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Petitioner: KHURSHEED AHMED JUNEJO and others VS Respondent: GOVERNMENT OF SINDH and JUDGMENT
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany, Zia Pervez Title:KHURSHEED AHMED JUNEJO and others vs GOVERNMENT OF SINDH and
JUDGMENT
Reported As: 2005 MLD 1724 Result: Petition allowed Judgment JUDGMENT ' ZIA PERWAZ, J.---Petitioners are the elected Nazims and Naib Nazims of different districts in the Province of Sindh. They have challenged four Notifications issued by respondent No.1 dated 22nd of December, 2004 whereby as a consequence of the creation of new districts the petitioners are alleged to have ceased to hold their respective offices. 2. In the elections held in the month of August, 2001 under Sindh Local Government Ordinance, 2001 read with Sindh Local Government Election Ordinance, 2000, the petitioners Nos. 1 and 5 were notified as Zila Nazim and Naib Zila Nazim respectively for District Larkana vide Sindh Government Gazettee Notification dated August 30,2001. On 13-12-2004 Government of Sindh (Revenue Department) issued a Notification No.1/18/93/Rev-1 (IV)/1053/- dated 13-12-2004 whereby a new District Kamber was created and carved out of existing District Larkana and consisting of Talukas Kamber, Warah, Shandadkot and Miro Khan with its headquarters at Kamber. On 22-12-2004 respondent No.1 vide impugned Notification bearing No.SOA(LG)(65)/2004 dated 22-12-2004 declared that the Zila Nazim and Naib Zila Nazim Larkana have ceased to hold their offices due to creation of new District Kamber and respondent No.2 was empowered to perform all the functions of the Local Government till the office of Zila Nazim and Naib Zila Nazim is filled. 3. Petitioners Nos.2 and 6 were notified as Zila Nazim and Naib Zila Nazim for District Mirpurkhas vide Notification dated 4-8-2001. On 13-12-2004 Government of Sindh (Revenue- Department) issued a Notification No. 1 /18/93/Rev-1(IV)1051 /- dated 13-12-2004 whereby District Umerkot has been revived consisting of Talukas Umerkot, Samaro, Kunri and Pithoro. On 22-12-2004 respondent No.1 vide impugned Notification bearing No.SOA(LG) 4/66/2004 dated 22-12-2004 declared that the Zila
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Nazim and Naib Zila Nazim Mirpurkhas have ceased to hold their offices due to ,creation of new District Umerkot and respondent No.3 was empowered to perform all the functions of the Local Government till the office of Zila Nazim and Naib Zila Nazim is filled. 4. Vide Notification No.F-345 dated August 30, 2001. On 13-12-2004 Government of Sindh (Revenue Department) issued a Notification No.1/18/93/Rev-1(IV)1050/- dated 13-12-2004 whereby a new District Jamshoro has been created and carved out of existing District, Dadu, consisting of Talukas, Kotri, Sehwan and Thano Bula Khan with its headquarters at Jamshoro. On 22-12-2004 Government of Sindh (Revenue Department) vide impugned Notification bearing No.SOA(LG)4(63)/2004 dated 22-12-2004 declared that the Zila Nazim and Naib Zila Nazim Dadu have ceased to hold their offices and respondent No.4 was empowered to perform all the functions of the Local Government till the office of Zila Nazim is filled. 5. Petitioner No.4 was notified as Zila Nazim for District Jacobabad vide Return of Election Form dated 9-8-2001. On 13-12-2004 Government of Sindh (Revenue Department) issued a Notification No.1/18/93/Rev-1(IV/1052/- dated 13-12-2004 whereby new District Kashmore has been created and carved out existing District Jacobabad consisting of Talukas Kashmore and Kandhkot with its headquarters at Kandhkot. On 22-12-2004 respondent No.1 vide impugned Notification bearing No.SOA(LG)/(64)/2004 dated 22-12-2004 declare that the Zila Nazim and Naib Zila Nazim Jacobabad have ceased to hold their offices and respondent No.5 was empowered to perform all the functions of the Local Government till the office of Zila Nazim is filled. 6. Respondents Nos.2 to 5 resumed the new assignment in pursuance of the impugned notifications, hence the petitioners have filed the present petition with the following prayers:-- (i) Be declared that the Notification dated 22-12-2004 (Annexures C-1 to C-4 are illegal, unauthorized, void ab initio, mala fide violative of fundamental rights and liable to be set aside by this Court. (ii) That the removal of the petitioners Nos.1 to 4 from the offices of Zila Nazim, District Larkana, Mirpurkhas, Dadu arf Jacobabad, respectively are illegal, unauthorized, mala, fide violative of their fundamental rights and of no legal effect.' (iii) Be declared that the removal of petitioners Nos.5 and 6 from the office of Naib Zila Nazim of District Larkana and Mirpurkhas respectively are illegal, unauthorized, violative of their fundamental rights with mala fide and no legal effect. (iv) A prohibitory writ restraining respondents Nos.2 to 5 Crom holding the office of Zila Nazim and Naib Zila Nazim of District Larkana, Mirpurkhas, Dadu and Jacobabad and allow the petitioners Nos. 1 . To 6 to continue with their respective offices of Zila Nazim and Naib Zila Nazim of their respective Districts. (v) Suspend the operation of Notifications dated 22-12-2004 (Annexures C-1 to C-4) issued by Additional Chief Secretary, Local. Government Department, Government of Sindh and restrain the respondents Nos.1 to 6 from implementing and acting upon or executing in any manner the aforesaid Notification dated 22-12-2004. (vi) Any other or additional relief(s) as this Court may deem fit and proper in the circumstances of the case, (vii) Grant costs of proceedings. 7. The respondent No.1 has filed comments to the petition. In the comments respondent No.1 has admitted creation of new Districts and appointment of DCOs to perform the duties of Zila Nazims and Naib Zila Nazims. However, it has been denied that the petitioners were removed from their offices. It is alleged that they ceased to be Nazims and Naib Nazims by operation of law. That under section 7 of the Sindh Local Government Ordinance, 2001, hereinafter referred to as SLGO 2001, the Government is empowered to notify in the official Gazette the Districts notified under the Sindh
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Land Revenue Act, 1967. It is further alleged that the action of the Government is strictly in accordance with the provisions of Sindh Land Revenue Act, 1967 and SLGO, 2001. 8. Mr. Abdul Hafeez Pirzada, learned counsel who advanced his arguments for the petitioner No.1, has argued that under section 164 of SLGO, 2001 only the Chief Election Commissioner can notify 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. He further argued that Zila Nazim and Naib Nazim can only be removed through external recall subject to approval by the Provincial Assembly or internal recall as envisaged in sections 23 and 24 of SLGO, 2001. While referring to section 186 of SLGO, 2001 the learned counsel has contended that the Zila Couneils/Taluka Councils shall be deemed to be validly constituted if 60% seats thereof are filled in the elections. In view of this provision even after creation of new districts/Talukas 60% seats of the respective Zila Councils/Taluka Councils are still filled, there is no reason to remove or suspend the Zila Nazim/Taluka Nazimz. Learned counsel further argued that section 186(2) of SLGO, under which DCOs have been appointed to perform functions of the Local Government, is not attracted in the instant case and the authority derived from the provisions is unlawful, illegal and coram non judice. As a consequence of this illegal and mala fide action, the work of the Local Government has come to a standstill. He contended that under section 186(2) the power to remove the Nazims are to be exercised only where a Local Government is not validly constituted or the condition is beyond human control or in the event of a natural calamity, which does not cover the present case. Learned counsel further argued that though under section 6 of the Sindh Land Revenue Act, 1967 the Government can establish Revenue Divisions and the same may be divided into different sub-divisions, Districts and Talukas but this would not affect the constituency and District for the purpose of SLGO, 2001. He further contended that under section 10 of SLGO, 2001, the local area declared thereunder shall remain the same unless varied as it has an overriding effect vide section 3 thereof. Thus, new districts created under section 6 of the Land Revenue Act will not affect the constituency and District. Therefore, all Nazims, Naib Nazims and members of the Local Government shall continue to hold their respective offices till completion of their term as envisaged under subsection (3) of section 196 and can only be disqualified by the Chief Election Commissioner under section 152(2)(b). As regards section 7 of the SLGO, 2001 empowering the Government to create new districts, learned counsel contended that the said section is to be read as a whole and not in isolation. While referring to Articles 97, 117 and 137 of the Constitution, learned counsel argued that it is the Constitutional requirement that people be allowed to enjoy representative Government in a democratic manner at gross-root level. Learned counsel finally argued that in Balochistan also new districts were carved out but no Nazim or Naib Nazim was removed and hence the rule of consistency would also apply in the instant case. In support of his contention, learned counsel has relied upon the cases of Petrosin Products (Pvt.) Ltd. v. Federation of Pakistan (2001 CLC 1412); Messrs Noorani Traders Karachi v. Pakistan Civil Aviation Authority (PLD 2002 Kar. 83); Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158 (1994 SCMR 1299); Zainul Abidin v. Multan Central Cooperative Bank Ltd. (PLD 1966 SC 445); Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan (PLD 1989 Kar. 404). 9. Mr, Abdul Majeed Pirzada, learned counsel for the petitioners Nos.5 and 6, while adopting the arguments of Mr. Abdul Hafeez Pirzada has further argued that the Nazims have signing authority with financial control and the action of the Government is just to deprive the opposite party's `Awam Dost' Nazims for using development fund for the welfare of the people of the area. He argued that only the electorate or Chief Executive can exercise such powers and in the instant case the Government has taken action and not the Chief Executive. That it is the Naib Nazim who assumes as officiating Zila Nazirn in case of removal of the earlier as provided under section 48 of SLGO, 2001 and thus the appointment of the DCO is contrary to the provisions of the SLGO, 2001.
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Learned counsel further argued that after completion of transitional period on 30-6-2002 powers under section 186(2) of the SLGO, 2001 are exhausted and as such cannot be exercised. He contended that the impugned notification pertains to the elections already held and has a retrospective effect, which is not warranted under the law and is opposed to the spirit of SLGO, 2001. He contended that the impugned notification is a colourable exercise of authority and fraud on the statute. He has relied on the case of The Collector of Customs, Karachi v. Messrs New Electronics (Pvt.) Ltd. (PLD 1994 SC 363). 10. Mr. Rasheed A. Razvi, learned counsel for the petitioners Nos.2, 3 and 4, while adopting the contentions of the other counsel has further argued that under section 159 of the SLGO, 2001 the term of the office of the petitioners expires on 13-8-2005 and it is guaranteed under section 196(3) of the SLGO, 2001. As regards the removal of the petitioners, he contended that the term "OR" as used in section 186(2) is to be read as "AND" as the term "natural calamity" and "conditions beyond human control" are interchangeable. That, as both these conditions are absent, provisions of section 186(2) of SLGO, 2001 cannot be invoked. That SLGO, 2001 is to be interpreted in a manner so as to advance the aim and purpose of the said law keeping in view Articles 17 and 32 of the Constitution of the Islamic Republic of Pakistan. Interpretation of a statute is to be done in a manner to avoid mischief and to promote justice. That appointment of a Government servant/public functionary as Nazim or Naib Zila Nazim after a Local Government has been elected, is against the very spirit of SLGO 2001. He contended that the action of the respondents constitutes malice in law. Under no law the Government has authority to declare that a Nazim or Naib Zila Nazim has 'ceased to hold office' on bifurcation, revival or creation of new districts. In support of his contentions, he has relied on the cases of M.U.A. Khan v. Rana M. Sultan and another (PLD 1974 SC 228); Abdul Razzak v. K.B.C.A. (PLD 1994 SC 512); Manzoor Hussain v. The State PLD 1965 Dacca 348; Muhammad Ismail v. The State (PLD 1969 SC 241); Commissioner of Income Tax v. National Taj Traders (AIR 1980 SC 485); Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473); Jibendra Kishore Achharyya Chowdhury and 58 others v. Province of East Pakistan (PLD 1957 SC (Pak.) 9); Khawaja Ahmed Hassan v. Government of Punjab and others (PLD 2004 SC 694); Jamat-i-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111); Mian Manzoor Ahmed Wattoo v. Federation of Pakistan and 3 others (PLD 1997 Lah. 38); Messrs Noorani Traders, Karachi through Managing Partner v. Pakistan Civil Aviation Authority PLD 2002 Kar. 83); Airport Support Services v. Airport Manager Quaid-e-Azam International Airport and others (1998 SCMR 2268). 11. On the other hand Mr. Anwar Mansoor Khan, Advocate-General Sindh, appearing for the respondents, in rebuttal strongly refuted the contentions of the learned counsel for the petitioners. He contended that under section 6 of the Land Revenue Act, the Government has authority to change, alter or create a new district, which has been admitted by the petitioners in their petition and for this reason they have not impugned the notification in respect thereof. The argument as to the fact that such creation of a district would not effect the consistency and district for the purpose of SLGO, 2001, has no force as under section 7 of the SLGO, 2001 the authority has been conferred upon the Government. He further argued that as the petitioners have not been removed, suspended, resigned or ousted from their position under sections 22, 23, 24, 129, 152 and 152(2), therefore, the procedure for such removal laid down under section 161 of SLGO, 2001 are not attracted. He contended that under section 151 the electoral ward for the posts of Nazim and Naib Nazim was the District and since such District/electoral ward by operation of law is no more in existence and consequently the authority of Zila Nazim and Naib Zila Nazim stood demolished. He further contended that as there is no provision in respect of filling of the vacancies in the circumstances, the vacancies are to be filled through by-elections as provided under section 156(5) of the. SLGO, 2001. He also refuted the allegation that the action of the Government is based on mala fides to scatter the political parties as the election was on a non-party basis. While
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justifying the action of the Government under - section 186(2) of the SLGO, he has referred to the definition of 'Natural Calamity" and 'conditions beyond human control' and submitted that in such circumstances the respondents acted under the provisions of section 186(2) and chose to go for election immediately, being the closest solution in their view. He further contended that in such a situation as consequential results are not provided by law, the Courts should invoke the 'doctrine of Casus Omissus'. In support of his contentions learned counsel has relied\ upon the cases of Khawaja Ahmed Hassan v. Government of Punjab and others (PLD 2004 SC 694); Rauf Bux Qadri v. The State (2003 MLD 777); Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607); Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan (PLD 1997 SC 582); Ardeshir Cowasjee and 11 others v. Sindh Province (2004 CLC 1353); Nawabzada Ghazanfar Ali Gul v. Government of Punjab (1999 CLC 430); The Chittaranjan Cotton Mills Limited v. The Commissioner Naravangani Municipality and The Province of East Pakistan (PLD 1958 SC 430); Messrs Amin Jute Mills Limited, Chittagong v. The Chittagong Municipality and others (PLD 1970 Dacca 338); Sunshine Cotton Mills Limited Sheikhupura v. 'Administrator, Municipal Committee, Sheikhupura and S'others (PLD 1978 Lah. 263); Surakant Walchand Shah and others v. Shahnawaz Hanifsaheb Bokhare and others (AIR 1986 Boni. 5); Aftab Hussain v. Province of East Pakistan and 2 others (PLD 1970 Dhaka 798); Mst. Bilquis Ismail v. Naeemuddin and 3 others (PLD 1995 Kar. 552); Messrs Noorani Traders, Karachi through Managing Partner v. Pakistan Civil Aviation Authority (PLD 2002 Kar. 83); Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151); Government of Pakistan v. Indo-Pakistan Corporation Limited (PLD 1979 SC 723); M.D. Tahir, Advocate v. Chief Secretary Government of Punjab, Lahore and another (1995 CLC 1687). 12. The learned counsel appearing for the parties have advanced elaborate arguments and therefore, after the detail hearing and perusal of the material available on record we propose to decide the petition at the Katcha Peshi stage along with the listed-applications. 13. In order to examine the arguments advanced by the loarned counsel, we may first reproduce one of the impugned notifications, which are similar to each other issued by the Government:-- "GOVERNMENT OF SINDH LOCAL GOVERNMENT KATCHI ABADIES AND SPATIAL DEVELOPMENT DEPARTMENT Karachi dated the, 22/12/2004, NOTIFICATION ' No. SOA(LG)4 (63)/2004 : WHEREAS vide Notification No .1/18/93/Rev-1(iv)/1053 dated 13-12-2004 issued under Sindh Land Revenue Act, followed by Notification SOA(LG)4(61)/2004 dated 6-12-2004 issued under Sindh Local Government Ordinance, 2001, District Jamshoro has been created and carved out from District Dadu; ' WHEREAS upon carving of District Jamshoro from District Dadu, a situation has arisen where the District wards have been broken and in consequence thereof, Zila Nazim and Naib Nazim Dadu have ceased to hold the offices and' the seats are to be filled in; ' WHEREAS the work of Local Government both administrative and financial, have come to stand still; ' WHEREAS the positions are required to be filled up in accordance with the provisions of the Sindh Local Government Ordinance, 2001; ' WHEREAS the conditions, for the time being, till the elections are held, are required to be regulated; ' AND WHEREAS under subsection (2) of section 186 of the ' Sindh Local. Government Ordinance, 2001 the Government may appoint a person to look after the affairs of the two offices aforementioned; being offices of the Zila Nazim and Naib Zila Nazim. ' NOW, THEREFORE, since on creation of New District Jamshoro by operation of law, the Zila Nazim and Naib Zila Nazim Dadu have ceased to hold the positions, the Government of Sindh in exercise of the powers conferred under subsection (2) of section186 of Sindh Local Government Ordinance, 2001, are pleased to empower District Coordinat;on Officer Dadu to perform all functions of the
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Local Government with immediate effect till office of Zila Nazim and Naib Zila Nazim Dadu is filled through the process and procedures provided by Sindh Local Government Ordinance. ' ADDITIONAL CHIEF SECRETARY LOCAL GOVERNMENT DEPARTMENT ' Perusal of provisions of SLGO, 2001 reveals that a District is defined under section 2(x) thereof. This definition of district would, under the ordinary course, cover the arguments as well as consequence of bifurcation as has been advanced by Mr. Anwar Mansoor Khan. The same is reproduced as follows:-- "'district' means a district notified under the Sindh Land Revenue Act, 1967 (W.P. XVII of 967), and includes a largely urban district or districts declared to the City District under this Ordinance;" ' In the present case the matter does not reset with this definition alone. A further Chapter No.II of SLGO, 2001 has been incorporated which deals with 'Local Areas and Local Governments'. It compromises of sections 5 to 12. The composition of local areas is defined under section 5 which reads as follows:-- "(5) Composition of local areas.---For the purpose of this Ordinance, the following shall be the local area, namely:-- (i) Union; (ii) Taluka; (iii) Town; and (iv) District and City District." ' Section 6 provides for delimitation of union and the conditions thereof. Section 7 of this chapter deals with delimitation and section 10 deals with local areas under previous law to continue. Both these sections are reproduced as under:-- (7) Delimitation of Talukas and Districts.---The Government shall, by Notification in the official Gazette, declare Talukas and Districts notified under the Sindh Land Revenue Act, 1967 (W.P. Act XVII of 1967), to be Talukas or, as the case may be, Districts under this Ordinance. (10) Local areas under previous law to continue.---Unless varied under this Ordinance, any local area declared or notified by the Government under the Sindh Local Government Election Ordinance, 2000 (X of 2000), as Union Taluka, Town, District or City District shall continue to retain such status and shall be deemed to have been notified as such under this Ordinance. 14. Chapter XIV of SLGO, 2001 is entitled 'Government Local Government Relations' covering sections 127 to 134. Section 129 empowers the Chief Executive of the Province to suspend the Zila Nazim which reads as follows:- 129. Suspension of Zila Nazim.----(1) Where in the opinion of the Chief Executive of the Province the Zila Nazim deliberately avoiding or failing to comply with the directions given by the Chief Executive of the Province under section 128, the Chief Executive of the Province may suspend the Zila Nazim. (2) The suspension of the Zila Nazim under subsection (1), shall be subject to ratification by the Provincial Assembly within thirty days. (3) If the Provincial Assembly by a simple majority of its total membership ratifies the suspension of the Zila Nazim, he shall stand removed from his office: Provided that the Zila Nazim shall be provided with an opportunity of being heard by the Provincial Assembly. (4) If the Provincial Assembly does not ratify the suspension of the Zila Nazim, the orders of the Chief Executive of the Province shall cease to have effect. (5) During the period of suspension of a Zila Nazim, the Naib Zila Nazim shall act as Zila Nazim in accordance with the provisions of section 22. 15. Chapter XVIII entitled 'Managing Transition' covers sections 180 to 187. This Chapter provides for succession of properties, assets and liabilities under section 180 and the establishment of First Local Government of 14th August; 2001 and the assumption of the office of the elected
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representatives has been made effective under section 181. A power has been placed on internal recall motion in case of Taluka Nazims, Town Nazim or Union Nazim before 31-12-2002 and in case of Zila Nazim Before 30-6-2002 by Sindh Local Government (IX Amendment) Ordinance w002 (XLIII of 2002) whereby this amendment was made. The administrative transition is covered under section 182. Mechanism has been provided to the employees regarding non-reduction in their salary on transfer under section 183 while section 184 imposes the bar on recruitment to the extent provided therein. The financial transition is provided for under section 185. Electoral transition is subject of section 186 and transition timeframe is 1pid down under section 187. Both these sections 186 and 187 are reproduced as under:-- 186. Electoral Transition.---(1) Notwithstanding anything contained hereinbefore, the first Zila Councils, Taluka Councils, Town Councils arid Union Councils constituted under this Ordinance shall be deemed to be validly constituted if sixty per cent. Seats thereof are filled in the elections held under the Sindh Local Government Elections Ordinance, 2000 (X of 2000). (1-A) Where local council has been validly constituted under, subsection (1), but seats of Nazim and Naib Nazim of the corresponding level have not been filled, the concerned Council shall elect officiating Nazim and Naib Nazim from amongst its members until their seats are filled through by- election. (2) In any local area in which this Ordinance is in force but a relevant Local Government is not validly constituted due to natural calamity or conditions beyond human control, the Government, may empower any person or persons to perform all or any of the functions of that Local Government under this Ordinance till the elected Government assumes the charge of the office. 187. Transitional timeframe.---All actions required for giving effect to the provisions of this Ordinance and transition to the Local Government systems set up…
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