most of the facts are not denied, and as election disputes merit early decisions.
7. Section 2(xxxv-a) of the Sindh Local Government Act, 2013 defines a labourer as: " "labourer" includes a worker or workman as defined in the Factories Act, 1934 or in an industrial or commercial establishment as defined in the West Pakistan Industrial and Commercial Employment (Standing Ordered) Ordinance, 1968, at clerical labour for hire or reward or under the Sindh Industrial Relations Act, 2013"
Admittedly the respondent No,5 worked in a foreign bank as an Assistant Relationship Manager and was paid a fairly substantial salary, but still the learned judges of the High Court held that he was a labourer because he performed "a clerical job". The learned judges did not give any reason for their opinion, which is surprising, particularly since the admitted facts clearly suggested that the respondent No,5 was not a labourer.
8. The learned judges of the High Court also proceeded to unnecessarily categorize the respondent No,5 as a peasant, and that too for the wrong reasons. Respondent No,5 claimed himself to be a labourer in his nomination paper therefore there was no need to examine whether he was a peasant. The learned judges however determined that since the respondent No,5, "himself has been cultivating the same [20 acres of agricultural land] with the assistance of his servants and haris" therefore he was a peasant. Peasant is defined in section 2(1i) of the Act: ' "peasant" includes a person who is engaged personally in the cultivation of land".
' The aforesaid definition clearly excludes the respondent No,5 as he was not personally cultivating the land. Moreover, the fact that the respondent No,5 had "servants and haris" to cultivate his land meant that he was neither a peasant nor a labourer. The garb of a downtrodden peasant who tills the land to eke out a living cannot be donned to secure an advantage.
9. Elections are contested on the basis of adult franchise however reserved seats have been introduced to enable certain categories of persons who may not otherwise be able to compete fairly, including women, peasants, workers and non-Muslims. The Constitution provides that the State shall ensure that, "special representation will be given to peasants, workers and women" in local government institutions (Article 32) and that "steps shall be taken to ensure full participation of women in all spheres of national life" (Article 34). The Constitution also requires the State to "safeguard the legitimate rights and interest of minorities" (Article 36). Socially and/or economically deprived and/or discriminated sectors of society (non-Muslims, women, peasants and workers) are specifically mentioned in the Constitution to enable them to overcome the discriminatory and traditional barriers that prevent their due representation in elected bodies. The 'equality of citizens' enshrined as a Fundamental Right in the Constitution (Article 25) may also remain elusive if equality of opportunity is not provided to all. Reserved seats can therefore be categorized as a form of compensatory justice aimed at alleviating deprivations, not at the cost of others but to create a level playing field. The framers of the Constitution in their wisdom inserted these provisions in the Constitution to weed out bias, prejudice, discrimination, unfairness and to attain a just society.
10. In order to fulfill the mandate of the Constitution to protect and promote the interest of the abovementioned categories of persons laws, such as the Act, have been promulgated. Every effort must therefore be made to ensure that the provisions of the Constitution and the Act do not fall prey to machinations. If a person falsely projects himself to belong to a weak, vulnerable or underrepresented class, and captures a scat reserved for such persons he deprives those that the law had sought to protect and promote. The reserved seat for a labourer/peasant is meant to secure the representation of a downtrodden and deprived segment of society, to have their voice heard, to encourage their participation in decision making that affects them and help alleviate their suffering.
11. Therefore, for the reasons mentioned above, this petition is converted into an appeal and allowed. We direct that the respondent No,5 be immediately de-notified from the reserved seat of labourer/ peasant of Town Committee Berani, Sindh, and the said reserved seat be filled-in as per law. We also impose costs in the sum of twenty thousand rupees on the respondent No,5 since an advantage, not otherwise available to him, was blatantly sought and obtained and a genuine labourer/peasant was deprived of his/her right. Office is directed to send a copy of this judgment to the Election Commission of Pakistan and the Provincial Election Commissioner (Sindh) for information and compliance.