' Applicant Muhammad lqbal Pahor and respondent Ghulam Ali Gopang 'contested election for the candidate of bye-election to the seat of Taluka Nazim, Hyderabad on 20-10-2003. The total number of members of electoral college was 224. The applicant secured 105 votes whereas respondent Ghulam Ali Gopang obtained 114.
2. The applicant moved an application before the Honourable Chief Election Commissioner, Pakistan complaining wherein that since the respondent has not secured the votes more than 50% of total electoral college i,e, 231, therefore, the respondent may not be declared returned candidate.
3. The aforesaid application has been marked to me by the Honourable Chief Election Commissioner of Pakistan for disposal after the notice to concerned parties.
4. It would be pertinent to mention here that the powers for deciding the election matters have been delegated to me by Honourable Chief Election Commissioner of Pakistan vide Notification No,F.1(7) 2003 Law dated 6-3-2003.
5. The parties and representative of the Secretary to Law, Department Government of Sindh are no notice.
6. I have heard Mr. Jhamat Jethanand for applicant Muhammad Iqbal Pahor and Mr. Hussain Shah Rashidi for the respondent Ghulam Ali Gopang and Deputy Secretary Law Department Government of Sindh.
7. According to applicant the returned candidate was required to secure more than 50% of the votes notwithstanding the fact that 7 seats were falling vacant. The case of respondent is that he had to secure 50% of the total membership of Electoral College who were notified to be the members of the Electoral College for the Taluka and that was only 224 and not 231.
8. For convenience sake I would like to reproduce the relevant sections 148, 154 and 156(5) of Sindh Local Government Ordinance, 2001.
"148. Franchise.--- (1) Members of a Union Council including Union Nazim and Naib-Nazim shall be elected through elections based on adult franchise and on the basis of separate electorate.
(2) The electoral college for the election of Zila Nazim and Naib Zila Nazim and reserved seats of women, peasants and workers, and minorities in the Zila Council shall be all the members of Union Councils in the District including Union Nazims and Naib Union Nazims.
(3) The electoral college for the election of a Taluka Nazim, Town Nazim, Taluka Naib Nazim, Town Naib Nazim and reserved seats of women, peasants and workers, and minorities in the Taluka Council and Town Council shall be all the members of the Union Councils in the Taluka or, as the case may be, To wn including. Union Nazims and Naib Union Nazims: Provided that for the election for reserved seats for women in Zila Council proportionately divided among Talukas or towns shall be all members of the Union Councils in a Taluka, or, as the case may be, town. Explanation:--- For the purpose of this section, all members of Union Councils notified as returned candidates in the elections held under this Ordinance shall be deemed to be members of the electoral college."
154. Joint candidacy and elections.--- (1) A Zila Nazim and a Naib Nazim, a Taluka Nazim and a Naib-Taluka Nazim a Town Nazim and Naib Town Nazim and a Union Nazim and Naib Union Nazim shall contest election, in their respective electoral wards as joint candidates: Provided that, on occurrence of a casual vacancy, a candidate for the office of a Nazim or Naib Nazim shall contest the election for such office in his individual capacity.
(2) Union Nazim and Naib Union Nazim securing the highest number of votes as joint candidates shall be declared elected.
(3) The Zila Nazim and Naib Zila Nazim, a Taluka Nazim and Naib Taluka Nazim, and a Town Nazim and Naib Town Nazim securing as join candidates more than fifty percent of votes shall be declared elected.
(4) In case a Zila Nazim or Naib Zila Nazim, or a Taluka Nazim, and Naib Taluka Nazim, or a Town Nazim and Naib Town Nazim do not secure more than fifty percent of the total votes of the members of the Union Councils in the respective District, Taluka or, as the case may be, town there shall be held a fresh election within one week of the first election for which the joint candidates securing the highest and the second highest number of votes in the first election shall be contestants, and the joint candidates securing the highest number of votes in the fresh elections shall be declared elected.
156. Election to vacant seats.--- (5) A vacancy of Zila Nazim, Naib Zila Nazim, Taluka Nazim or Town Nazim, Naib Taluka Nazim or Naib Town Nazim shall be filled through bye-election within, as far as practicable one hundred and twenty days of the occurrence of vacancy as provided in subsections (2) and (3) of section 148."
9. The perusal of section 148(3) of the Ordinance enumerates that the Electoral College for the election of Taluka Nazim, Town Nazim, Taluka Naib Nazim, Town Naib Nazim and reserved seats of women, peasants and workers, and minorities in the Taluka Council and Town Council shall be all the members of the Union Councils in the Taluka or as the case may be, town, including Union Nazims and Naib Union Nazims. In the end of section explanation is given as reproduced above. It is clarified in explanation that all the members shall be deemed to be the members of the electoral college who are notified as returned candidates.
10. In the instant case the returned candidate has secured 114 votes out of 224. As such he obtained more than 50% votes of all the members of the Taluka who were duly notified by Election Commission as returned candidates and members of electoral college.
11. Section 156(5) makes it clear that in case of vacancy of Zila Nazim, Naib Zila Nazim, Taluka or Town Nazim shall be filled through bye-election within as far as practicable 120 days of the occurrence of vacancy as provided in subsections (2) and (3) of section 148.
12. The learned counsel for the applicant has much emphasized upon subsection (4) of section 154 but the perusal of same also shows that the returned candidate has to secure more than 50% of the total votes of the members of the Union Council in the respective Districts, Taluka and total numbers of the Councils were those who were notified.
13. The aforesaid explanation has removed the ambiguity and made it clear that all the aforesaid members of the Union Council shall be deemed to be the member of electoral college. In this view of the matter, 7 vacant seats were not the part of the electoral college.
14. I have gone through the opinion of learned Secretary to Law Department Government of Sindh.
He appears to have lost sight of the explanation contained in section 148 of the Ordinance.
15. Hence the returned candidate obtained more than 50% votes M the members of electoral college, therefore, he has rightly been declared successful.
16. Application merits no consideration and stands dismissed with no order as to costs.