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Petitioner: IQBAL PAHORE VS Respondent: THE STATE and others
Court Name: Sindh High Court Judge(s): Anwar Zaheer Jamali, Muhammad Mujeebullah Siddiqui Title: IQBAL PAHORE vs THE STATE and others Case No.: C. P. No.D-346 of 2003 Date of Judgment:2004-04-20 Reported As: 2004 YLR 2136 Result: Petition dismissed
JUDGMENT
JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioner has sought the following relief:-- (i) Declaration that the order dated 8-11-2003 by Honourable Member, Election Commission of Pakistan (respondent No.3) having been passed without lawful authority is of no legal effect. (ii) Declaration that respondent No.4 has not secured more than 50 per cent of the total votes of the members of the 11 Union Councils in Taluka Hyderabad and that the respondents 1 and 2 are liable to hold fresh election (run off election) in which the petitioner and respondent No.4 shall be the contesting candidates. (iii) That permanent injunction be issued restraining the respondents 1 and 2 from issuing notification of declaring the respondent No.4 as returned candidate and restraining the respondent No.4 from taking oath or holding office of Nazim Taluka Hyderabad. (iv) Any other relief this Honourable Court deems fit may be granted. ' The relevant facts giving rise to this petition are that Taluka Council Hyderabad consists of 11 Union Councils, each Union Council comprises 21 Members and thus the total number of membership for the purpose of electing Nazim and Naib Nazim of Taluka Council Hyderabad is 231. In the Local Council Elections held on 31-5-2000, 230 Members of 11 Union Councils Taluka Hyderabad were elected while 1 seat remained vacant. The respondent No.2 Provincial Election Commissioner, Sindh, published the list of voters for conduct of the election of Taluka Council Hyderabad showing 230 members/voters. On account of occurrence of casual vacancy for the office of Nazim Taluka Council Hyderabad, the Election Commission conducted by-election on 20-10-2003. The petitioner Iqbal Pahore and the respondent No.4 Ghulam Ali were the contesting candidates. Before the
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conduct of election for the post of Nazim Taluka Council Hyderabad, the Taluka Municipal Officer issued a list of voters showing 7 vacancies. The bifurcation of the 7 vacancies was as follows:-- (2)Seat lying vacant since 1 very beginning (3)Vacancies on account of 4 death of members Ceased to be member on 1 account of having been elected as member of Taluka Council (4) Resigned and joined service. Total: ' On the date of election there were 224 eligible voters. Out of them 222 voters exercised their right of vote, while 2 were abstentions, 3 votes were rejected. The number of valid votes casts were 219 out of which the petitioner secured 105 votes while the respondent No.4 Ghulam Ali secured 114 votes. The respondent No.4 was declared elected as Nazim Taluka Council Hyderabad. The petitioner objected to the declaration of respondent No.4 Ghulam Ali as having been elected Nazim, Taluka Council Hyderabad and made a representation to the Chief Election Commissioner of Pakistan and Provincial Election Commissioner, Sindh, contending that the t6tal number of members of Electoral College for the election of Nazim, Taluka Council Hyderabad is 231. The respondent No.4 Mr. Ghulam Ali has secured 114 votes and thus has failed to secure majority of the total votes and thus is not entitled to be declared as elected. The aforesaid application was marked to respondent No.3, Member, Election Commission of Pakistan for disposal. The learned Member, Election Commission of Pakistan heard the learned Advocates for the petitioner and respondent No.4. It was contended before the learned Member, Election Commission that the returned candidate was required to secure more than 50 per cent of the total membership, notwithstanding the fact that 7 seats were lying vacant. The contention of the respondent No.4 was that he has secured more than 50 per cent of the total members of the Electoral College who were notified .To be the Members of the Electoral College. The notified members were 224' only and not 231, therefore, the number of votes secured by him, to wit 114 are more than 50 per cent of the Members of the Electoral College, and thus he was rightly declared as elected Nazim. ' The learned Member, Election Commission considered the contentions with references to the provisions contained in sections 148, 154 and 156(5) of the Sindh Local Government Ordinance, 2001 and held that the respondent No.4 Ghulam Ali has secured 114 votes out of 224 and has thereby obtained more than 50 per cent votes of all the members of the Taluka who were duly notified by the Election Commission as returned candidates and Members of Electoral College. The learneil Member, Election Commission further held that the Members of the Union Council were the Members of Electoral College and, therefore, the 7 vacant seats were not the part of the Electoral College. The application submitted by the petitioner was dismissed accordingly. ' Being still feeling aggrieved the petitioner has filed this petition contending that total number of votes for election of the Nazim, Taluka Council Hyderabad, is 231 and not 224 as held by the learned Member, Election Commission. It is further contended that if explanation to section 148, Sindh Local Government Ordinance, 2001, is applied the total number of notified members is 230 and not 224. It is further contended that the Taluka Municipal Officer has no jurisdiction to prepare the list of voters and to show 7 vacant seats without any notification under section 164, Sindh Local Government Ordinance, 2001, and therefore, the list of voters showing 224 members is unauthorized and could not be acted upon. It is urged that the vacancy of any seat will not in any manner reduce the number of Members of Electoral College for the purpose of section 154(4), Sindh Local Government Ordinance, 2001. ' In the counter-affidavit filed by respondent No.4 it is urged that the list of voters for the conduct of election of the Nazim, Taluka Council Hyderabad appended with the petition shows that 4 voters had died before the by-election and 1 seat was lying vacant from the very beginning, 1 seat fell vacant on account of election of a Member of Union Council as member of Taluka Council and 1
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member resigned and joined service thus the total number of the members of the Electoral College on the date of election was 224, out of which he has obtained 114 votes which is more than 50 per cent of the votes of the Members of Electoral College for the election of Nazim, Taluka Council Hyderabad. Thus he has been rightly declared elected as Nazim, Taluka Council Hyderabad by the Returning Officer and application submitted by the petitioner has been dismissed in accordance with the law. The Chief Election Commissioner and the Provincial Election Commissioner have supported the case of respondent No.4 in parawise comments. ' We have heard Mr. Jhamat Jethanand, Advocate for the petitioner, Mr. Aijaz Ali Hakro, Advocate for respondent No.4, Mr. Ahmed Ali Shaikh, Advocate for respondents Nos.1, 2 and 3 and Mr. Masood A. Noorani, learned Additional A.-G., Sindh who was present on Court notice. ' Mr. Jhamat Jethanand, learned counsel for the petitioner has submitted that the composition of Electoral College for the election of Taluka Nazim is given in section 148 of the Sindh Local Government Ordinance, 2001. Under this provision all the Members of the Union Councils in the Taluka shall be the Members of the Electoral College. He has further referred to the explanation to section 148, Sindh Local Government Ordinance; 2001 according to which all Members of Union Councils notified as returned candidates in the elections held under the Sindh Local Government Ordinance, 2001 shall be 'deemed to be Members of the Electoral College. He has further referred to the provisions contained in section 154(4) of the Sindh Local Government Ordinance, 2001 which, provides that in case Taluka Nazim and Naib Taluka Nazim do not secure more than 50 per cent of the total votes of the Members of the Union Councils in the Taluka, there shall be held fresh election within one week of the -first election for which candidates securing the highest and second highest number of votes in the first election shall be contestants, and the joint candidates securing the highest number of votes in the fresh elections shall be declared elected. Mr. Jhamat has further argued that once the Members of Union Councils are notified as returned candidates they shall be deemed to be Members of Electoral College as contained in explanation to section 148 and shall continue to hold such status notwithstanding the death of any Member, his resignation or ceasing to be Member as such, until and unless a notification in this behalf is issued under section 164 of the Sindh Local Government Ordinance, 2001. He has maintained that the admitted position is that initially the Election Commission of Pakistan notified 230 Members of Union Councils as returned candidates with the result that they became Members of the Electoral College for the election of Nazim Taluka Council Hyderabad and thereafter no notification has been issued pertaining to the death of 4 Members, resignation of 1 Member and ceasing of 1 Member on account of having been elected as Member of Taluka Council with the result that all such Members continue to be the Members of Electoral College and total votes of the Members of the Union Council in Taluka Hyderabad constituting Electoral College continues to be 230. According to him Taluka Nazim is required to secure more than 50 per cent of the total votes of the Members of the Union Councils in the Taluka which comes to 116. The respondent No.4 has secured 114 votes and thus has not secured more than 50 per cent of the total votes of the Members of the Union Council in the Taluka, with the result that he was not entitled to be declared as elected Taluka Nazim and the notificat'.Zin issued in this behalf is liable to be set aside and likewise the order of the learned Member, Election Commission suffers from illegality which is not sustainable in law and is liable to be struck down. ' On the other hand Mr. Masood A. Noorani, learned A.A.-G. Has submitted that the admitted position is that the total Membership of the Union Councils in Taluka Hyderabad is 231. 230 Members were declared elected and were duly notified. 6 seats had fallen vacant prior to the date of bye-election of the Nazim, Taluka Council Hyderabad. There were 224 Members only on the date of election out of whom 2 Members did not exercise their-right of vote. 222 Members exercised the right of vote. 3 votes were rejected. According to learned A.A.-G. a candidate is required to secure more than 50 per cent of the votes cast or at the most more than 50 per cent of the total votes on
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the day of election. Thus out of 224 votes the candidates securing more than 112 votes was entitled to be declared as elected Nazim; Taluka Council. The respondent No.4 secured 114 votes and was. Therefore rightly declared to be elected Nazim, Taluka Council to which no exception can be taken. In support of his contention the learned A.A.-G. Has placed reliahce on the judgment of Honourable Supreme Court in the case of Mir Saleem Khan Khosa v. Chief Election Commissioner 2002 SCM R 109. In this judgment the provisions contained in section 16 of the 43alochistan Local Government Election Ordinance, 2001 and rule 57 of the Balochistan Local Government Elections Rules, 2000, came for consideration which read as follows:-- ' Section 16: "(2) The Nazim and the Naib Nazim of a District Government or a Town Government or a Tehsil Government securing as joint candidates more than 50% of votes shall be declared elected. (3) In a case of Zila Nazim and Naib Zila Nazim or a Town Nazim and Naib Town Nazim or a Tehsil Nazim and a Naib Tehsil Nazim do not secure more than 50% of the total votes of the members of the Union Councils in the respective District, or Tehsil/Town, there shall be held a fresh election, within one week of the first election, in which the joint candidates for such offices securing the highest and the second highest number of votes shall be contestants, and the joint candidates securing the highest number of votes in the fresh election shall be declared elected." ' Rule 57: "In case any joint candidates for a Zila Nazim and Naib Zila Nazim, or a Tehsil Nazim and Naib Tehsil Nazim who failed to secure more than 50% of total votes of the number of Members of Union Council in the respective Districts or Tehsil/Town and as such were not entitled to be declared elected, the result of the count shall be reported to the Chief Election Commissioner." ' While interpreting the. Above provisions it has been held by Honourable Supreme Conti that the securing of more than 50 per cent of the total votes of the Members of the Union Council, in the District is mandatory and the candidates who failed to achieve the target are not to be notified as returned candidates even if they secured highest number of votes. The relevant facts in the cited case were that the total number of the Electoral College in the constituency was 949. The total number of votes cast were 939, out of which 905 votes were declared valid and 34 votes were rejected. One panel secured 475 votes and was declared elected by the Returning Officer. The Honourable Supreme Court held that the total number of notified Members of the Union Councils was 949 constituting the Electoral College. It was further held that the provisions contained in subsections (2) and (3) of section 16 of the Balochistan Local Government Election Ordinance, 2001 being complementary to each other were to be read together and their cumulative effect was that in order to be declared successful the joint candidates must secure more than 50 per cent of the total number of votes of the Electoral College and not of the total number of votes cast at the election or the valid votes. It was further held that according to mathematical calculation 50 per cent of the total number of votes of the Electoral College comes to 474.5 and the panel securing 475 votes had secured more than 50% per cent of the total number of votes of the Electoral College and therefore, the requirement of subsections (2) and (3) of section 16 of the Ordinance stood satisfied. ' The learned A.A.-G. Has submitted that the ratio of above judgment of Honourable Supreme Court is that for the purpose of election as Nazim and Naib Nazim the requirement is securing of more than 50 per cent of the votes of the Members of the Union Council, meaning thereby the Members of the Union Council on the date of election and the Members who were elected but died before the election or the seat lying vacant on account of non-election, resignation or ceasing of a person to be a Member on account of having been elected as Member of another counsel shall be excluded.
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' Mr. Aijaz Ali Hakro, learned counsel for respondent No.4 and Mr. Ahmed Ali Shaikh, learned counsel for respondents Nos. 1 to 3 have adopted the arguments addressed by the learned A.A.-G. ' We have carefully considered the contentions raised by the learned Advocates for the parties. Before appreciating their respective contentions it would be appropriate to reproduce the relevant provisions of law which read as follows:-- ' SECTION 2: Definitions. ' In this Ordinance, unless there is anything repugnant in the subject or context:-- (i) to (xviii) --- (xix) 'member' means an elected member of a Council; (xx) ---------- (xli) --------- ' SECTION 148: Franchise:-- (1) Members of a Union Council including Union Nazim and Naib Union Nazim shall be elected through elections based on adult franchise and on the basis of separate electorate. (2) The Electoral College for the election of Zila Nazim and Naib Zila Nazim, and reserved seats of women, peasants and worker, and minorities in the Zila Council shall be all the Members of Union Councils in the District, including Union Nazims and Naib Union Nazims. (3) The Electoral College for the election of a Taluka Nazim, Town Nazim, Taluka Naib Nazim, Town Naib Nazim and reserved seats of women, peasants and workers, and minorities in the Taluka Council and Town Council shall be all the Members of the Union Councils in the Taluka or, as the case may be, Town, including Union Nazims and Naib Union Nazims: ' Provided that for the election for reserved seats for women in Zila Council proportionately divided among Talukas or Towns shall be all Members of the Union Councils in a Taluka or, as the case may be, Town. ' Explanation: For the purpose of this section, all Members of Union Councils notified as returned candidates in the elections held under this Ordinance shall be deemed to be Members of the Electoral College. ' SECTION 152: Qualification for candidates and Elected Members. (1) A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he:-- (a) is a citizen of Pakistan. (b) ' is not in the service of the Federal, a Provincial or a Local Government or any Statutory Body or a body which is controlled by any such Government or, in which any of such Government has a controlling share or interest, except the holders of elected public office and part time officials remunerated either by salary or fee: ' Provided that in case of a person who has resigned or retired from such service, a period of not less than six months has elapsed since his retirement, to (s) ' SECTION 154: Joint Candidacy and Elections:- (1) (2) (3) The Zila Nazim and Naib Zila Nazim, Taluka Nazim and Naib Taluka N,Lirr, and a Town Nazim and Naib Town Nazim securing as joint candidates more than fifty per cent of votes shall be declared elected. (4) In case of Zila Nazim or Naib Zila Nazim, or a Taluka Nazimand Naib Taluka Nazim, or a Town Nazim and Naib Town Nazim do not secure more than fifty per cent of the total votes Of the members of the Union Councils in the respective District, Taluka or, as the case may be, Town there shall be held a fresh election within one week of the first election for which the joint candidates
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securing the highest and the second highest number votes in the first election shall be contestants, and the joint candidates securing the highest number of votes in the fresh, elections shall be declared elected. SECTION 158: Bar against Nazims for Dual Membership etc. ' A Zila Nazim, Naib Zila Nazim, Taluka Nazim, Naib Taluka Nzim, Town Nazim, Naib Town Nazim, Union Nazim and Naib Union Nazim may contest election for any other political office after resigning from the existing office of Nazim, or, as the case may be, Naib Nazim: ' Provided that a member of Zila Council, Taluka Council, Town Council or Union Council may contest election for any other political office without resigning from the membership of such Council: ' Provided further that such member shall not hold more than one office at one time. SECTION 162: Resignations by Members of the Council:-- (1) A member of the Council may resign from his office by writing under his hand addressed to the Naib Nazim of the concerned Council, whereupon the resignation shall deem to be accepted and effective forthwith. (2) Copies of all resignations shall be forwarded to the Election Commission and the Government. (3) (2) SECTION 164: Notifications to be issued:-- (3) ' The Chief Election Commissioner shall notify every election, by-election and result of such elections and resignation, removal or recall of a member, Nazim or Naib Nazim, as the case may be. ' A perusal of the above provisions shows that under section 148(3) the Electoral College for the election of Taluka Nazim comprises the Members of the Union Councils in the Taluka. The explanation to section 148 further clarifies that the Electoral College shall comprise of all Members of the Union Councils notified as returned candidates in the elections held under the Sindh Local Government Ordinance, 2001. In order to appreciate the contention of Mr. Jhamat Jethanand that once a Member of the Union Council is notified as returned candidate he/she shall continue to be Member of Electoral College notwithstanding his/her death, resignation, joining the service or ceasing to be Member on account of having been elected as a Member of another Council until and unless a notification is issued in this behalf under section 164 of the Ordinance, we would like to examine various provisions reproduced above. For this purpose we will examine the provision contained in section 148(3) of the Ordinance once again. It is provided that the Electoral College for the election of a Taluka Nazim shall be all the Members of the Union Councils in Taluka. Normally, an explanation is added to a provision of law, where the Legislature is of the view that there is likelihood of an interpretation which is not in consonance with the 'intention of the Legislature or for the purpose of clarifying any ambiguity. It has been aptly said that normally an explanation does not contain a substantive Legislation but is a note of caution by the Legislature to convey its, intention and to prevent the substantive provision contained in a particular section from being interpreted in any other way. A perusal of the explanation shows that it is for the purpose of section 148 only. It means, for the purpose of constituting Electoral College, only such Members of Union Councils shall be deemed to be Members of Electoral College, who are notified as . Returned candidates in the elections. Thus a notification declaring a Member to be returned candidate is sufficient per se to make him Member of Electoral College and no other notification is required in this behalf. No other qualifications or conditions are to be fulfilled for becoming Member of the Electoral College except that he/she is notified as returned candidate. However, the fact should be kept in view that both under subsection (3) of section 148 and explanation thereto it is specifically provided that in order to be Member of Electoral College he should be a Member of a Union Council, meaning thereby, that if any person is not a Member of the Union Council or ceases to be
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a Member of the Union Council he shall not be a Member of the Electoral College. The term 'Member' has been defined in section 2(19) to mean an elected Member of Council and thus wherever the term 'Member' is used in the Ordinance it shall be interpreted as such, unless there is anything repugnant in the subject or context. Here a question arises whether a person continues to be a Member even after his death, resignation or ceasing to be a Member under the provisions of the Ordinance. It is provided in section 152 that a person shall qualify to be elected or to hold an elective office or a Membership of a Local Government if he is a citizen of Pakistan. It requires no emphasis that as soon as a person dies he ceases to be a citizen of Pakistan and thus a dead person cannot hold an elective office or Membership of a Local Government. It is to be noted that section 152 of the Ordinance does not merely specify the qualifications for candidates to contest the election but at the same time provides the qualifications to hold an elective office or membership of Local Government. Thus if a person is elected as a Member and is notified as returned candidate, he shall hold the Membership of a Local Government so long he does not suffer from any disqualification specified in section 152. A person joining service shall be disqualified to hold the Membership of Local Government. Under section 158 a Member of Union Council may contest selection to the Member, Taluka Council without resigning Membership of such Council but once elected shall not hold more than one office at one time. So far the resignation is concerned it is provided in section 162 that a Member of the Council may resign from his office by writing under his hand addressed to the Naib Nazim of the concerned Council, where upon the resignation shall deem to be accepted and effective forthwith. A copy of the resignation shall be forwarded to the Election Commission and under section 164 the Chief Election Commissioner shall notify such resignation. However, the provision contained in subsection (1) of section 162 is very clear to the effect that as soon as the resignation is handed over to the Naib Nazim of the concerned Council by a Member, the resignation shall deem to be accepted and effective forthwith. The issuance of notification under section 164 is not a condition precedent for making the resignation effective and the acceptance by any authority is also not a condition precedent. Under subsection (1) of section 162 there is a deeming provision under which the resignation as soon as handed over to Naib…
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