P L D 2004 Supreme Court 399 (PLP)

Date of hearing: 10th February, 2004. ABDUL HAMEED DOGAR, J. ‑‑‑Petitioners seek leave to appeal against the judgment dated 31‑10‑2003 of a learned Division Bench of the High Court of Sindh, Bench at Sukkur, whereby Constitution Petition No.D‑665/2003 filed by the respondents was allowed.

2. In the aforesaid Constitution petition it was urged by the respondents that they being the registered voters of Khairpur District had legal right under the law not only to contest the election but also to elect the representatives of their choice by casting their votes in their favour. According to the them about 104 vacant seats of members of different Union Councils situated in Taluka Khairpur, Kingri, Gambat, Sobhodero, Nara, Kotdiji, Mirwah and Faiz Ganj including some seats of Zila Council Khairpur were lying vacant in District Khairpur for the purpose of constituting District Council, Taluka Council and Zila Council. Petitioner No.2 Chief Election Commissioner, Islamabad, vide notification dated 21st September, 2002, announced the election schedule for the conduct of bye-election to the above vacant seats. So much so the list of District Returning Officer, Returning Officer and Assistant Returning officer was also issued. However, the said elections were postponed without any justification, thus time schedule fixed in the notification expired and no new time schedule was announced. It was vide notification dated 11th September, 2003 petitioner No.2 announced the programme for holding bye‑election of Naib Nazim of Districts Khairpur, Jacobabad, Dadu and Thatta. In view of the above notification, the Returning Officer published election programme and invited nomination papers from the candidates who wished to contest election for the said seat of Naib Nazim, District Khairpur. Feeling aggrieved, the respondents invoked the Constitutional jurisdiction of High Court through Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 mentioning therein that writ of mandamus be issued directing the petitioners to hold election regarding 104 vacant seats and that the impugned notification dated 11‑9‑2003 for holding the election of Naib Zila Nazim Khairpur be declared illegal, improper and without legal jurisdiction, being violative of law.

3. In their respective parawise comments, the petitioners took the plea that it was not an essential pre‑requisite condition in the Sindh Local Government Ordinance, 2001 (hereinafter referred to as `the Ordinance') for filling up all the vacant seats of the various Councils constituting the electoral college before holding election of Naib Zila Nazim. In this respect, explanation attached to section 148 of the Ordinance has clarified this ambiguity. Thus the petition being not maintainable was liable to be dismissed.

4. After affording full opportunity of hearing to the parties, the petition was allowed and the impugned Notification dated 11‑9‑2003 was declared as illegal and without jurisdiction. The petitioners were directed to first conduct bye‑election against the above said 104 vacant seats and thereafter to commence the proceedings with regard to the election for the office of Naib Zila Nazim District Khairpur.

5. We have heard Syed Zaki Muhammad, learned D.A.‑G. for the petitioner and Dr. Qazi Khalid Ali, learned Addl. A.G. Sindh for the pro forma respondents and have gone though the record and the proceedings of the case in minute particulars.

6. Learned counsel for the petitioners at the very outset informed the Court that the schedule for holding bye‑election against the above mentioned 104 vacant seats has been issued by the Election Commission of Pakistan. In this view of the matter though the petition has become infructuous but the learned Dy. A.‑G. insisted that the same .may be disposed of on merits. According to him, explanation attached to section 148 of the Ordinance stipulates that all members of Union Council notified as returned candidates in the election held under this Ordinance shall be deemed to be the members of the electoral college. He maintained that in view of this provision of law, it is not necessary to first hold Election about 104 seats but the members already notified will constitute electoral college about the election of Naib Zila Nazim. On query about non‑holding of the election against 104 said vacant seats, though notified vide notification dated 21‑9‑2002, learned D.A.‑G simply replied that it was‑ due to law and order situation, the election was not conducted.

7. For proper appreciation, it would .be appropriate first to reproduce subsection (2) of section 148 of the Ordinance:‑‑ "(2) The Electoral College for the election of Zila Nazim and Naib Zila Nazim, and reserved seats of women, peasants and workers, and minorities in the Zila Council shall be all the members of Union Councils in the District, including Union Nazims and Naib Union Nazims."

8. On its bare reading, it is manifest on the face of it that the electoral College for the election of Zila Nazim and Zila Naib Nazim shall consist of all members of Union Council in District including Union Nazim and Naib Union Nazim. It was in view of this provision of law, petitioner No.2 Chief Election Commissioner first announced the election schedule regarding bye‑election to the above said 104 vacant seats vide Notification dated 21st September, 2002. Irrespective of the schedule even the list of appointment of District Returning Officer, Returning Officers and Assistant Returning Officers was also issued. It is pertinent to note that without assigning any reason, the petitioners postponed the said election and did not conduct the‑election and the time fixed in schedule expired. All of a sudden petitioner No.2 Chief Election Commissioner vide Notification No.F.26(17)/2003‑Elec‑II(1), dated 11th September, 2003 announced the schedule for holding, bye‑election of Naib Zila Nazim of District Khairpur. It is am admitted fact that presently as many as 104 seats of members of different Union Councils are lying vacant in District Khairpur sine last more than two years and the process of bye‑election has not been initiated even so far, thus electoral college for tire election of Naib Zila Nazim is not complete.

9. The concept of the Local Government, system envisages participation of the local population at gross‑root level and it was with this spirit that the present system of Local Government has been introduced through the Ordinance. The basic idea to enforce this system is not only to decentralize the democratic system but also to promote the welfare of common men. For its success and stability, the completion of above process is essential. As such, depriving the right of a vote to the above mentioned 104 voters would not only be against the object of adult franchise but would be the denial of the privilege of fundamental rights as guaranteed in the Constitution.

10. Section 148 of the Ordinance deals with the election of the members of the Union Council, including Union Nazim and Naib Union Nazims, based on adult franchise and through separate electorate whereas section 156 of the Ordinance requires that in the event, a seat of a member in a Council falls vacant during the tenure of that Council, the same shall be filled, through bye‑election. Subsection (3) of section 156 of the Ordinance requires that such bye‑election shall be held once a year on a date or dates, fixed by the Chief Election Commissioner. Whereas in term of subsection 3(a) of the aforesaid section, the period of one year has to be computed from the date of assumption of the office of the Council. It is, however, provided that in the year in which general elections are to be held, bye‑elections may be held within 18 months. The bare reading of section 156 reveals that election to a vacant seat of a member of a Council is to be filled up through bye‑election, essentially within a period of one year. However, such period of one year may be extended to 18 months in the event only, where general elections are to be held during the relevant year. Hence the election for vacant seats of a council can, at best, be delayed for a period up to 18 months and that too upon a contingency, otherwise a vacant seat is to be filled up through bye‑election within a period of one year from the date it falls vacant.

11. Admittedly a period of more than one year, has elapsed since the schedule for the election of the said 104 seats was, announced but till today, no such bye‑elections have been conducted, which is in clear violation of section 156 of the Ordinance. The explanation furnished by learned Dy.A.‑G. in that respect is neither convincing nor justifiable as primarily it is the duty of the Government to maintain law and order situation.

12. For what has been discussed above, we do not find any exception to interfere with the finding recorded by the High Court which is accordingly maintained. Resultantly, the petition being devoid of merit is dismissed and leave to appeal refused. S.A.K./F‑4/S Leave refused.