2013 PLP 1712 (CLC)

MAQBOOL BAQAR, J.

The petitioners in the above two petitions, one being a registered political party and the other being a contestant for National Assembly from NA No.239, Karachi West-cum-South, have through the instant petition, challenged the notification dated 22-3-2013, issued by the Election Commission of Pakistan, effecting delimitation of certain national and provincial assembly constituencies in Karachi.

2. The impugned notification has been issued in pursuance of various orders passed by the Hon'ble Supreme Court from time to time. The first of the above orders was passed in Suo Motu Case No.16 of 2011 titled WATTAN PARTY AND OTHERS v. FEDERATION OF PAKISTAN AND OTHERS, reported as PLD 2011 SC

997. The relevant portion of the order reads as follows:

"... to avoid political polarization and to break the cycle of ethnic strife and turf war, boundaries of administrative units like police stations, revenue estates, etc., ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as no go areas under their fearful influence. Subsequent thereto, on similar considerations, in view of relevant laws, delimitation of different constituencies has also to be undertaken with the same object and purpose, particularly to make Karachi, which is the hub of economic and commercial activities and also the face of Pakistan, a peaceful city in the near future. The Election Commission of Pakistan may also initiate the process on its own in this behalf."

3. By order dated 26-11-2012, passed in the above suo motu proceedings, the Hon'ble Supreme Court taking notice of non-compliance of the directions/observations, contained in the above judgment and reproduced herein above, directed the Secretary, Election Commission of Pakistan to appear before the Court on the next date in person and to explain as to why the above directions were not complied. On 28-11-2012 the Secretary, Election Commission of Pakistan, in compliance of the order dated 26-11-2012, appeared before the Hon'ble Supreme Court and conceded that neither Article 51(5) of the Constitution of Islamic Republic of Pakistan, 1973 nor section 7(2) of the Delimitation of Constituencies Act, 1974, are hurdles in the compliance of the Hon'ble Supreme Court's observations/directions and assured the Court that the task of delimitation of different constituencies in Karachi has been taken up by the Election Commission of Pakistan with the Government of Sindh and all efforts are underway to make substantial progress in that regard, so that the subject delimitation be completed within the shortest possible time, after following due procedure and taking on board all the stakeholders and that the compliance report be submitted before the Court.

4. It seems that in the meanwhile the petitioner joined the proceedings and filed two separate review petitions in the above case being Civil Review Petitions Nos.7 and 8 of 2013. However, on 25-2-2013, the learned counsel for the petitioner, after arguing the said two review petitions to some length, in view of an application, filed by the Election Commission of Pakistan, under Order XXXII of the Supreme Court Rules, 1980, being C.M.A. No.76-K of 2013, did not press the said two review petitions and the same were accordingly dismissed through an order of even date.

5. C.M.A. No.76-K of 2013, whereby the Election Commission of Pakistan has prayed for deferment of the Hon'ble Supreme Court's observations for undertaking delimitation in Karachi, till the time fresh census is conducted, was taken up for hearing on 27-2-2013. The grounds urged before the Hon'ble Supreme Court in favour of the deferment, were that in view of Article 51(3) of the Constitution, unless fresh census is carried out throughout the country, no exercise of delimitation can be undertaken by the Election Commission of Pakistan. Reference was also made to sections 7, 8 and 9 of the Delimitation of Constituencies Act, 1974 in order to urge the Hon'ble Supreme Court to allow deferment. However, the Secretary, Election Commission as well as the Commission's counsel conceded that neither the provisions of Article 51(3) and (5) of the Constitution nor any of the above said provisions of the Delimitation of Constituencies Act come in the way of the delimitation, as ordered, nor places any embargo or limit the jurisdiction, authority and power of the Commission to undertake the exercise of delimitation at any time. The Hon'ble Supreme Court in its order dated 27-2-2013, whilst recording the above in detail, also referred to section 10A of the Delimitation of Constituencies Act, 1974, which reads as follows:

"10A. Power of Commission to make amendment, alteration or modification in the final list of constituencies.

Notwithstanding anything contained in this Act, the Commission may, at any time, of its own motion, make such amendments, alterations or modifications in the final list of constituencies published under subsection (3) or in the areas included in a constituency, as it thinks necessary.

6. The Hon'ble Supreme Court then proceeded to hold as follows and dismissed the application:

"From the plain reading of above reproduced section and the other sections referred to earlier from the Act of 1974, it is amply clear that none of these provisions of law create any obstacle in implementation and compliance of the observations contained in sub-paragraph (h) (supra), by the Commission. Rather at the dint of section 10A of the Act of 1974, starting with non-obstante clause "notwithstanding", the Commission is fully empowered that it may at any time of its own motion, make such amendments, alterations or modifications in the final list of constituencies published under subsection (3) or in the areas included in a constituency as it thinks necessary, and for this purpose, there is no pre-condition to wait for holding of fresh census in the whole country."

7. As noted earlier, it was in pursuance of the judgment passed in Suo Motu Case No.16 of 2011 titled WATTAN PARTY AND OTHERS v. FEDERATION OF PAKISTAN AND OTHERS (supra) and the subsequent two orders dated 26-11-2012 and 28-11-2012 that the impugned notification has been issued.

8. Dr. Muhammad Farough Naseem, the learned counsel for the Petitioner, in C.P. No.D-1207 of 2013 during the course of arguments, challenged the impugned notification on two counts. Firstly, that the impugned notification is violative of the elementary principle of electoral laws that once the electoral process starts, no delimitation can be effected. He submitted that it was on 16-3-2013 that the National Assembly was dissolved and the final electoral roll was announced by the Election Commission of Pakistan on 17-3-2013, whereas the Sindh Assembly was dissolved on 19-3-2013. On 20-3-1013, the President of Pakistan and all the four Governors appointed 11-5-2013 the pole day for general elections, whereas the election schedule was announced by the Election Commission on 22-3-2013 and it was on the same day i.e. 22-3-2013 that the impugned notification was issued. The learned counsel submitted that in terms of section 20 of the Electoral Rolls Act, 1974, once a constituency has been called upon to elect its representative, there can be no revision or correction in the electoral rolls or the electoral area. He contended that after delimitation, generally and also in the present case wards, charges, circles and census blocks are demarcated, which, according to him, has necessarily required a change in the electoral rolls and, therefore, since in terms of section 20 of the Electoral Rolls Act, there can be no change in the electoral rolls once the electoral process is started, no delimitation can take place after the start of such electoral process. The learned counsel referred to the case of JOY JOSEPH AND OTHERS v. THE ELECTORAL REGISTRATION OFFICER AND ANOTHER, W.P. (C) No.28832 OF 2010 (D), where Karalla High Court was pleased to observe that the electoral rolls certainly have to be in accordance with boundaries of the wards.

9. There is no cavil to the proposition that there can be no change in the electoral rolls once the electoral rolls are finalised and are so notified/announced, inasmuch as the names, addresses and other relevant particulars of the listed voters, which are finalised, through a prescribed process and after providing opportunity to the elector to enrol themselves as voters, and to seek necessary amendments for correction of any error owing to changes in their addresses etc. certainly if any amendment in the list is allowed after the same has been finalised and so announced, would render the process unending and create room for manipulation and manoeuvring and would also make it impossible for the Election Commission, the political parties, the candidates, as well as the voters to proceed to hold the election and participate therein. However, the changes in the Wards, Charges, Circles and Census Blocks would not require any change with regard to the enrolled voters but would only require printing, distribution and arrangement of such rolls in a manner that the same may distinctly pertain to, and remain with the constituency and/or any sub-unit thereof where the voters enrolled therein are placed and, therefore, it would be imperative for the Election Commission to do so and shall not pose any difficulty either for any candidate and/or any political party or to any voter, at all, and thus it cannot be successfully pleaded that there cannot be any delimitation after finalisation of the electoral rolls. There is also no cavil to the proposition that the delimitation of a constituency has to be effected before the start of the election process. However, with regard to the contention that the election process commences either from the date of dissolution of the assemblies or from the day of the announcement of the date of general elections, it may be noted that the electioneering or the campaign for election neither starts from the date of dissolution of the assemblies nor from the day, the election date is announced. In fact even the selection of their respective candidates by the political parties is formally made after the election schedule is announced by the Election Commission, which in the present ca4e was so announced on 22-3-2013. Such schedule itself prescribed dates for issuance of public notice by the Returning Officer, the date of filing of the nomination papers, the date for scrutiny of the nomination papers and so on. In fact the tickets are formally awarded to the candidates by their political parties only after the nomination papers are submitted before the Returning Officers. The election campaigning, rallies and other activities, which normally are the essential part of election campaign commences after the nomination papers are filed and, therefore, the election process in the present context commences after the election schedule is announced by the Election Commission.

10. Indeed it is true that in the various judgments from the foreign jurisdiction, relied upon by Dr. Muhammad Farough Naseem, the learned counsel for the petitioner, in C.P. No.D-1207 of 2013, it has been observed that the election process commences from the time of announcement of the election date, however, such has been observed in the context of the jurisdiction and competence of the Court to entertain and decide certain controversies/questions, which in view of exclusive bar, placed by various provisions of the relevant laws, were found to be amenable exclusively before the Election Tribunal, constituted under the relevant provisions and in the peculiar facts and circumstances, very different from the present case. Thus (i) The judgment in the case of MATHAI K.V. v. STATE OF COOPERATIVE ELECTION COMMISSION AND OTHERS, 2007(2) KLJ 194, W.P. (C) NO.8708 OF 2007(J), it has been observed by the Karalla High Court that the process like delimitation of Wards has to be done before the decision to conduct the election. However, the said judgment is of no avail in the present case, as under challenge in the said case, before a learned Single Judge, was a notification issued for election to the Board of Directors of a Society, on the ground that although the by-laws of the Society specifically stipulated that election shall be on Ward basis, without delimitation of the Wards for which election was to be conducted by the General Body, which alone had the jurisdiction to do so and the incumbent Director Board adopted a resolution to conduct the elections and to request the Cooperative Election Board to appoint a Returning Officer with delimitation on the basis of which the election notification had been issued. It was argued before the Court that since in terms of clause 31(b) of the bye-laws of the Society, the election to the Board of Directions could only be on Ward basis and since the General Body of the Society, which was vested with the power of delimitation of Wards, has not done it, no election could be conducted before the General Body conducts such delimitation of Wards. But through the Resolution dated 1-3-2007, the Director Board itself decided to have seven Wards, delimitation of which was also done by the said Resolution, Exh.P-3. In accordance with such delimitation of Wards, the impugned election notification, Exh.P-4 was published. The learned Judge held that since clause 27(1)(a) vests the powers regarding conduct of elections to the Director Board of the Society on the general body of the Society. Delimitation of wards, being a very vital aspect of the election, in the absence of an independent statutory body to do, could only have been done by the general body and the Director Board in power could not have been entrusted with the same and that Exh.P-3, resolution was adopted only on 1-3-2007 long after Exh.R-4(a), which was a resolution passed on 27-1-2007 for conducting elections and required the Election Commissioner to appoint a Returning Officer that being so, Exh.P-3 resolution adopted after Exh.R-4(a) resolution is clearly an interference with the process of election, by the managing committee in power and therefore, Exh.P-4 issued on the basis of Exh.P-3 resolution is clearly vitiated. It was further held that when the election has to be on ward basis, the election to seats reserved for SC/ST and women as per section 28-A also should be on ward basis. In other words, for 9 members there should be 9 Wards and one each of the 9 wards should be reserved for SC/ST bodies where elections are on ward basis. Exh.P-4 does not mention the wards so reserved for SC/ST and women except that two members would be elected from constituencies reserved for SC/ST and women. This is clearly in violation of bye-laws 31(b). From Exh.P-4 it is also not clear as to whether all the voters together would elect the member from each ward or whether voters from each ward would select the member to represent their ward. (ii) In the case of DASHEMSH SEWA SOCIETY AND ANOTHER v. Lt. GOVERNOR OF DELHI AND OTHERS reported in 2012IVAD (Delhi) 174 W.P.(C) 4166 of 2011, on 5-10-2011 in a meeting, held between the Hon'ble Lt. Governor and a delegation SAD (Badal), Delhi regarding the conduct of election of Delhi Sikh Gurudwara Management Committee, two crucial decisions were taken, the first was to undertake the exercise of preparation of the fresh electoral rolls of Delhi Sikh Gurudwara Management Committee. The said decision to prepare the fresh electoral rolls was in fact taken even prior to the said meeting dated 15-10-2011, as according to the record, the Lt. Governor had granted approval for preparation of the fresh electoral rolls under Rule 32 of the Delhi Sikh Gurudwara Management Committee (Registration of Electors) Rules, 1973 (Rules) on 4-6-2010. The second decision was to undertake the delimitation of Wards, only thereafter the election of the Managing Committee were to be held. It was informed in the meeting that the preparation of the electoral rolls would be completed by 31-10-2011, thereafter the draft rolls would be published and claims and objections invited. The final publication of the electoral rolls was to be undertaken by 1-1-2012. The delimitation of Wards was estimated to take another 2-3 months. The Minutes recorded that the delimitation is required as the population has increased and there has also been shift in population. The date of election was not fixed in the meeting. It was informed that the same could be held sometime in the first week of May, 2012. For the purpose of registration of Sikh voters, the Hon'ble Lt. Governor desired holding of special camps with proper publicity, inter alia, in newspapers. However, Respondent-Authority somersaulted from their earlier decision, approving the preparation of fresh electoral rolls and carrying out the delimitation of the Wards before holding of elections to the Delhi Sikh Gurudwara Management Committee. It was found that contrary to the aforesaid decision taken in the meeting with the Lt. Governor, a short cut has been sought to be adopted by the Respondents. Instead of completing the process of preparing fresh electoral rolls, as provided under Rule 32 of the Rules, which mandatorily required the affixation of photographs, it was proposed that the fresh electoral rolls to the extent that they have been prepared, be merged with the existing electoral rolls prepared in the year 2006 - which do not have photographs, and the process be treated as undertaken under Rule 26 of the Rules, which talks about revision of the electoral rolls. It was held that there is nothing on record to suggest that the fresh process of preparation of the electoral rolls was undertaken in the right earnest with proper advertisement and public notice, including in the print media - particularly the Gurumukhi newspapers, and by holding full day camps over weekends. It was observed that it appears that even the electoral rolls of 2006 were not freshly prepared ones. They were mere revision of electoral rolls lastly prepared in the early eighties and held that it is clear that the decision to prepare fresh electoral rolls, post amendment of Rule 7 was a conscious decision taken by the Lt. Governor considering the fact that the existing one had become stale and did not have the photographs of the voters. It was further held that even when the revision of the electoral roll is undertaken under Rule 26, the same procedure, as prescribed under Rules 4 to 22 has to be followed, whereas the respondents were proposing to completely do away with the said procedure and short circuit the same by primarily proceeding on the basis of the electoral rolls revised in the year 2006 and that such mechanism does not even qualify as a revision under Rule 26 of the Rules, and is a novel procedure evolved by the respondents, dehors the rules. As regards the delimitation, it was observed that it is clear from the Minutes dated 5-10-2011 that in terms of section 6 of the aforesaid Act, the Director GE has accorded his approval for fresh delimitation. The reason for delimitation are also recorded in the Minutes dated 5-10-2011. The whole process seems to have been short circuited by deciding to hold the elections in February, 2012 even though, in the meeting held on 5-10-2011, the time limit for conduct of elections was fixed in the first week of May, 2012 and it is not disclosed on the record as to why there was a sudden change in the timeframe for holding the elections from May, 2012 to February, 2012; as to what was the tearing hurry for preponing the proposed date of election by three months. It was also noted that pertinently, the elections have not yet been notified, as the same are proposed to be notified only on 16-2-2012. It was in view of the foregoing that the learned Court ordered that the notification for conduct of elections, which was proposed to be issued on 16-2-2012 shall not be issued unless the process of preparation of the electoral rolls and delimitation is first undertaken. (iii) In the case of JALALUDDIN AHMED v. MATIU RAHMAN AND OTHERS, C.R. 78 of 1988, where the respondent challenged the setting up of a polling station for a ward outside the area of that particular ward, the learned Court, whilst observing that it is now settled that the term "election" embraces the entire process of election and not only the talking of poll and subsequent declaration of result, held that the alleged contravention of Rule-6 on which the challenge is based, is included within the term "election". It was further held that the jurisdiction of the Election Tribunal in the matter is exclusive and since the jurisdiction of the Civil Court was impliedly barred, the plaint was liable to be rejected. (iv) In the case of Om Parkash Tiwari and others v. The Election Commission, C.W.J.C. No.4029 of 2002, a learned Judge of the High Court of Patna, whilst disposing of several different petitions, whereby it was alleged that the nominations have been illegally rejected, names of the voters have not been included in the list or after publication of the final list, the names of the voters have been deleted from the electoral rolls, the list supplied by the Municipal Authorities shows the name of the petitioner, his proposer and seconder are not recorded in the electoral rolls of the said ward and list of the wrong ward has been supplied by the Municipal authorities, and that the disqualification clause has been wrongly applied. On behalf of the State and in opposition to the petition, it was argued that the language employed in the Article 243ZG, is identical to the language used in Article 329 of the Constitution of India and as the Supreme Court while interpreting Article 329 has made it clear that in the election matters, the High Court would have no jurisdiction to interfere, the Court should not interfere and leave the aggrieved party to the course of Election Petition, as provided under the concerned statute. It was also argued that the petitions were in fact causing hindrances in the smooth and proper functioning of the election and any interference by the Court would not be to sub-serve the cause of the election and sought disposal of the petition on the ground of jurisdiction. The learned Court whilst referring to several judgments of the Indian Supreme Court, where it was held that rejection or acceptance of a nomination paper is included in the term "election" and that the law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by involving the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded) and another after they have been completed by means of an election petition. Any matter, which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court and that once the process of election has started, any interference by the Court under Article 226 of the Constitution with the process of election on the ground of breach of statutory provisions in preparation of the voters list is not permissible in law. The learned Judge held that he has no hesitation in holding that the jurisdiction of the High Court under Article 226 is ousted at this stage looking to the nature of the complaints and the reliefs claimed in the petitions. (v) In the case of Nandkishore v. State of Maharashtra and others, Writ Petitions Nos.4923 and 5138 of 2006, the High Court of Bombay referred to the case of Election Commission of India v. Ashoke Kumar and others reported in MANU/SC/0544/2000: (2001)ILLJ601SC, where the Election Commissioner had issued directions by a notification directing the counting of votes by mixing of votes of all booths. The Hon'ble Court held that the term "election" as occurring in Article 329 has been held to mean and include the entire process from the issue of the Notification under section 14 of the Representation of the People Act, 1951. It was held that the Court should act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material. (vi) In the case of Sri Subrata Chatterjee, reported in AIR 1983 Calcutta 436, wherein a petition challenging the rejection of a nomination paper by the Returning Officer was challenged and stay of elections was sought, which elections were already in process and polling was to be held within a period of three days and the names of the candidates were published, a learned Single Judge of Calcutta High Court, whilst referring to Article 329(b) of the Constitution of India held that the provisions embodies in clear terms that election to either House of Parliament or to the House of the Legislature or the State shall not be allowed to be questioned before a Court except by way of election petition presented to such authority and in such manner as has been prescribed by the appropriate Legislature. This has been done clearly to prevent the challenge to holding of election to either Houses of Parliament or to either houses of Legislature.

11. Mr. G.N. Qureshi, the learned counsel for the petitioner in C.P. No.D-1212 of 2013 adopted the arguments of Dr. Muhammad Farough Naseem.

12. Although after Dr. Muhammad Farough Naseem has concluded his arguments, he has submitted that the only objection that he would urge this Court to consider in the present proceedings, is with regard to the date of issuance of the impugned notification. The learned counsel, however, during the course of his arguments, has also contended that the notification is also bad in law, as the same has been effected without issuing public notice. The learned counsel has submitted that even though in terms of section 10A of the Delimitation of Constituencies Act, 1974, the Election Commission has suo motu powers to effect the delimitation of constituencies, however, the provisions of section 10A are to be read along with the section 10 of the Act, which requires inviting objections through public notice, and submitted that section 10A is not independent of section 10 of the Act. The learned counsel further submitted that even in exercise of suo motu powers, the principles of natural justice are required to be followed. However, it may be noted that in the first place, as evident from the document, annexed to the memo of petition in C.P. No.1207 of 2013, and relied upon by the petitioner, at page 139 of the file, the Election Commission, in relation to the delimitation of constituencies in the city of Karachi, has in fact invited suggestions from the political parties, and as has been recorded in para-5 of the order dated 27-2-2013, passed by the Hon'ble Supreme Court in Suo Motu Case No.16 of 2011 that in pursuance of the earlier orders, passed by the Hon'ble Supreme Court with regard to the delimitation of the constituencies in the above proceedings, several meetings of the Commission were held at Karachi and Islamabad, which were attended, amongst others, by the representative of the different political parties. Furthermore, reports of the above proceedings have been repeatedly published in the print media and broadcasted through the electronic media at the relevant time and, therefore, it cannot be said that the petitioner was prevented from raising objections and/or submitting their proposals to the Commission with regard to the delimitation in question. In any event, since the Hon'ble Supreme Court in its order dated 27-2-2013, also referred to in the earlier part of this order, has, whilst analysing and interpreting section 10A of the Act, with reference to the other sections of the Act, held that none of these provisions of law create any obstacle in the implementation and compliance of the relevant observations contained in the judgment dated 6-10-2011. Rather at the dint of section 10A of the Act of 1974, starting with non-obstante clause "notwithstanding", the Commission is fully empowered that it may, at any time, of its own motion, (emphasis supplied) make such amendments, alterations or modifications in the final list of constituencies published under subsection (3) or in the areas included in a constituency as it thinks necessary. In any event, in case the petitioner felt that there is any room for interpretation or clarification of the above, it would have been appropriate for them to have approached the Hon'ble Supreme Court.

13. We are of the considered view that any interference in the election process at this stage will cause interruption in the process and delay the same. It is now well laid down that the High Courts can only interfere in the election matters if the interference is to sub-serve the election, election process and not to interrupt or interfere with the election or the election process. The petitioners, if permissible under the law, and if so advised, may either approach the Hon'ble Supreme Court and/or file an appeal before the Tribunal, constituted under section 57 of the Representation of the People Act, 1976.

14. The petitions along with the pending application stand disposed of in the foregoing terms. MH/A-70/K Order accordingly.