Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Khalid Maqbool Siddiqui & Others VS Respondent: Province of Sindh & Others
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar, Amjad Ali Sahito Title: Khalid Maqbool Siddiqui & Others vs Province of Sindh & Others Case No.: CP No. D-883/2022, CP No. D-3823/2022 Date of Judgment:2022-06-24 Reported As: 2022 SHC 318 Result: Petition Dismissed
Judgment JUDGEMENT Muhammad Junaid Ghaf far, J. Both these petitions involve a somewhat similar legal controversy; hence, at the request of the Petitioner 's Counsel in CP No.D-3823 of 2022, they were heard and decided together on 24.6.2022 and were dismissed by means of a short order with all pending applications. Through these Petitions, the Petitioners have prayed for the following reliefs:- "C.P. No. D-883/2022 In the light of the reasons, facts and circumstances as mentioned above, it is most respectfully prayed that this Honourable Court may be pleased to pass judgment and decree in favour of Petitioner and against the Respondents:- i) To direct the respondents furnish comments before this Hon'ble Court for their policy regarding Delimitation along with previous policy along with reason for not calling objections in this regard. ii) To declare notification dated 31.12.2021 is without lawful authority , void, illegal based on malafide intention and is in violation of Hon'ble Supreme Judgment reported in PLD 2014 SC 531 . iii) To declare that Town demarcation as made on ethnic linguistic and malafide consideration further rule of Sub- Division rule of lower limit and upper limit of population and principles of contiguity have been violated therefore notification dated 31.12.2021 is illegal. iv) Respondent may be directed to recall the notification dated 31.12.2021 or to accept the suggestions of Petitioner and re demarcate the towns. v) To suspend the operation of notification dated 31.12.2021 till final disposal of this petition. vi) Any other relief or reliefs which this Honourable Court may deem fit and proper in the circumstances of the case may also be awarded to the Petitioner in the interest of justice & equity ." C.P. No. D-3823/2022
---
## Page 2
i) Set aside the Election Commission of Pakistan' s Notification dated 11.5.2022 scheduling the first phase of local government elections with balloting on 26.06.2022 and Notification dated 29.4.2022 scheduling the second phase of local government elections with balloting on 24.7.2022; ii) Declare that any elections held for local bodies in Sindh prior to compliance with the directions of Hon'ble Supreme Court detailed in its Judgment dated 1 February 2022 passed in CP No. 24 of 2017 would not constitute elections to elect "representatives of the local government" within the meaning of Article 140-A of the Constitution; iii) Direct the Sindh Government to ensure that the Sindh Local Government Act, 2013 is brought in line with the requirements of Article 140-A of the Constitution and the Judgment dated 1 February 2022 passed by the Honourable Supreme Court in CP No. 24 of 2017; iv) Restrain the Respondent No. 3 from announcing schedule of elections for local government in Sindh before delimitation of constituencies in Sindh is completed and electoral rolls are prepared; v) Direct the Respondent No. 3 to expeditiously hold elections to the local governm ent within the meaning of Article 140-A of the Constitution after the directions regarding devolution made by the Hon'ble Supreme Court in the aforesaid Judgment are complied with and the process of delimitation is completed; vi) Any other order that may be in the interest of justice; vii) Costs of the Petition." 2. Dr. Farogh Naseem learned Counsel appearing on behalf of the Petitioners in C. P. No. D-883 of 2022 has contended that the Judgment of the Hon'ble Supreme in the case of MQM Pakistan & Others Vs. Pakistan dated 1.2.2022 in Constitutional Petition No. 24 of 2017 decided under Article 184(3) of the Constitution of Islamic Republic of Pakistan ("Constitution") is being violated and not adhered to by the Government of Sindh as well as Election Commission of Pakistan ("ECP") ; that through impugned notification dated 31.12.2021 various Local Councils have been notified which are in violation of various provisions of the Election Act, 2017 ("Elections Act") as well as Sindh Local Government Act, 2013 ("SLGA, 2013") ; that the Government of Sindh has done so to favour itself by manipulating the formation of these Councils on the basis of its vote bank; that ECP has constituted Delimitation Committees wherein no Government Officer can be a member of such Delimitation Committee; that in terms of Section 222(2) of the Election Act they can only assist ECP; that the First Schedule (Part-"B") of Section 10 of the SLGA 2013 are contrary to each other inasmuch as the limits of population provided thereunder are not in conformity with the basic provision of said Act; that this conduct of the Government of Sindh amounts to Gerrymandering, whereby , distortion has been created in the range of popu lation in respect of Municipal Committees, Union Councils, Wards etc. etc.; that presently , pursuant to the Supreme Court Judgment as above, a Select Committee has been constituted by the Provincial Assembly and all Political Parties are working on various amendments in SLGA, 2013; hence, the elections of Local Government being conducted by ECP on 24.6.2022 and 24.7.2022 must be put in abeyance till such time the necessary amendments are made in the said Act; that in terms of Section 23 of the Election Act, only one electoral roll is to be prepared, whereas, presently the Website of the Election Commission and the SMS facility via 8300 provided to a voter , reflect s that there are two lists in field which is a cause of confusion and till such time appropriate and final electoral roll has been prepared, no elections including that of the Local Government can be conducted; that it is the fundamental right of the Petitioners and the Political Parties under Article 17 of the Constitution to contest elections and form a Political Party , and such right is being violated by the conduct of ECP; that Section 52 of the Election Act is also being violated; that the Election Rules particularly Rule Nos. 16 to 18 of the Election Rules 2017, are in violation of the various provisions of the Election Act; that as to delay , if any, in approaching the Court, per settled law when a provision by itself is unconstitutional then laches do not apply ; that the entire exercise of Delimitation carried out by ECP is contrary to law and has been done in an arbitrary manner; hence, cannot be sustained; that until SLGA, 2013 is suitably amended, no Elections of Local Governm ent can be held; hence, ECP be restrained from conducting Elections being held on 26.6.2022 and 24.7.2022. In support of his contention he has relied upon various cases . 3. Mr. Choudhry Atif Rafiq learned Counsel appearing for the Petitioners in C.P. No. D-3823 of 2022 while adopting the arguments of Dr. Farogh Naseem, has further contended that the Judgment of the Hon'ble Supreme Court in the case of MQM Pakistan (supra) is being violated and till such time this Judgment is implemented in letter and1
---
## Page 3
spirit, no election for Local Government ought to be conducted; that the Petitioners had earlier approached the Hon'ble Supreme Court under Article 184(3) of the Constitution and after objections on the maintainability of such petition, the Petitioner has been asked to approach this Court; hence, this Petition; that until the powers are devolved upon the Local Government and Councils in conformity with Article 140A of the Constitution, no elections for Local Government could be held. 4. Mr. Khurram Shahzad, Additional Director General (Law), ECP has contended that in terms of Section 219(4) of the Election Act, the elections for Local Government are to be mandatorily conducted within 120 days after expiry of its previous term, and since there was a census issue prior to this along with certain litigation; hence, the elections were delayed; that presently , the elections are being conducted after consultation with all Provincial Governments, including Government of Sindh which has consented to the conduct of the elections and even suggested for an extension in the election date which was accepted; that around 27,000 candidates are contesting these elections and 30 million ballot papers have already been printed, whereas, all political parties and their candidates including the Petitioners before this Court are contesting these Electio ns without raising any objection including the Delimitation issue; that approximately an amount of Rs. 500 million has already been spent and therefore no case for staying the election has been made out; that insofar as the Electoral Roll and two lists as contended by the Petitioners Counsel is concerned, ECP is preparing a final Electoral Roll for the purpose of the next General Elections to be held in 2023 and it has got no nexus with the elections of the Local Government which are being held on the basis of the Electoral Roll already prepared; that in term of Section 42 of the Election Act an existing Roll remains in field until a new and final Electoral Roll is prepared and notified; that message (SMS) service via 8300 is only a mode and manner of assistance and facilitation and is not a creation of any law or rule; hence, even if there is any discrepancy , the same cannot be a ground to challenge the entire Electoral Roll; that the Delimitation exercise has already been carried out and the Petitioners are not aggrieved persons, within the contemplation of the Election Act, as only a voter can challenge the same before Delimitation Authority in terms of Section 222 of the Election Act; that it is the authority and mandate of ECP to carry out Delimitation with the assistance of the Revenue Officers, whereas, the Delimitation Committee is chaired by the officer of the ECP; that this Court has been approached at a very belated stage seeking stay of the elections which cannot be granted and therefore, both these Petitions are liable to be dismissed. In support he has relied upon various cases . 5. Learned Assistant Advocate General appearing on behalf of Government of Sindh has submitted that whatever orders are passed by this Court, the Government is bound to implement them, whereas, in compliance of the Judgment of Hon'ble Supreme Court in the case of MQM Pakistan (supra) a Select Committee has been constituted which is already deliberating to amend SLGA, 2013 and therefore, no violation of the directions of the Hon'ble Supreme Court has been committed by the Government of Sindh. 6. We have heard both learned Counsel for the Petitioners as well as Counsel for ECP and learned AAG and have also perused the record. Insofar as C.P. No. D-883 of 2022 is concerned, the same has been filed by five petitioners who claim to be the Covenanter and Deputy Convener and other authorized persons of MQM Pakistan as well members of National and Sindh Assembly . These petitioners have, in essence, primarily impugned Notification dated 31.12.2021 issued by the Government of Sindh under Section 10(1) of SLGA 2013 on the ground that the same has been issued without lawful authority , is void, illegal and based on malafide intentions. The said Notification determines and notifies the number of Local Councils including Metropolitan Corporation, Town Municipal Corporations and Union Committees of Karachi Division . It may be noted that it has got nothing to do with the entire Province of Sind as conte nded on behalf of the Petitioners. It may also be of relevance to observe that the entire arguments of the Petitioners Counsel in CP No.D-883 of 2022 are beyond the main prayer in this Petition; rather nothing has been submitted before us as to the main prayer in the petition. It is a matter of record that this Petition was presented before this Court on 12.02.2022 and was never pursued diligently , inasmuch as on 21.02.2022 a notice was ordered by the Court, and thereafter , it is only on 02.06.2022 when a new Counsel was engaged by the Petitioners who appeare d and filed his Vakalatnama before the Court and the matter was then adjourned to 06.06.2022. On such date Counsel for the Petitioners stated before the Court that an application2
---
## Page 4
under Order 6 Rule 17 of the Code of Civil Procedure will be filed for amendment of the pleadings. On 20.06.2022 notice was waived on this application when the law officer of Election Commission of Pakistan as well as DAG sought time to file objections. The said application bearing CMA No. 16652 of 2022 remained pending and had never been granted; however , the learned Counsel for the Petitioners has made his entire arguments on the basis of the said amendment application as if it has already been granted. Through the said application, further challenge has been made in respect of various other notifications issued by the Government of Sindh and ECP. In fact, the prayer so made is so complexed; vague and generic in nature, that at least it cannot be entertained in terms of Order 6 Rule 17 CPC so as to allow an amendment in a pending petition, more so when it is entirely irrelevant and diacritic to the main prayer . Nonetheless, and notwithstanding the fact that this application was yet to be granted; nor any amended petition was before the Court, if the arguments so made by the Petitioners Counsel are looked into, even then to the extent of amended prayer , it appears that no case has been made out. 7. The first objection which has been raised is to the effect that the Delimitation Committees have been constituted in violation of Section 222(2) of the Election Act; are corium-non-judice, as they also include the Revenue Officers. However , this argument does appear to be convincing at all. First and foremost is that no independent order of a Delimitation Committee is under challenge before us. Nonetheless, it appears to be an admitted position that the Delimitation Committees have been constituted by ECP in terms of Section 222(2) read with Rules 16 & 17 of the Election Rules 2017, by virtue of which Delimitation Committees are headed by the officers of the ECP, and not by the Revenue Authorities, whereas, they are only included to provide assistanc e as mandated under the Act. Therefore, we are not inclined to accept the Petitioners contention in this regard and are of the view that no illegality has been committed in the constitution of the Delimitation Committees. Moreover , we have not been assisted as to what dominating or overriding role as alleged has been performed by the Revenue Authorities, which could, per-se, be held to be in violation of the Election Act, and its Rules; therefore, this objection appears to be misconceived and is hereby repelled. Lastly , as already noted, the entire challenge to the formation of the Delimitation Committees appears to be vague, too generalized, and is without any specific details. The Petitioners have not taken recourse to the remedy as provided under the Election Act in terms of Section 223(3) by impugning the findings of the Delimitation Committe e before the Delimitation Authority which is the proper forum for the said purposes. In terms of Rule 21(3) of the Election Rules 2017, the Delimitation Authority , may even hold inquiries, summon witnesses and record evidence while deciding the objections against delimitation by the Committees. Therefore, even if the amended prayer in the petition to the extent of any dispute regarding orders / findings of the Delimitation Committees is looked into, the very maintainability of CP No.883 of 2022 is a big question. The Petitioner has chosen to approach this Court, without first challenging the findings of the Delimitation Committees in accordance with the Elections Act and Rules, whereas, no individual person aggrieved of such delimitation has come before us to challenge any such findings. Therefore, the argument regarding any illegality in the constitution of the Delimitation Committees and their determination is not tenable; hence stands repelled. 8. As to the argument raised by both learned Counsel appearing on behalf of the Petitioners to the effect that Judgment of the Hon'ble Supreme Court in the case of MQM Pakistan supra is not being implemented and has been violated, it would be of relevance to refer to Para 46 of the said Judgment (the operative part), whereby , certain directions have been issued. It reads as under:- "46. This very operative part of the judgme nt, given by this Court in the Imrana Tawana's case (supra) , in our view, with full force applies to the present case also. As the controversy in the present petition also substantially revolves around the same subject, as has been dealt with by this Court and the judgment being a law declared by a 3- Member Bench of this Court, in terms of Article 1&9 of the Constitution, is the operative law of the land. We tend to agree with the operative part of the judgment of this Court in Imrana Tiwana's case (supra) and thus, would dispose of this petition in the following terms:- (i) Elected Local Government are presen tly notin existence in the Province of Sindh. The Provincial Government through its agencies is performing their duties and functions. In the vacuum resulting from the absence of an elected Local Government in Sindh, the initiation, approval and execution of any of the duties and functions of the elected local government are allowed to be carried out by the provincial government and no new project following3 4 5 6
---
## Page 5
within the domain of the elected local government shall be undertaken by the provincial government or its agency without prior consultation and consent unless withheld without justified reasons, as the case may be of the elected local government in respect of such project. (ii) Article 140A of the Constitution of Islamic Republic of Pakistan casts a mandatory obligation on the Provinces to establish Local Government possessing meaningful authority and responsibility in the political arena, administrative and financial matters. It is the duty of a province through the Provincial Government and the Provincial Assembly to purposefully empower Local Governments in the province so as to comply with their mandatory obligation under Article 140A of the Constitution. (iii) The powers in relation to master plan and spatial planning which historically belongs to the elected local government have been superimposed with similar functions vesting in the provincial laws. To the extent of conflict in the exercise of their respective powers and functions by the elected local government and the statutory authorities or on account of legal provisions having overriding effect, Article 140A of the Constitution confers primacy upon the authority vesting in an elected local government over the powers conferred by law on the provincial government or agency thereof. Notwithstanding the above, the provincial government in any case is "under a duty to establish harmonious working relationship with an elected local government" wherein respect is accorded to the views and decisions of the latter . (iv) Thus, the laws made by the provincia l government i.e. the Sindh Building Control Ordinance, 1979, KDA Order No.5 of 1957, Malir Development Authority Act, 1993, Liyari Development Authority Act, 1993, Karachi Water and Sewerage Board Act, 1996, Hyderabad Development Authority Act, 1976, Sehwan Development Authority Act, 1993, Larkana Development Authority Act, 1994, any dispensation pertaining to the Board of Revenue or the Master Plan Department or any other Development Authority in the province of Sindh and the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environment al Protection Agency Act, 2014, purporting to override and conflicting action taken by an elected local government are held to be against the scheme of the Constitution and the provincial government is directed to bring all those laws in accord with the mandate of Article 140A of the Constitution. (v) The Government of Sindh shall ensure that all local governments in the provinc e of Sindh do get their share in the divisible pool of funds by implementing the Provincial Financial Commission Award and also to ensure that no arrears in this regard are accumulated and if, there are arrears, the same are released. (vi) Sections 74 and 75(1) of the Act of 2013 are against the principle enshrined in the Objectives Resolution and the fundamental rights enacted in Articles 9, 14 and 25 of the Constitution and are also contrary to and in direct conflict with Article 140A of the Constitution and thus, declared ultra vires and struck down. 9. From perusal of the aforesaid findings of the Hon'ble Supreme Court and the directions contained therein it appears that what the Petitioners Coun sel have argued in support of their plea that Elections of the Local Government be stayed is on the face of it contrary to the dicta laid down by the Hon'ble Supreme Court. The above finding does not support their plea of staying the Elections for want of proper Delimitation as desired. It has been held by the Hon'ble Supreme Court that presently the Local Governments are not functional , whereas, the functions of the Local Government are being performed by the Government of Sindh which cannot be accepted, whereas, Article 140-A of the Constitution casts a mandatory obligation on the Provinces to establish Local Government possessing meaningful authority . It is further provided that ECP shall hold Elections of the Local Government, whereas, pursuant to Section 219(4) of the Election Act, ECP shall hold Elections to the Local Government within one hundred and twenty days of the expiry of the terms of the Local Governments . Admittedly , the present Elections of the Local Government in the Province of Sindh are being held much beyond this period of 120 days. In that case if the Local Government system has to be established in a fixed period of time or for that matter expeditiously and as soon as possible, then perhaps, the request for staying the Elections being held in two phases on 26.6.2022 and 24.7.2022 in the Province of Sindh does not appear to be in consonance with the directions of the Hon'ble Supreme Court of which the implementation is being sought by the Petitioners. It further appears that the Hon'ble Supreme Court was pleased to declare that Section 74 & 75(1) of SLGA 2013 are against the principles enshrined in the Objectives Resolution and the fundamental rights as provided in Articles 9, 14 & 257
---
## Page 6
of the Constitution and are also contrary to and in direct conflict with Article 140A of the Constitution; hence, declared as ultra vires and accordingly struck down. Section 74 & 75 of the SLGA 2013 at the relevant time read as under:- "74. T ransfer of functions from Councils to Government and V ice V ersa.- Notwithstanding anything contained in any other law for the time being in force, Government may - (a) take over the management and control of any institution or service maintained by a Council; and (b) transfer the management and control of any institution or service maintained by Government to a Council. [75. Commercial schemes.- (1) Government may set up a Board, Authority or any corporate body to perform any one or more functions of any Council, singly or jointly with any public or private body , and may acquire, continue, manage or operate any commercial venture or activity as deemed necessary in the public interest. (2) Any commercial operations or venture jointly with any private body or person in existence at the time of commencement of this Act shall continue to do so. (3) The Council may, with the prior permis sion of Government, promote, administer , execute or implement schemes for undertaking any commercial, business enterprise or enter into public private partnership.]" 10. From perusal of the above it clearly reflects that through both these Sections the Government of Sindh had taken over the entire functions and working of the Local Government System, whereas, no Elections were being held on one pretext or the other , and therefore, MQM Pakistan approached the Hon'ble Supreme Court under Article 184(3) of the Constitution and sought a prayer that this conduct of the Government of Sindh is contrary to law and the Constitution and therefore, the Hon'ble Supreme Court while allowing the Petition was pleased to hold that the functions of Local Government cannot be performed by the Government of Sindh on its own sweat will and choice. Therefore, the only inference which can be drawn from the judgment of the Hon'ble Supreme Court in MQM Pakistan (Supra) is, (and this is notwithstanding the fact that whether appropriate amendment(s) have been made or not in SLGA, 2013, pursuant to the above directions), the primary purpose and the intention behind…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.