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Petitioner: Syed ARSHAD HUSSAIN VS Respondent: The GOVERNMENT OF SIND AND 38 Other
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed, B. G. N. Kazi Title: Syed ARSHAD HUSSAIN vs The GOVERNMENT OF SIND AND 38 Other Case No.: Constitutional Petition No., D-772 of 1980 Date of Judgment:1980-09-30 Reported As: PLD 1982 Karachi 604 Result: Petition dismissed
JUDGMENT
JUDGMENT NAIMUDDIN, J.-This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan (1973) filed by Syed Arshad Hussain, one of the voters for the election of Members of the Sukkur Municipality, is directed against the holding of offices by respondent No. 6 as Mayor of the Municipal Corporation, Sukkur (hereinafter called the Corporation), respondent No. 7 as Deputy Mayor of the Corporation and respondents Nos. 8 to 39 as Members of the Corporation. The Government of Sind, the Provincial . Election Authority, Sind (hereinafter called the Authority). The- Deputy Commissioner, Sukkur and the two Additional District and Sessions Judges, Sukkur have been joined as respondents Nos. I to 6. 2. The facts giving rise to this petition so far relevant for consideration of the points raised by the learned counsel for the parties in their arguments are as follows;-- 3. .In order to hold elections of members to various Councils in the Province of Sind under the Local Government Ordinance, 1979 (hereinafter called the Ordinance) the Authority, respondent No. 2 by Notification dated 30-8-1979, issued under section 36 of the Ordinance read with rule 10 of the Sind Local Council (Elections) Rules, 1979 (hereinafter called the Rules), `1'6blished for general information, final list of constituencies or electoral units, after the delimitation of the units for elections to the various Local Councils as defined in Schedule I of the Ordinance. The Constituencies included Constituency for Municipal Committee, Sukkur. The final list of the constituencies was, however, published in the Sind, Government Gazette (hereinafter called the Gazette), dated 22-12-1979. 4. The Authority by another notification dated 30-8-1979, in pursuanee of the provisions of rule 11 of the Rules appointed various persons mentioned therein as Returning Officers. So far as electoral
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unit of Taluka Sukkur including Municipality of Sukkur was concerned, Mr. Imdad Ali Memon, Senior Civil Judge and First Class Magis--trate, Sukkur, was appointed as such. This notification was issued under the signatures of the Chairman and other two members of the Authority, and published in the Gazette dated 3-9-1979. 5. Thereafter, nominations to various constituencies were invited by 8-9-1979 but the time was extended upto 15-9-1919. On completion of formalities, on 25-9-1979, elections were held to the various Councils including the Municipal Committee, Sukkur and the names of the successful candidates returning to the Local Councils for the District Sukkur were notified on 8-10-1979, and published in the Gazette dated 1-11-1979. 6. It appears that prior to elections Mr. Imdad Ali Memon who was appointed as Returning Officer was replaced by Mr. Kadir Bux Umrani, I1nd Additional District and Sessions Judge, Sukkar. However, the notifica--tion issued on 26-2-1980, notifying the appointment of Mr. Kadir Bux Umrani as Returning Officer was published in the Gazette dated 8-3-1980. This notification was issued under the signature of Mr. Justice (Retd.) Mushtaq Ali Kazi, Chairman, Provincial Election Authority. The above notification was followed by another Notification No. PEAS/516/80 dated 12-3-1980 (Exh. 3) issued in exercise of powers under rule 11 of the Rules, whereby the amendment in the names of the Returning Officers notified for Sukkur District by the Notification No. PEAS/453/80 dated 26-2-1980 was declared to have effect from the date of original Notification No. PEAS/Not/9/79 dated 30-8- 1979. This notification was also issued under the signature of Mr. Justice (Retd.) Mushtaq Ali Kazi; Chairman of the Authority. 7. After the election of members, respondents Nos. 5 and 6 were elected as Chairman and Vice- Chairman respectively of the Sukkur Municipality in accordance with the Sind Councils (Assumption of Office) Rules, 1979. 8. Thereafter, the Government by the notification dated 25-3-1980 pursuant to the provisions of section 9 of Ordinance read with sections 7 and 10 thereof after inviting objections and after the Municipal Committee, Sukkur had passed the resolution supporting the changes mentioned in the notification declared the Sukkur City and constituted a corporation for the city of Sukkar and directed that the existing Chairman and Vice-Chairman and Members of the Sukkur Municipal Committee shall respectively become the Mayor and the Deputy Mayor and the Members of the Sukkur Municipal Corporation constituted as aforesaid. 9. During the hearing of arguments respondents Nos. 1 and 2 filed two counter affidavits one of Saeedul Hassan, Secretary of respondent No. 2 controverting the various points raised in the petition and stating that since entire election programme had been condensed and the election was scheduled to be held on 25th September, 1979, publication of preliminary delimitation of Constituency was directed to be carried out by the Deputy Commissioners by displaying the List of Electoral Units for each Council i.e. District Councils and Union Councils in Rural areas and Town Committees, Municipal Committees and Corporations in Urban areas at conspicuous places at their own offices and offices of the Council concerned and at such other public places as they deemed fit and further stating that a final list of delimitation of Constituencies was published on 30th August, 1979, and was sent to the Government press the same day for publication in the Sind Government Gazette. 10. As regards the substitution of the names of the Returning Officers it is statue the list of the Returning Officers as originally published on 30-8-1979 was revised on 5-9-1979. In support of this statement reliance is placed on the second affidavit filed by Mr. Mustafa Akber, the then Member and Secretary of the Authority, besides a phetostat copy of a letter dated 30-8-1979, addressed to the Deputy Commissioner of all Districts, whereby they were informed that the Authority had approved the final list of delimitation of the electoral units of all the Districts of Sind on that date and were further informed that the Authority had forwarded one copy-for publication in the
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Extraordinary Gazette and a copy supplied to A. D. L-G. Of their District. They were requested to take immediate steps to display copies of the final Electoral List in their own offices and also in the offices of the Returning Officers and the Local Council concerned. 11. Mr. Mustafa Akber, with regard to, the substitution of the Returning Officers, in his affidavit, has stated that on 5-9-1979, a telegraphic message bearing No. 7223 was received by him from the Deputy Commissioner, Sukkur requesting for certain modification in the list of the Returning Officers already appointed for Sukkur District. Following the receipt of telegram he consulted the then Chairman of the Authority and obtained his concurrence for the substitution of the names of the Returning Officers and he conveyed the approval of the Authority to the Deputy Commissioner, Sukkur on or about 6-9-1979, for the substitution of the names of the Returning Officer when the Deputy Commissioner Sukkur contacted him on phone and he explained in the affidavit the reasons why the changes in the list of the Returning Officers of Sukkur District escaped publication and he gave therein the reasons. Alongwith the affidavit of Mr. Mustafa Akber (Exh. 3/1) a photostat copy of the letter in confirmation of the telegram is filed which reads as follows; "Subject:-( ) Appointment of Returning Officers/Assistant Returning officers( . ) Following Returning Officers Are Recommended For Sukkur District( . ) Name of the Returning OfcerArea (1) (2) Mr. Kadir Bux Umrani, 2ndCity Sukkur Additional District and Sessions Judge, Sukkur. (3)--------------------------------------------------------------------------------------- ---. (4) Mr. Imdad Ali Memon, Senior Civil Judge/Taluka.Sukkur. FCM, Sukkur. (5) (6) .:. (7) (8) (9) Kindly Issue Notification Accordingly(. ) List of Assistant Returning Officers Follows(. ) Approval May Kindly Be Accorded, A photostat copy of another letter dated 28.2-1980 from the Deputy Commissioner, Sukkur, addressed to the Secretary of the Authority (Exh. 3/1/B) is also annexed to the affidavit which reads as follows;-- "Subject : Appointment of Returning Officer. Ref : This Office Letter No. Election Cell/1939 dated 21-2-1980. This Office record shows that the proposal for appointment of Returning Officers/Assistant Returning Officers for this district was sent under this Office wireless message No, LCE/7196, dated 14-9-1979 followed by telegram under this Office No. IB(d)/7223 dated 5-9-1979 for approval and issue of such notification. It was intimated by the Secretary, PEA on phone that the proposal sent by this office should be considered as approved and that formal notification will be issued in due course of time. Mr. Kadir Bux Umerani District and Sessions Judge, Sukkur was proposed as Returning Officer for' City Sukkur and 'Mr. Imdad Ali Memon, Senior Civil Judge F. C. M. Sukkur was proposed as Returning Officer for "Sukkur Taluka". They have actually performed their duties as such and no addition or alteration was made in the above proposal which remained in tact till last moment."
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12. Since the respondents Nos. 1 and 2 had not filed the counter---affdavit in time, for, according to rules they had to file the same 4 days prior to the date of hearing but they had fled the same during the course of arguments, the same was taken on record on the condition that if Mr. Abdul Hafeez Pirzada considered it necessary he would be allowed to cross examine the deponent. Accordingly, Mr. Pirzada cross-examined the deponent. We propose to discuss his evidence while discussing the points raised by the learned counsel for the petitioner in support of the petition. 13. We have heard at length Mr. Abdul Hafeez Pirzada, Advocate for the petitioner, Mr. Hassan Akber, Assistant Advocate-General for respondents Nos. 1 and 2, Mr. Khalid M. Ishaque Advocate for respondents Nos. 6, 7, 10. 11, 15 to 18, 20, 22, 24, 26, 29, 30 to 34 and 36 to 38, and Mr. Maqbool Ahmed Khan, Advocate for respondents Nos. 8, 9, 13, 14, 20, 23, 27, 28 and 29. 14. Mr. Abdul Hafeez Pirzada, learned counsel for the petitioner raised before us the following two grounds in support of the petition; (i) The elections of respondents 6 to 39 held on 25-9-1979 to the Municipal Committee of Sukkur were void for the reasons that-- (a) respondent No. 2 had failed to notify and publish in the official gazette the notification of the delimitation of constituencies before the elections were held as required by section 30 of the Ordinance and rule 10 of the Rules, and (b) the elections to Sukkur Municipality were held not by the appointed Returning Officer, but by a usurper and stranger who usurped the functions of the Returning Officer, (ii) respondents Nos. 6 and 7 were elected as Chairman and Vice-- Chairman of the Municipal Committee of Sukkur while respondents Nos. 8 to 39 as Members thereof and they could not occupy the public offices of Municipal Corporation, Sukkur and call themselves as Mayor, Deputy Mayor and Members of the Corporation respectively. 15. Before we consider these grounds it is necessary first to deal with the preliminary objection raised by Mr. Khalid M. Ishque as to the maintainability of the petition. He submitted that the petition is not maintainable because it suffers from laches, and the petitioner had alternate remedy. 16. So far as the question of laches is concerned it is necessary to give certain material dates. This petition was filed on 6-5-1980, the elections to the Sukkur Municipality were held on 25-9-1979 respondents Nos. 6 and 7 were elected as Chairman and Vice-Chairman on .14-11-1979, the change in the name of the Returning Officer was notified on 26-2-1980, and published in the Gazette dated 8-3-1980 and the notification giving the said notification retrospective effect was issued on 12-3- 1980. The Sukkur Municipality was upgraded and declared Sukkur City by the notification dated 25- 3-1980, published in the Gazette dated 17-4-1980, and by the same notification the Sukkur Municipality was constituted a corporation and the existing Chairman and Vice-Chairman and Members of the said Municipal Committee were respectively directed to become Mayor and Members of the Sukkur Municipal Corporation constituted as aforesaid. 17. The present petition is under Article 199 of the Constitution and contains a prayer in the nature of quo warranto. In proceedings in the nature of quo warranto delay by itself has never been considered sufficient for the A purpose of defeating a petition. (See Athar Rahman v. Muhammad Latif Talmiz etc. PLD 1981 Lah. 48If a person holds a public office without the authority of law that is a continuous wrong and such a wrong whenever in question has got to be set right. Even otherwise, the question of laches has to be considered on the facts and circumstances of each case. In some case a g delay of three months may be fatal and in another a delay of years may have to be condoned. On the facts of the present case and various material dates mentioned hereinabove, we do not find the petition suffering from any laches. The first part of the preliminary objection is therefore overruled.
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18. As regards the question of alternate remedy it would suffice to say that the petitioner was only a voter and was not a candidate at the elections and therefore could not have challenged the elections under the Rules. Rules 65 of the Rules gives a right to a candidate only to file an election petition. No provision., of the Ordinance of the Rules have been brought to our notice nor have we came across any which give the petitioner a right to file an election petition. Even otherwise, the second ground urged by Mr. Pirzada could not have formed the basis for setting aside the elections and could not be urged in an election petition even by a candidate. Therefore, it cannot be said that the petitioner had any alternate remedy available to him. We therefore, overrule the preliminary objection and proceed to examine the grounds urged by Mr. Pirzada. 19. Now, taking up the first part of the first ground that respondent No. 2 failed to notify in the official Gazette the notification or delimitation before the elections were held as required by section 36 of the Ordinance and rule 10 of the Rules it is necessary first to refer to these provisions. Under section 36 of the Ordinance the Election Authority is required, in the prescribed manner, to delimit the local area into single or mufti-member electoral units or both. The provisions relating to delimitation of electoral units are contained in rules 8, 9, and 10 of the Rules. These Rules are as follows;- "8.-(1) For the purpose of elections, a local area shall be divided into electoral units keeping in view the number of seats on the council and the population of the local area. (2) 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. (3) As many Delimitation Officers as deemed necessary shall be appointed to assist in the delimitation work. 9.-(1) The election Authority shall arrange to have a preliminary list of electoral units delimited under rule 8, published in such manner as it deems fit together with a notice inviting objection or suggestions within such time as may be specified by the Authority. (2) Any person entitled to vote at an election may, within specified time make a representation in respect of the delimitation of the electoral units, to such officer or authority as the Election Authority may appoint in this behalf. 10. (1) The Election Authority or any member thereof if so empowered by the Authority may after considering the representation and hearing those who wish to be heard make such amendments, alterations or modifications In the preliminary list published under rule 9 as deems fit. Provided that the Member dealing with any representation may, if he thinks it appropriate, refer it to the Election Authority for decision. (2) After disposal of all representations made under sub-rule (1), the Election Authority shall arrange to have the final lists of electoral units published in the official Gazette or in case of urgency in such manner as it deem fit." It will be seen from the provisions of sub-rule (2) of rule 10 that after disposal of all representations made under sub-rule (1) of rule 10 of the Rules, the Election Authority is required to arrange to have the final list of the electoral units published in the official Gazette and in case of urgency, in such manner as it deemed fit. It is the case of the respondents that the final list was published on 30-8- 1979, though, no doubt it was notified in the official Gazette dated 22-12-1979, and is spread over 439 pages thereof. In the counter-affidavit filed by Saeedul Hussain, Secretary of respondent No. 2 it is stated that since entire election programme bad been condensed and the election was scheduled to be held on 25th September, 1979 publication of preliminary list of delimitation of electoral units was directed to be carried out by the Deputy Commissioners by displaying the list of electoral units for each Council i.e. District Councils and Union Councils in Rural area and Town Committees, Municipal Committees, and Corporations in Urban area at conspicuous places at their own offices and offices of the Council concerned and at such other public places as they deemed fit. He has further stated that a final list of delimitation of Constituencies was published on
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30th August, 1979 and was sent to the Government Press the same day for publication in the Sind Government Gazette. He has also stated that since notification sent to the Government Press for publication in the official Gazette by reason of its huge volume was bound to take time to appear in the Gazette and since the elections were being held under a condensed programme, publication of final list was also directed to be carried out in the manner as aforesaid that is, by displaying the same in the offices of Deputy Commissioners, Union Councils, Town Committees, Municipal Committees and Corporations. -According to him coverage by the press, over the radio and Television was also sought and was duly given inasmuch as the notification issued by respondent No. 2 was duly published in the press on 1-9-1979. He has also stated that final delimitation list was in actual effect, published on 30-8-1979 and displayed on various public places as stated above on the following day. Islamuddin, respondent No. 6 has also filed an affidavit stating that in response to the invitation for filing objections; suggestions in respect of the delimitation of constituencies several persons filed objections and the same were decided by Mr. Munawar Ali Khan, Member, Provincial Election Authority, who was authorised in this behalf by the Provincial Election Authority Sind as per detail given in the letter of the Provincial Electron Authority, Sind dated 1-6-1980, addressed to the answering respondent. He has further stated that the Provincial Election Authority released the final list of electoral units for information. In support of his statement he has filed a photostat copy of page 8 of Daily Dawn dated 1-9-1979, in which there appears a news item under the Head "Delimitation List for Sind Local Councils released". Some of the relevant .Portions of this news item are produced hereinbelow :. "The final delimitation lists of electoral units for elections to the Local Councils throughout Sind were released by the Provincial Election Authority here yesterday . . . . . . The Provincial Election Authority has also refused the final delimitation list for Hyderabad and Sukkur Divisions . . . . . . . The final delimitation list with names and designation of returning officers appointed for each unit shall be displayed at the District Headquarters in the office of the Deputy Commissioners"-[A. P. P.] We, therefore, find ample material on record to show that final list of delimitation of the electoral units was published on 30-8-1980 though not in the official Gazette. However, publication of the final list in the official Gazette was not the only mode prescribed for publication of the same. In case of urgency it could be published in such other manner as it was deemed fit. The only condition to be fulfilled for publishing the final list in such other manner as the authority deemed fit was urgency. Since the elections were scheduled to be held on Z5-9-1979, under condensed programme, as explained by the Secretary of respondent No. 2 and since the final list of delimitation of electoral units sent to the Government Press on 30-8-1980, for publication in the official Gazette, by reasons of its huge volume was bound to take time to appear therein, there was urgency. The publication of the final list, by displaying the same in the offices of the Deputy Commissioner, Union Council, Town Committee, Municipal Committee and Corporation etc., and by announcement to that effect over the radio and television and in newspapers, we are therefore satisfied that the requirement of sub-rule (2) of rule 10 of the Rules was full satisfied. However, Mr. Pirzada argued that there is nothing on record to show that there was any urgency and the procedure adopted was followed after conscious application of mind regarding the same. It is not necessary for us to deal with this argument for the ground taken in the petition is that the elections were held in violation of the mandatory provision of section 36 of the Ordinance and rule 10 of the Rules inasmuch as there was failure on the part of the respondents to notify and publish in the official Gazette the notification of delimitation before elections were held. The argument now advanced finds no basis in the grounds taken in the petition. Further, we are entitled to presume that the decision to publish the final delimitation list in the manner m which it was published, was
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duly taken, as provided under section 114 of the Evidence Act, and illustrated by illustration (e) thereunder. It is not specifically denied and in fact, in the face of the documentary evidence on record, it is not possible to deny that such list was published in other manner; otherwise it would not have been possible for the candidates to participate in the elections from various constituencies for want of know--ledge of the electoral units as finally formed and announced and there would have been no election at all. In our view the publication of final delimitation list in the Gazette dated 22-12-1979, does not affect the validity of the elections held on 25-9-1979, for the publication of such list in the Gazette was not the only mode prescribed for publication of such list. We, therefore, find no force in the first part of the first ground. 20. Now, we would consider the second part of the first ground that the elections of the Sukkur Municipality were not held by the appointed Returning Officer but were conducted by the usurper and stranger. We have already mentioned that by' the Gazette Notification dated 30-8-1979 Mr. Imdad Ali Memon, Senior Civil Judge and First Class Magistrate, Sukkur was appointed as Returning Officer but the elections were conducted by Mr. Kadir Bukhsh Umrani, 11 Additional District Judge, Sukkur. The respondents have explained that initially Mr. Imdad Ali Memon, was appointed as Returning Officer but subsequently Mr. Kadir Bux was appointed in his place. We have already adverted to the contents of the. Affidavit, filed by Mr. Mustafa Akber, the then Member and Secretary of respondent No. 2, Mr. Pirzada had cross-examined him at length and from his cross-- examination it emerges that the number of telegraphic message given by him as 7223 was not in fact number of the telegram but was the despatch number of the copy of the telegram endorsed to the office in confirmation by post and the same did not contain any request for modification of the list of the Returning Officer. He, however, explained that he had discussed and finalised the list of the Returning Officer in Karachi at the relevant time and had simultaneously requested the Deputy Commissioner to send to the Election Authority telegraphically or by wireless specific proposal regarding the appointment of the Returning Officers and the Assistant Returning Officers. He further stated in the cross-examination that when the…
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