2016 PLP 75 (YLRN)

ABID AZIZ SHEIKH, J.

Through this petition the petitioner has assailed the order dated 29.10.2013 passed by respondent No.2 whereby Union Council No.82 Kotla Sultan Shah was abolished and changes were made in the area of Union Council No.81 Bait Meer Hazar Khan and Union Council No.83 Bakani on the objection of respondents Nos.5 to 8.

2. The brief facts of the case are that in pursuance of Punjab Local Government De-limitation Rules 2013, respondent No. 3 issued a preliminary list of Union Councils along with their maps specifying the area to be included in each Union Council on 10.10.2013. The petitioner, who is resident of Union Council No. 83 Bakani filed objection suggestion that the area of Bait Sial may be excluded from Union Council No. 82 Kotla Sultan Shah and be included in Union Council No. 83 Bakani, so that the population of Union Council No. 83 Bakani will increase from 16387 to 18356. Further suggestion was made that the area of Mozia Qadirpur be excluded from Union Council No.80 Kalarwali and include the same in Union Council No.82 Kotla Sultan Shah which will make its population 20938 and will result into equal distribution of population in the said Union Councils. Respondents Nos.5 to 8 also filed objections on the aforesaid Union Councils. The objections of the petitioner were not decided, however, after hearing the objections of respondents Nos.5 and 6 vide impugned order dated 29.10.2013 the respondent No.2 totally abolished the Union Council Kotla Sultan Shah and certain changes were made in the Union Council No.83 Bakani, whereby reduced its population from 16387 to 14999 and changes were also made in Union Council No.81 Bait Meer Hazara whereby further increased its population from 21035 to 21462. The petitioner being aggrieved filed this constitutional petition.

3. The learned counsel for the petitioner argued that under the Punjab Local Government Act 2013 read with Punjab Local Government (De-limitation), Rules 2013 and the subsequent guidelines issued by the Government of the Punjab, the population of Union. Councils has to be uniformed and equally distributed. Submits that the population of Union Council No.83 (Bakani) was already less than the other. Union Councils, which was further reduced through the impugned order, which is patently in violation of the law. Further contends that none of the voters or resident of Union Council No.82 Kotla Sultan Shah filed the objection on the said Union Council, therefore, there was no occasion to abolish the said Union Council. Contends that objectors (respondents Nos.5 and 6) were not residents of Union Council No.82 Kotla Sultan Shah and therefore, their objection was not maintainable under guideline No.30 according to which only the person, who is a voter in Union Council or ward could file objection. Adds that even the map shows that there is no geographical compactness of the area. The learned counsel contends that respondent No.2 without any lawful justification and reason, has materially effected the constituency of five Union Councils including Union, Council No.81 Meer Hazar Khan, Union Council No. 82 Kotla Sultan Shah, Union Council No. 83 Bakani, and Union Council Bhindi Koray. Contends that petitioner was neither given hearing nor his objection was decided, therefore, the impugned order is erroneous, fanciful, mala fide and not sustainable under the law.

4. Conversely, the learned counsel for respondents Nos.1 to 4 argued that the issues raised in this petition are factual in nature, therefore, it cannot be resolved by this Court in its constitutional jurisdiction. Further submits that neither the geographical compactness of the area has been affected nor uniformity of population has been violated. Submits that petitioner has failed to suggest that how and where various Mozia Jaat be adjusted in the six Union Council which are bound to be effected, with his suggestions. Contends that the impugned order is legal and valid.

5. The learned counsel for respondents Nos.5 to 8 adopted the arguments of the learned counsel for respondents Nos.4 to 8 and submits that the said respondents are relatives of the petitioner and are residents of Union Council No.83 Bakani, therefore, they had lawfully filed objection, which was allowed by respondent No.2. Contends that the impugned order is valid and legal.

6. I have given my anxious consideration to the arguments of the learned counsel for the parties and have gone through the record, appended herewith.

7. The process and procedure of Delimitation of Union Council is prescribed under the Punjab Local Government Act, 2013 (XVIII of 2013) (hereinafter referred to Act) read with Punjab Local Governments (Delimitation) Rules 2013 issued under section 144 of the Act (hereinafter referred to as Rules).

8. The Union Council is defined under section 2(ggg) of the Act, which reads as under:- 2(ggg). "Union Council means an area notified as Union Council under this Act" The delimitation of Union Council is prescribed under section 8 of the Act and for ready reference, the same is reproduced hereunder:-

8. Delimitation of Union Councils

(1) A Union council shall be an area consisting of one or more revenue estates or, in the case of an area where revision of settlement under the law has not been taken place one or more census villages or, in the case of at urban area, a census block or blocks as delimited for the purpose of the last preceding census or a census block and a revenue estate, notified as such by the Government. (2). As far as possible- (a) the area of a Union council shall be a territorial unity; (b) the boundaries of a union council shall not cross the limits of the Metropolitan Corporation, a Municipal Corporation, Municipal Committee or a District Council; and (c) the population of union councils within a local government shall be uniform. The identical provisions of section 8 ibid is also provided in rule 4 of the Rules of 2013.

9. The perusal of the aforesaid provisions shows that it has been bifurcated into two parts. In the first part in section 8(1) the word "shall" has been used, therefore, the same is mandatory, whereas in the second part in section 8 (2), the words "as far as possible" are used which give discretion to the authorities and does not make this provision absolute and mandatory.

10. As per provision of section 8(2), as far as possible, the area of Union Council shall be a territorial unity, the boundaries of Union Council shall not cross limits of Metropolitan Corporation, Municipal Committee or a District Council and population of union councils shall be uniform.

11. In pursuance to Act and Rules, the guidelines are formulated for delimitation of Union Councils and Wards (hereinafter referred to as guidelines). The guideline at Sr. No.2 is relevant, which is reproduced hereunder:- "

2. The foremost principle for delimitation of Union Councils and the wards in a Municipal Committee is to have regard to the equal distributing of population, geographical compactness, existing boundaries of administrative units, facility of communications and public convenience".

12. In view of the Act, Rules and Guidelines for delimitation of union council, the authorities are required to maintain existing boundaries, territorial unity, geographical contiguity and compactness, uniform and equal distribution of population, facility of communications and public convenience. These requirements must be basic consideration and as far as possible, must be followed by delimitation officer, however, where these requirements are not strictly followed, it should be through reasoned order and he must not act in mala fide, or in fanciful and haphazardly manner.

13. The perusal of the record shows that as per notification for preliminary list of delimitation dated 10.10.2013 the population of Union Council No.80 Karalwali was 21177, whereas the population of Union Council No.81 Meer Hazar Khan was 21035, the population of Union Council No.82 Kotla Sultan Shah was 16258, Union Council No.83 Bakani was 16387 and Union Council Bhindi Korayi was 21146. It is evident from the above, that the least population of the Union Councils, mentioned above, were Union Council No.82 Kotla Sultan Shah with 16258 and Union Council No.83 Bakani with population 16387. The petitioner filed an objection/suggestion that Bait Sial be included in. Bakani which will make its population 18356, whereas Mozia Qadirpur be included in Kotla Sultan Shah, which will increase its population to 20938, hence, the population of the area would be equally distributed. It is an admitted position that objections/suggestions of the petitioner were not decided or adhere to by respondent No.2. None of the residents of Union Council No.82 Kotla Sultan Shah filed any objection regarding Union Council No.82 Kotla Sultan Shah or requested to abolish it. The respondent No. 2 while hearing the objection of respondents No. 5 and 6 instead of making equal distribution of population in all the Union Councils has, altogether, abolished the Union Council No. 82 Kotla Sultan Shah and thereafter instead of increasing the population of least populated of Union Council i.e. No. 83 Bakani, further reduced its population from 16387 to 14999. The perusal of the impugned order dated 29.10.2013 shows that no justification or reasoning was given in the comments filed by the DCO/Delimitation Officer for abolishing Kotla Sultan Shah or reducing population of Union Council No.83 (Bakani). Respondent No. 2 also without giving any cogent reason, justification or even without objection from the residents of Union Council No. 82 Kotla Sultan Shah, abolished the Union Council of Kotla Sultan Shah and further reduced the population of Union Council No. 83 Bakani. The impugned order dated 29.10.2013, is not only without reasoning but it is also passed in a slipshod manner, where name of Union Council abolished, has wrongly been mentioned as "Kotla Laal Shah" instead of Kotla Sultan Shah. No hearing was given to the petitioner, who already filed objection or to voters of Kotla Sultan Shah, whose U.C. was abolished without any objection from them. I also find substance in the arguments of the learned counsel for the petitioner that none of the objectors before respondent No. 2, were residents of Kotla Sultan Shah. The objector/respondent No.5 (Asghar Saeed), as per voter list attached as well as National Identity Card produced by the said respondent himself, is resident of Union Council No.83 Bakani, and not Union Council No. 82 Kotla Sultan Shah. Similarly, respondent No.6 (Hassan Mujtaba) as per NADRA. record produced by the petitioner is resident of Dinga Korayi, which falls in Union Council No.

87. No document has been produced by the said respondents to controvert the above stance taken by the petitioner, which shows that the petitioners are not voters of the Union Council Kotla Sultan Shah and therefore, could not file objection regarding the said Union Council under the guideline No. 30 of the guidelines issued by the Government of the Punjab. I have also gone through the map of the said Union Councils and found that Mauza Bait Daryaee which was earlier part of Union Council No.83 Bakani (now excluded from Bakani and included in Union Council No.84. Bhindi Korayi) prima facie seems more contiguous to Union Council No.83 Bakani rather Union Council No.84 Bhindi Korayi. Therefore, it cannot be said that even the compactness of the area was kept in mind while passing the impugned order.

14. Though in constitutional jurisdiction this Court cannot embark upon the factual inquiry, however, in the present case, no such factual inquiry required to reach to the conclusion that the impugned order on the face of it is without reasoning, non speaking and is in violation of the provisions of Act, Rules and the Guide-Lines, therefore, not sustainable under the law. It is settled law that where the order is in excess of jurisdiction, without jurisdiction and in manifest breach of some law, the same can be set aside by this Court in constitutional jurisdiction. In this regard reliance is placed on the cases reported as Qari Muhammad Siddiq v. Delimitation Officer, Liaqatpur and others (1993 CLC 63), Khawas Khan and others v. Government of N.W.F.P through Secretary for Local Bodies and Rural Development Department Peshawar and others (2003 CLC 817), Khan Muhammad Kalyar and 2 others v. The Commissioner Sargodha Division Sargodha and 7 others (2001 MLD 303)

15. In view of the above, it is evident that while passing the impugned order respondent No. 2 has not kept in mind the foremost principle of delimitation including equal distribution of the population, geographical compactness, hence, the provisions of section 8 of the Act, Rule 4 of the Rules and the Guidelines Nos. 2 and 30 of the Guidelines are being violated. Accordingly this constitutional petition is allowed and the impugned order 29.10.2013 is set-aside. The matter is remitted back to the Delimitation Authority with a direction to give hearing to the petitioner and all the concerned and pass a speaking and well reasoned order regarding all the Union Councils involved, strictly in consonance with the provisions of Act, Rules, Guidelines and the law applicable. MH/K-3/L Case remanded.