2014 PLP 1450 (CLC)

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.

The following prayer has been made in this petition:

"It is, therefore, respectfully prayed that this Hon'ble Court may please [sic] to declare the notification dated 28-10-2013 issued by respondent No.1 without incorporating the recommendations of petitioner to be illegal, unwarranted and made in excess of authority consequently the same may be set aside/modified and directions be issued to respondent No.1 to incorporate the union councils/adjusted the wards as per recommendations of the petitioner and others in the delimitation notification as suggested by the petitioner and others, with any other relief which may be appropriate in the circumstances of the case and cost of the proceedings throughout in the interest of justice."

2. The petitioner has impugned the Notification No.1-71/ 2010(Delt:)BLCEC/Vol-111/619-35, dated 28th October, 2013, issued by the respondent No.1, in respect of the delimitation of the wards of Local Council, District Pishin. After promulgation of Balochistan Local Government Act, 2010, ("the Act") an advertisement was published by the Deputy Commissioner/Delimitation Officer, Pishin, dated: 27th July, 2011, published in the Daily 'Jang', Quetta, wherein, proposals and complaints were invited in respect of delimitation of wards from the general public. The petitioner and other inhabitants of District Pishin, participated in the delimitation process and submitted their proposals in respect of delimitation of wards of local councils. The said process continued for over a year and a half and eventually, on 2nd November, 2012, Form-I, was compiled in respect of delimitation of each ward of local council of District Pishin.

3. The learned counsel for the petitioner stated that at the verge of forthcoming local government elections the said impugned Notification, dated 28-10-2013, was issued, which reflected that the proposals and objections of inhabitants of District Pishin, were not included/ accommodated. Being aggrieved, the petitioner had moved an application, before the respondent No.1 and reiterated their earlier proposals but no heed was paid, rather election schedule, dated 31st October, 2013 was announced by the Election Commission of Pakistan. The learned counsel contended that the government on its own was not authorized to prescribe the limits of proposed wards and union councils or local councils. Therefore, direction was sought to undo the impugned notification and prescribe the limits of wards and union councils according to the proposals earlier submitted by the petitioner.

4. The learned Assistant Advocate-General and Law Officer of the Provincial Election Commissioner strongly opposed the contention and stated that subsequent to the impugned notification of delimitation of wards, another Notification dated 31st October, 2013, pertaining to Election Schedule has also been issued by the Election Commission of Pakistan in compliance with the order dated 25th October, 2013, in C.P. No.77 of 2010, passed by the Hon'ble Supreme Court of Pakistan. They further stated that neither section 20 of the Electoral Rolls Act, 1974 nor the Delimitation of Constituencies Act, 1974, permits any change, alteration or amendment in the prescribed limits of constituencies/wards or union councils of any local council at this belated staged, and if it is done it will frustrate the whole election process. They therefore, sought the dismissal of the petition.

5. The perusal of record reflects that after the promulgation of the Local Government Act, 2010, the Government of Balochistan (respondent No.1) issued Notification No.5-1/2010(BLCEC) 15185-15302, dated 31st May, 2011. In exercise of powers conferred by section 141 of the Act, 2010, the Government of Balochistan promulgated the Balochistan Local Government (Delimitation) Rules, 2011 ("the Rules"); Rules 4, 5 and 6, whereof provide the procedure of delimitation, while Rule 7 provides for an appeal against any order of the Delimitation Officer. That vide Notification No.5-1/2010(BLCEC)/ 15483-15599, dated 15th June, 2011, the powers of the Delimitation Officer were delegated to all the Deputy Commissioners of respective Districts in Balochistan and the Divisional Commissioners were designated as the appellate authority against the order of the Delimitation Officer/Deputy Commissioner, coupled with schedule for Delimitation of wards stipulating the dates for formulation of preliminary proposals, publication of preliminary list of wards followed by inviting objection or suggestions, scrutiny of objections/suggestions, inquiry, hearing of parties and preparation of final list, publication of final list of recommendations, filing of appeals before the appellate authority, disposal of appeals by the appellate authority and forwarding of final list of recommendations to the Government. The process was stipulated to complete as on 30th August, 2011. The relevant provision of Rule 7, of Delimitation Rules, 2011, are reproduced here under:

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7. Appeals. (1) Any voter of the local council concerned aggrieved with the order passed under sub-rule (3) of Rule 6 may file appeal before the government or an officer authorized by the government in this behalf within seven days of such order. (4) The Government may, on its own motion or on representation made to it after hearing the parties if any, revise the final list of delimitation of a council by recording reasons thereof and notify the same for general information. (5) The Government may, at any time correct any clerical error or any erroneous insertion or omission in the final list." It transpires that the government had not only complied with the provisions of Local Government Act, 2010 and the Delimitation Rules, 2011 and the petitioner was fully on board during the process of delimitation.

6. Moreover, section 20 of Electoral Rolls Act, 1974 does not permit changes after the announcement of the election schedule. The provision provides:

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20. No correction to be made after constituency called upon to elect. No revision or correction of any electoral roll for an electoral area shall be made nor shall any order under section 19 be made in respect of any electoral roll at any time after the constituency of which such electoral area forms part has been called upon to elect its representative and before such representative has been elected."

7. Therefore, in view of the provisions of the enactments in relation to election laws mentioned above brings us to the conclusion that after announcement of election Schedule dated 31st October, 2013, no alteration, amendment or changing can be made in the limits of wards. Admittedly, the petitioner had also not filed an appeal against the final list of recommendations regarding delimitation of wards, which was required to be filed within seven days. Therefore, without availing of the said alternate remedy the petitioner cannot file a constitution petition before this court. The constitution petition before this court is only competent, when no other remedy is available to the aggrieved person but the petitioner had failed to avail the prescribed remedy of appeal within the prescribed time, therefore, the petition on the ground of laches as well as for not availing the alternate remedy provided under the prescribed rules, is dismissed accordingly. AG/14/Bal. Petition dismissed.