P L D 2016 Sindh 63 (PLP)

MUHAMMAD IQBAL KALHORO, J.

This is a bunch of petitions 185 in :number and have been filed in the backdrop of upcoming local bodies elections in Sindh. Although each petition contains voluminous facts, but under challenge are notifications issued by the Government of Sindh in pursuance of Section 10 (1) of the Sindh Local Government Act 2013 (2013 Act) notifying the number of Local Governments including District Councils and its Union Councils, Union Committees and Wards in Municipal Committees and Town Committees. Precisely the impact and effect of these notifications along with authority of the Provincial Government to issue them have been, inter alia, impugned here. The impact, as argued by the counsel of the petitioners respectively, has been a major change in formation of councils geographically in derogation to the principles of compactness, contiguity and territorial unity that are basics under the relevant law for carrying on any delimitation process. In connection with effect, the argument raised was around and about gerrymandering. To support the case on such premise, it was stated that the notifications were mala fide, aimed at manipulating the contours of the local areas in a manner to benefit those belonging to the present government. The local people stood disfranchised by such exercise as their local areas in some cases were included in the far-flung regions which were not contiguous with territorial unity. In other cases the areas were excluded from abutting parts of the object was to win the elections by hook or by crook. By referring to the relevant maps filed along with the petitions it was explained as to how the above stated principles of compactness, contiguity and territorial integrity and unity were violated and how the rural areas were joined with urban areas and vice-versa without maintaining population criteria as envisaged in Schedule I of 2013 Act.

2. After hearing all the counsel, we could note down that the controversy between the parties was two-fold. On the one hand it was stated that the Provincial Government was not competent to issue impugned notifications, and if at all, assuming that it had any authority to do so, the same was not exercised as per mandate of 2013 Act, hence, impugned notifications were illegal and void having no merits in the law. The other argument was that although the delimitation process for the upcoming elections was carried out by the Delimitation Officers, but they were basically the employees of Sindh Government and had not properly followed the procedure provided under the Delimitation of the Constituencies Act, 1974 (1974 Act). To highlight such limb of the arguments we would like to mention what Dr. Farogh Naseem, learned counsel for some of the petitioners stated during the course of hearing of the instant petitions. According to him, the whole exercise of delimitation was illegal and unlawful and in violation of Articles 37, 140-A, 187, 218(3), 219(d) and 222(d) of the Constitution; the Provincial Government was not empowered to issue notifications to delimit the councils as only the Election Commission of Pakistan (the Commission) was vested with such authority; that Section 10 of 2013 Act was in conflict with the relevant provisions of the Constitution regulating conduct of elections, therefore, it should be read down; this Court had already decided the issue in hand in the case of MQM and others v. Province of Sindh and others reported in 2014 CLC 335 when similar notifications were issued by the Government of Sindh and delimitation was carried out by it; that those notifications were annulled and declared ultra vires of the Constitution. He also added that this Court had made certain recommendations for holding the Local Bodies Elections in case of MQM supra but nothing materialized; that the said decision of this Court was challenged before the Hon'ble Supreme Court by the Government of Sindh in Civil Appeals (PLD 2014 SC 531) but all those appeals were dismissed and recommendations of this court vis-a-vis the mode and mechanism for holding the Local Bodies Elections were endorsed; that nothing was done by the Provincial Government to streamline the relevant laws accordingly in view of such recommendations and instead of rectifying the mistakes highlighted by the Superior Courts on the issue, again the process of delimitations of councils was replicated in the same manner and with the same equations that were struck down earlier by this Court and by the Apex Court. Dilating upon the above features of his case, he not only read out a number of excerpts from the decision of this court in the MQM's case, but also referred to several paras of the decision of the Supreme Court in the above case. In order to compare the scheme of the Act 2013, with the constitutional arrangement on the point and to highlight incongruity between the two, he took us to Sections 8, 10, 13 of the Act 2013 and the relevant Articles of the Constitution referred to above. He also added that the notifications impugned in the instant petitions and amendments brought in the 2013 Act through Sindh Local Government (Amendment) Act, 2015 were not in conformity with the benchmarks and guidelines given by the Supreme Court on the issue in the MQM's case; that before so notifying the areas through the impugned notifications, public objections were not invited from the local residents as required by the 2013 Act, therefore the very notifications were not even in conformity with the law and were against mandate under which the Executive Authority acted to notify delimitation of constituencies or declaring an area to be either an Urban or Rural.

3. Mr. Farogh Naseem further argued that the Constitution amply provided that anything and everything concerning with the local government elections had to be done by the Commission and not by the Provincial Government; that the provisions of 2013 Act particularly Section 10 empowering the Provincial Government to delimit an area were ultra vires to the Constitution whereby only the Commission could conduct the elections, and since delimitation was essential part of the election, it was to be done by the Commission alone; that when any law was found to be in derogation of the constitutional provisions, the Court had the powers to strike it down and issue directions to the Government to make it in accordance with the mandate of the Constitution. He also referred to Ordinance No.VIII of 2014 promulgated on 14.10.2014 whereby certain amendments were brought in 1974 Act and Section 3A was introduced therein, which empowers the Commission to delimit the constituencies in local government elections as well and stated that the delimitation of constituencies could only be done under the Act and rules made thereunder. Learned counsel also referred to PLD 1958 SC 104 and PLD 2012 SC 681, PLD 1958 SC 104, PLD 2014 Lahore 221, 1994 SCMR 1299. PLD 2008 SC 779, PLD 2009 SC 644, 2014 MLD 561, PLD 1993 SC 473, 2003 YLR 2449, PLD 1986 SC 35 and 2002 SCMR 1747 in support of his arguments.

4. Senior counsel Mr. Jhamat Jethanand representing some of the petitioners also assisted this Court on the issue and stated that in the aftermath of amendments in 1974 Act the rules were framed on 1.1.2015 wherein the entire procedure qua delimitation, and which authority was competent to carry on such exercise were provided. Therein appeared no role of the Provincial Government to issue notification in that regard and only the Delimiting Officer appointed by the Commission was competent to declare delimitation of the constituencies. He further added that while doing so, the Delimiting Officer, however, had to keep in mind the criterion of compactness, contiguity and territorial unity of the areas in question as provided under the law so that any manipulation in the election process could be checked in advance. Responding to a Court query, he admitted that power to categorize an area to be either rural or urban vested in the Provincial Government and not with the Commission; however he still maintained that insofar as elections of local government were concerned only the Delimiting Officer had the authority to separate from or blend together the regions of the rural areas into urban or vice versa to delimit a particular constituency. To explain his point he read out sections 8, 9, 10, 11 and 13 of the 2013 Act. Lastly he pointed out that although a Deh could not be divided for the purpose of elections but the Provincial Government had done so with mala fide intentions in order to win the elections at every cost.

5. Mr. Farooq H. Naek, learned advocate argued the case on behalf of the Province of Sindh. He raised a preliminary objections to the maintainability of all these petitions by referring to Article 225 of the Constitution and stated that since in all these petitions the questions regarding delimitations had been agitated, which was the integral and main part of any elections, jurisdiction of this court under Article 199 of the Constitution could not be invoked as all disputes relating to the elections were to be brought before the Election Tribunals for adjudication. He further added that Section 10 of 1974 Act provided adequate and efficacious remedy to the petitioners to challenge delimitation of a given constituency before the Commission within 15 days of the order and in presence of such remedy the instant petitions could not be entertained. Regarding the argument of gerrymandering, he explained that before 2013, the situation was altogether different as at that time the delimitations of the constituencies were carried out by the Provincial Government that were challenged and set aside by this Court and subsequently the order of this Court was maintained by the Honourable Supreme Court. But, then in the light of guidelines given by the Apex Court in MQM's case, he submitted that necessary amendments were introduced in 1974 Act and 2013 Act and this time the Commission had been tasked to hold elections of local government in Sindh and the entire delimitation process had been carried out by it as required under 1974 Act and 2013 Act. He in this connection referred to several sections of 1974 Act besides quoting section 31A of the 2013 Act. He next contended that there was no cavil to the fact that the Commission under the Constitution and the relevant laws was mandated to hold elections; and in line with such mandate it was undertaking the whole exercise in pursuance of which schedule of the election had already been announced, therefore, the entire process could not be derailed on the basis of some interlocutory orders passed by the Delimitation Officers because even after the elections, a losing candidate could challenge the elections on the ground of improper delimitation in the constituency prejudicial to his right of representation. He also read out many excerpts from the decision of the MQM's case decided by the Supreme Court to show that elections process started with a preliminary report of delimitation published in the official gazette and not from announcement of the election schedule. In support of his arguments lie also relied upon cases reported in PLD 2014 SC 686 and 2015 SCMR 233.

7. Mr. Mukesh Kumar learned Additional Advocate General adopted the arguments of Mr. Farooq H. Naek, advocate and to further elaborate the point that once the process of elections got initiated then merely on some complaints the whole process could not be blocked. He relied upon cases reported in 1996 (6) SCC 303 and 2009 (5) SCC 404, which are from Indian jurisdiction. He further added that provincial government had not delimited the constituencies but the exercise was done by Delimitation Officers appointed by the Election Commission and only after the order under Section 3A of 1974 Act, the impugned notifications had been issued.

8. Mr. Ainuddin Khan learned DAG also adopted the arguments of Mr. Farooq H. Naek and referred to notifications pertaining to the process of elections.

9. We have considered the arguments of the parties and perused the relevant law as well as the case laws cited at the bar. The dispute is mainly, as noted above, over the delimitation process and the validity of the notifications issued by the Sindh Government in exercise of the powers conferred under section 10(1) of 2013 Act amended by the Sindh Local Government (Amendment) Act, 2015 notifying the number of Local Governments including District Councils and its Union Councils, Union Committees and Wards in Municipal Committees and Town Committees. All the contesting parties in these petitions are unanimous over the point that it is the Commission, which has to undertake the process of holding elections in terms of Article 140A(2) of the Constitution which mandates that "Elections to the local governments shall be held by the Election commission of Pakistan". Article 219(d) of the Constitution speaks of the duties of the Election Commissioner that he shall be charged with "the holding of general elections to the National Assembly, Provincial Assemblies and the local governments". Regarding obligations of the Commission towards elections to make it just, fair and transparent, it is provided in Article 218 (3) that "It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against". The expression "to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against" denotes importance the legislature attaches to transparency and fairness of the election, the reason is obvious, that is to enhance public confidence in the whole process and to make it more permeating so that a wide range of people shall involve themselves in decision making process concerning their lives and to get maximum benefit out of it. The corrupt practices, which can wreak havoc qua the results of the elections and can have far-reaching adversarial effects on the very process of election, are bound to raise questions over the eligibility of the returned candidates. Thus deriding the very purpose of the elections, that is to transfer power at grassroots level to the people so that they can take appropriate and corresponding measures for their uplift. Therefore, it is imperative for the Commission, as per its mandate under the Constitution to devise and supervise every step till the elections are finally held. In the given context its role as a neutral empire assumes importance that has to be discharged by it independently. Any sitting government contesting the elections is always to be treated as a party at par with other vying candidates. To conduct elections with honesty, justness and fairness, it becomes incumbent upon the Commission to also decide elections related issues occurring either before or after the elections in a transparent manner and in according with law. When the Commission is tasked to guard against the corrupt practices, it entails that not only it shall take over the charge of all the affairs relating to the election but it has to watch over any maneuvering, in whatever shape and nature, in the delimitation process. Under the law the Commission can take note of and undo any notification by the Government notifying certain areas, which are urban, as rural or vice versa, if it is done to gain some advantage in the elections. It can certainly make necessary amendments in the constituencies as provided in 1974 Act to avoid imbalance in population ratio and reverse the new changes made by the government to gain edge over the opponents in the elections. We have observed that the Sindh Government in a number of constituencies has made some changes; either by including the already notified rural areas into urban or vice versa or excluding the certain areas from the place of their origin and placing them into the regions far away from their original place in disregard to the principles of contiguity, closeness and homogeneity. In some cases union councils have been divided in a way that a village has been separated into two different union councils or union council has been spread in a way to include the areas across the river, and dehs, which are separated from each other, have been blended together in one Union council. Learned counsel for the petitioners pointed out that when with these allegations the petitioners went before the Delimitation Authorities for redressal of their grievances, their pleas were turned down through non-speaking orders (which are impugned here) in violation of relevant laws and more specifically of Section 24A of the General Clauses Act, whereby every Authority has to justify its decision through reasons. It is quite obvious from the hitherto discussion that the primary function of holding the local government election in the province is upon the Commission. It has to ensure that the process of elections shall be completed in a manner free from doubt of contriving and maneuvering in the delimitations, which must be carried on in accordance with the principles of delimitation as set out in sections 10(3) and 12 of 2013 Act, in addition to Section 9 of the 1974 Act. The petitioners have agitated the delimitation process to be wrong and in violation of the principles of contiguity, closeness and homogeneity by relying on maps of the constituencies showing areas carved out of the rural areas and merged into urban areas or vice versa and in some cases many union councils containing contiguous areas have been disengaged from each other and incongruous areas have been included in one union council. In our view the Commission has failed to assert its role, power and responsibility of being neutral umpire in the whole process and correct the wrongs by resorting to Section 10A of 1974 whereby it can suo motu take notice of all these irregularities highlighted herein above and correct the same. It is noteworthy that even the directions of the Honorable Supreme Court given in the case of Province of Sindh v. M.Q.M. and others (PLD 2014 SC 531) in para No.79, which for ready reference are reproduced herein under, have not been completely heeded in letter and spirit while delimitating the constituencies. "

79. For what has been discussed above, while dismissing the appeals/petitions filed by the Government of Sindh, we are persuaded to direct the Federal Government to make necessary enactments to empower the Election Commission of Pakistan to carry out the delimitation of constituencies of local governments. The Government of Sindh is also directed to make necessary corresponding amendments in the Sindh Local Government Act, 2013. These are the detailed reasons for our short order dated 20.3.2014 which is reproduced hereinbelow:- "We have heard learned counsel for the appellants, for the respondents, learned Advocate General Sindh, learned Attorney General for Pakistan and learned amici curiae. For reasons to be recorded later in the detailed judgment, we hold, declare and direct as under:- (i) that the power to hold elections of the Local Government stands vested in the Election Commission of Pakistan in terms of Article 140A of the Constitution of Islamic Republic of Pakistan. The Election Commission of Pakistan has been mandated to "organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against" (Article 218(3) of the Constitution); (ii) that we uphold para 60(e) of the judgment of the Sindh High Court dated 26.12.2013; (iii) that since the delimitation of constituencies of the Local Government is part of the process of organizing and holding elections honestly, justly and fairly which is the Constitutional mandate of the Election Commission of Pakistan, the power to carry out such delimitation should vest with the Election Commission of Pakistan; (iv) that as the holding of election of Local Government has been delayed for more than nine years, which is violative of the Constitutional command, we are persuaded to direct the Governments, Federal and Provincial (of Sindh) to carry out appropriate amendments/ legislation to empower the Election Commission of Pakistan to initiate and carry out the process of delimitation of constituencies for the Local Government Elections. This exercise should be completed within a period of five months from today and the Election Commission of Pakistan shall thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/ amendments in laws in terms of this order. The Election Commission of Pakistan shall further ensure that the announcement of election schedule and the process of holding it is complete by or before 15th of November, 2014. (v) The cases stands disposed of in terms noted above. (underlined by us for emphasis) Any process meant for people, like the elections, which does not envisage speedy dispute resolution in accordance with law is bound to bring dismay and disagreement among the masses. We have been informed by Mr. Farooq H. Naek that after the decision of the Apex Court in MQM's case the amendments have been made in Section 3 of 1974 by introducing section 3A by virtue of which the power to delimit the constituencies (which was earlier limited to the seats of National and Provincial Assemblies) for the purpose of local elections has been conferred upon the Commission. That power had to be effectively used to check any gerrymandering was, however, the contention of Mr. Farogh Naseem. According to him if the constituencies are bifurcated in the manner, which has caused wide-spread unrest and resentment in the society, and if those complaints have not been attended to and decided by the Commission in accordance with law, it would be indicative of an ineffectual approach towards the election process by it. An argument was made before us by Mr. Farooq H. Naek that after the directions of the Honourable Supreme Court, the changes have been made in the law and since the whole delimitation process has been carried out by the Commission and thereafter due procedure of law has been followed to decide the objections of the petitioners over the format of the constituencies, the situation cannot be equated with the one prevailing in 2013 when delimitations were effectuated by the Provincial Government and set at naught by this Court. To a Court's query that as to how the exercise of delimitation could be termed fair and transparent and in accordance with the principles laid down in Sections 10(3) and 12 of 2013 Act coupled with Section 9 of the 1974 Act, when apparently there appeared dislocation of the many areas in different constituencies from their original place and the misbalance in the census blocks to the disadvantage of local people. Mr. Farooq H. Naek replied that these questions could not be taken up by this Court while sitting on the Constitutional jurisdiction for the reasons (i) they were factual in nature, (ii) they were adjudicated upon by the Delimitation hierarchy after considering objections of the parties concerned and (iii) they were interlocutory in substance and nature which could be agitated before the Elections Tribunal after the election was over. We however do not concur with such view. In innumerable petitions before us there was nothing on record to show that due hearing i.e. inviting objections in terms of sections 8, 10, 13 and 14 of 2013 Act was afforded to the petitioners. Even in some cases it was found that the decisions of the Delimitation Officers, whose orders were challenged in appeals before Delimitation Authority, were maintained on the basis of their consent recorded during the hearing. In our view it is a gross disregard to the provisions of fair trial encapsulated in Article 10-A of the Constitution that an appellate Authority should base its decision merely on the consent of the officer whose order is impugned before it without considering the contentious issues. This Court therefore cannot remain oblivious to what is happening in the delimitation process when it is challenged under Article 199 of the Constitution on the grounds stated above and can look into the matters, inter alia, where it is apparent that a person performing functions either in connection with the affairs of the Federation or a Province has failed to do anything which he is required under the 1aw to do. The Commission, as noted above, under the Constitution is mandated and tasked with the holding of elections comprising many stages starting from issuing schedule of election and culminating in notifying the returned candidate or in case of some dispute till their proper and final adjudication. That in our view would primarily mean and would be so read that any dispute, so long as it concerns the elections, arising either before or after it, has to be taken up and decided by the Commission first strictly in according to law. Such powers of the Commission are manifest in section 10 of 1974 Act, and in terms of section 10A, the Commission may, at any time, on its own motion, make such amendments, alterations or modifications in the final list of constituencies published under sub-section (3) or in the areas included in a constituency, as it thinks necessary. It hardly needs to emphasize here that such power speaks of a situation where though no complaint has been received regarding any gerrymandering in the election process but there is a witnessed dissatisfaction and disenchantment among the people of the area either on the delimitation or on the process whereby the local areas are included or excluded out of their declared places; or on the maneuvering in census blocks to offset the demographic balance to the peril of one party and to the advantage of another. And more so when it is apparent to the Commission that the demarcation was carried out without inviting objections of the residents and without hearing their view-points on the subject as required by the law, it becomes all the more compulsory for the Commission to wield its power and authority in terms of Section 10A of 1974 Act to correct the wrongs. The fact that the local residents are the main party in the delimitation process, as they would be the most affected people in either way in case of any change in the constituency they reside has been accepted by the law itself, for this is the reason the law stipulates that before any such exercise, the objections and suggestions of public be invited. Since the on-going discussion is centered on the power of the Commission under Sections 10 and, 10A of 1974 Act, for ready reference their reproduction hereunder would not be irrelevant. Section

10. Reports of Commission and list of constituencies. (1) For the purpose of delimiting constituencies, the Commission may receive and consider representations, hold inquires, summon witnesses and record evidence, and shall prepare and publish in the Official Gazette a preliminary report and list of specifying the areas proposed to be included in each constituency. (2) Any person entitled to vote at an election to the National Assembly, a Provincial Assembly or a Local Counsel may, within fifteen days of the publication of the report under subsection (1), make a representation to the Commission in respect of the delimitation of constituencies. (3) The Commission shall, after hearing and considering the representations, if any, received by it, make such amendments, alterations or modifications, in the preliminary list published under sub-section (1) as it thinks fit or necessary, and shall publish in the Official Gazette the final report and list of constituencies showing the areas included in each constituency. Section 10-A. 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 sub-section (3) or in the areas included in a constituency, as it thinks necessary. Section 10 ibid exhaustively describes the procedure to be followed for the purpose of delimiting the constituencies. The Commission may receive and consider representation, hold inquiries, summon witnesses and record evidence, and publish a preliminary report first and then within 15 days if any representation is made to it against such preliminary report, shall alter, or modify it and then publish the final report in the official gazette. However, even that final report and the areas included in a constituency are subject to alterations, amendments and modifications to be made by the Commission under section 10A of 1974 Act if it thinks necessary. There appears no cavil to the proposition that the dispute over delimitation of a constituency or joining rural areas with urban or vice versa directly relates to holding of transparent elections, the purpose of which is to empower the people at grass-root level so that they could take care of their, inter alia, civic needs to their satisfaction. When there is a wide-spread disenchantment (as is apparent from these petitions filed from all over the areas where schedule for elections for the first phase has been announced) among the people over the process of delimitation, this Court under, Article 199 of the Constitution can issue appropriate directions to the Commission to take note of these complaints and redress them in accordance with law. We are of the view that objection of Mr. Farooq H. Naek to the maintainability of all the petitions, in the circumstances, is without any substance and is therefore rejected.

10. We have noted at least in two petitions (CPs.D.Nos. 5521 and 5522/2015 at page 29) some guide lines regarding what should be the criterion for delimitation of the constituencies are available. Finding them substantial, practical and worth following to achieve the above stated objects of maintaining transparency in the elections and eliminating gerrymandering, we like to reproduce it for ready reference. Guidelines for Delimitation of Constituencies As per newly enacted Sindh Local Government Act, 2013, the Government shall prescribe the procedure for delimitation of the Local areas for establishment of Union Committees, Union Council, Town Committees, Municipal Committees, Municipal Corporations and Metropolitan Corporation. CRITERIA FOR DELIMITATION (1) The area should be as far as possible compact, contiguous and territorial unity. (2) Population. (3) Boundaries of Local Councils should be as far as possible not cross the revenue unit viz. Deh. Tapa, Circle, Taluka or District. (4) There will be as far as possible minimum changes in the present set up PROCEDURE OF DELIMITION (1) The Deputy Commissioner concerned has been appointed as Delimitation Officer for various categories of Local Councils. (2) The Delimitation Officer shall prepare preliminary proposals keeping in view the following :- (i) Objections shall be invited. (ii) For the purpose of election, a local area shall be divided into electoral units keeping in view the number of seats on the council and the population of local area. (iii) Delimit a local area into multi-member electoral units. (iv) The electoral units within the area shall be delimited having regard to the territorial unity and as far as practicable, to distribution of population and public convenience. (v) In urban areas wards have been declared Union Committees and as far as possible these may be kept intact as per practice of 13.08.2001. (vi) In rural areas as far as possible delimitation of present Union Councils may not be disturbed. (vii) The Delimitation Officers can seek assistance in the delimitation work from the Assistant Commissioners, Mukhtiarkars and other relevant officers/officials in the district. (viii) The tribunals will consider the representations and hearing those who wish to be heard, make such amendments, alterations or modifications in the preliminary list so published. (ix) After disposal of all representations, the Election Commission of Pakistan shall arrange to have the final list of electoral unit published in the Official Gazette or in case of urgency in such manner as it deems fit. It is quite clear that this policy is in synchronization with the principles enumerated in Sections 10(3) and 12 of 2013 Act as well as Section 9 of the 1974 Act, however it is also obvious that to the extent its object and intention in the present process of delimitation are concerned, these guidelines have not been adhered to substantively to avoid confusion. the principles of compactness, contiguity, territorial unit, homogeneity and population ratio (Schedule-I of 2013 Act) have to be followed. These fundamentals if strictly complied with and resorted to can best serve the grievances of the people timely, which have been raised here. Since serious allegations of manipulation in the process of delimitations have been leveled and we have seen that in many cases the above principles have been totally ignored. The chances of gerrymandering as alleged by the petitioners cannot be altogether ruled out. However, we restrain ourselves from passing any authoritative comment on it lest it may prejudice the case of either party before the Commission to where we have decided to refer the matter considering it duly mandated under the Constitution and Sections 10 and 10A of the 1974 Act, to correct all the irregularities relating to the delimitation and decide the objections of the petitioners in the terms stated in the last part of para No. 11 below. This we have done keeping in view the constraints of delving into factual aspects the petitions carry and knowing that when the remedy is provided in the law it should be first availed to as a rule of propriety. It is in addition to the realization that the elections are around the corner which are being held under the instructions of the Honorable Supreme Court.

11. We however would like to make it clear that the power of the Government to issue notifications in terms of section 10(1) of 2013 Act is not amenable to any question and such notifications cannot be declared ultra vires of the Constitution or in violation of any directions given by the Honourable Supreme Court in MQM's Case quoted supra. In this regard we do not agree with the contention of Mr. Farogh Naseem that the Government has no power to issue such notifications and it is entirely the job of the Commission to not only notify the number of Union Councils and Union Committees etc. but to demarcate the constituencies as well. We are of the view that the process of determining the number of Union Councils, Union Committees and Wards in Municipal Committees and Town Committees in pursuance of section 10 of the 2013 Act cannot be equated with the powers of the Commission to delimit the constituencies under Section 3A of 1974 Act nor is it synonymous with delimitation process. The delimitation of the constituencies would only be carried out once the Government declares the areas as above. The Commission under no law is empowered to determine Union Councils, Union Committees and Wards in Municipal Committee before holding the elections nor such exercise can be bracketed as part of elections to be carried out by the Commission. Section 31A of 2013 Act further elaborates this position in the words that "For the purpose of Local Government Elections, the Election Commission shall delimit Councils, Committees and Wards in the manner as provided in this Act". This clearly demonstrates that so long as marking out any Union Council or Union Committees etc. is concerned, it is the prerogative of the Provincial Government to do so under the law and only after an area is so categorized, the delimitation will start. While examining this question from its logistical aspect, we think it would also not be feasible for the Commission to determine the number of Union Councils etc. in the whole country without the support of the Federal or Provincial Government concerned. Precisely this appears to be the reason why the Commission in terms of section 6 of 1974 Act can require any person or authority to perform such functions or render such assistance as it may direct and in this connection all executive authorities of Federal Government and each Provincial Government are required to assist the Commission in the performance of its functions and for this purpose the Commission is also empowered to issue such direction as it may consider necessary. Seen in this backdrop also, we are of a considered view that the task of determining the number of Union Council etc. and demarcation of the councils is the duty of the Provincial Government that is rendered in terms of Section 6 of 1974 Act. In the circumstances, there appears no bar over the authority of the Government to notify the areas as Union Councils etc. for delimitation purpose. For further fortification of this view section 13 of 2013 Act can be referred to. It reads "Declaration of urban and rural areas (1) Government may, after inviting objections from the residents of an area and hearing those from amongst them who wish to be heard, declare by notification such area, to be an urban area or rural area, as the case may be. (2) For the purposes of the Act, all areas which are urban areas or rural areas, as the case may be, at the time of commencement of the Act shall be deemed to be urban areas or rural areas, as the case may be". It however goes without saying that the Government shall follow the principles enumerated in sections 10 (3) and 12 of 2013 Act coupled with tenets set out in section 9 of the 1974 Act while so determining the number of Union Councils and declaring the areas to be an Urban or Rural. Nonetheless, if the Government, while acting so does not adhere to such standards meaningfully, it could be made a ground raising objection over the way such exercise was undertaken but cannot be made a basis to annul the impugned notifications as null and void for want of authority. As the argument has been raised before us that section 10 of 2013 Act is ultra vires of the Constitution and needs to be read down, we are reproducing it herein below for ease of reference. Section

10. Delimitation of Union Council, Union Committee and Ward.-- (1) Government shall, by notification in the Official Gazette, determine the number of Union Councils, Union Committees and Wards in Municipal Committees and Town Committees in accordance with the First Schedule. (2) After demarcation of the Councils under Section 8 and determination of the number of Union Councils, Union Committees and Wards under sub-section (1), the Election Commission shall delimit the Union Councils, Union Committees and Wards. (3) As far as possible - (a) the area of a Union Council, Union Committee or a Ward, as the case may be, shall be a territorial unity; (b) the population of the Union Councils, Union Committees or Wards, as the case may be, in a District shall be uniform; (c) the boundaries of a Union Council, Union Committee or a Ward shall not cross the limits of a revenue Taluka or as the case may be, a Metropolitan Corporation, District Municipal Corporation, Municipal Corporation, Municipal Committee and Town Committee; (d) the principles laid down in the Delimitation of Constituencies Act, 1974 or any other law, for the time being in force, may be adhered to. (4) A Union Council or Union Committee shall consist of our Wards for general members and shall be an area consisting of one or more revenue dehs or wards, or one or more census blocks, as determined for the purpose of the last preceding census, or a census block or are venue deh, delimited and notified as such by the Election Commission. (5) The Ward in an urban or rural area shall, as far as possible, consist of a census block or adjoining census blocks as determined for the purpose of the last preceding census or a census block or blocks and are venue deh or dehs delimited and notified as such by the Election Commission. It is apparent that in pursuance of subsection (2) ibid the demarcation of the Councils (as per requirement of section 8 of 2013 Act) and determination of numbers of Union Councils etc. according to subsection (1) ibid will take place first which shall then pave the way for the procedure of delimitation to be carried on by the Commission. The expression "demarcation" appearing in section 10(2) of 2013 Act has nexus with the object under Section 8 whereby the Government can, by notification in the official gazette categorize, a district into urban area and rural area and can further, by a notification, declare a local area consisting of (a) Urban area in a District, as a Metropolitan Corporation, District Municipal Corporation, Municipal Corporation, Municipal Committee, Town Committee, [Union Committee and Ward], (b) rural area in a District as a District Council and Union Council. The Government can further, by notification after inviting public objections and suggestions, alter the limits of local area and declare that any area shall cease to be a Union Council, District Council, Municipal Committee, Corporation, Town Committee, Union Committee and Ward; Obviously, it is not to be construed or mixed with the proposition of delimitation of the constituencies to be undertaken under 1974 Act, so long as the scheme of 2013 Act is concerned. Under the circumstances we are not hesitant to hold that initiation of the process of delimitation of the constituencies for local government elections through notifications issued by the Provincial Government under Section 10(1) of Sindh Local Government Act, 2013 (2) and 10(3) was within the confines of 2013 Act. However, as discussed above, while carrying out the process, under Sections 10(2) and 10(3) the functionaries of the Commission did not adhere to the guidelines with regard to the territorial unity, and did not appreciate distinction between urban and rural areas in several constituencies. Apparently the whole process appears to have been done in an arbitrary manner and its purpose could not be but gerrymandering. As the election schedule has been announced, in order to correct only those irregularities that are floating on record and are in violation of above stated principles of territorial unity etc., without disturbing the polling schedule, we deem it appropriate that at this stage only such alterations and modifications be allowed in those constituencies which the Commission can carry out expeditiously in exercise of its powers conferred under Section 10A of 1974 Act by only looking at the existing boundaries of a disputed constituency. While conducting such exercise, it shall take into consideration only the following:- (i) By looking at the impugned delimitation of a Council, if it appears that the territorial unity was not maintained then the limits of such Council shall be so adjusted in order to bring it in consonance with the established criteria of delimitation as provided in Section 10(3) of the Sindh Local Government Act, 2013. (ii) The areas of a Council which were rural at the time when the Hon'ble Supreme Court passed short order dated 20.03.2014 in the case of Province of Sindh v. MQM but were subsequently annexed with any Council of an urban area or vice versa, through the process of impugned delimitation the same shall be undone and fresh delimitation shall be carried out. (iii) Fresh delimitation of the Councils shall be carried out only in the two situations that are narrated in sub-paragraphs (i) and (ii) above within a period of five days from today i.e. up to 23.09.2015. (iv) Only such petitioners shall seek fresh delimitation within three days from today whose grievance falls within the ambit of sub-paragraphs (i) and (ii) only. As to any other kind of grievances to the delimitation of the constituencies, the aggrieved persons may seek remedy after the elections, in accordance with law. (v) No fresh nominations to stand in elections can be allowed in any Council, boundaries of which are revised by the Election Commission pursuant to this order. As the process of the elections of the Local Government is to be completed on the schedules already announced in terms of the judgment of the Supreme Court rendered in the case of Province of Sindh v. MQM, the election schedules in no circumstances shall be disturbed on the basis of this order.

12. Before parting company with this order, we would like to state and that is based on our experience of dealing with these matters exhaustively that the process as contemplated under Sections 8 and 13 of 2013 Act shall commence at least 18 months before the schedule of local government elections is announced. That shall follow the exercise of determining the number of Union Councils, Union Committees etc. and demarcation of the Councils in terms of section 10 of 2013 Act. The delimitation process by the Commission shall start at least one year before the election- schedule. In the present context the delimitation process means and includes (but is not restricted to) preparing a preliminary report and making such amendments, alterations or modifications in the said report as are deemed fit and necessary after hearing and considering the representations, if any, and publishing in the official gazette the final report and list of constituencies under section 10 of 1974 Act and passing an order under section 3A if 1974 Act. Although the commission has power to make, at any time, on its own motion such amendments, alteration and modification in the final list of the constituencies in terms of section 10A of 1974 Act, but if such exercise is taken and completed at the most 6 months before the election-schedule, it would make a substantive difference insofar as the present grievances of the petitioners are concerned and would make things pertaining to election process much easier to deal with speedily than they are being done presently.

13. In the above terms all these petitions stand disposed of and these are the reasons for our short order dated 18.09.2015. SL/H-21/Sindh Order accordingly.