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Petitioner: Haji MUAMMAD KIAMIL and another VS Respondent: GOVERNMENT OF SINDH through JUDGMENT
Court Name: Sindh High Court Judge(s): Shabbir Ahmed, Muhammad Mujeebullah Siddiqui Title:Haji MUAMMAD KIAMIL and another vs GOVERNMENT OF SINDH through
JUDGMENT
Reported As: 2002 MLD 762 Result: Petition allowed Judgment 15 Union Council Kazi Ahmed, Taluka Daulatpur.Circle-1 Charge-II7691 Circle-2 Charge 114462JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the following relief has been sought:-- (i) Declaration that the orders of delimitation passed by respondent No,2 as per Serial Nos.15 and 16 at Annexure "F" having being passed without lawful authority and are of no legal effect. (ii) Permanent injunction be issued restraining the respondents from acting upon the order of delimitation passed by respondent No,2 and directing respondents to maintain the delimitation as per Annexure "E". (iii) Any other relief this Honourable Court deems fit may be awarded. ' The relevant facts as stated in the petition are that the petitioner No,1 is resident of Muhalla Shoukat. Abad Qazi Ahmed Town, which is situated in Circle-II of Charge-II of last census block, while petitioner No,2 is resident of town Qazi Ahmed which is situated in Circle-I Charge-II of the last census block. For the purpose of Sindh Local Government 'Elections Ordinance, 2000 (Sindh Ordinance X of 2000) the delimitation proposals in respect of Qazi Ahmed were published by Notification dated 10-10-2000, by the respondent No,1 as follows:--
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Circle-3 Charge 114598 Part of Tapa Deran Deh Seendhal Kamal5362 Total 22113 15. Union Council Qazi Ahmed-IDeh Qazi Ahmed Circle-I Qazi Ahmed Town11048 7691 Total 18739 16. Union Council Qazi Ahmed-II. Taluka DaulatpurCircle-II Qazi Ahmed Town Circle-III Qazi Ahmed Town Deh Deeran Deh Seendhal Kamal4462 4598 7033 5362 Total 12835
48Union Council Qazi Ahmed-ITapa Qazi Ahmed, Deh Qazi Ahmed.1148 Tapa. Mehrab Wai (whole), Deh Mehrab Wai, Deh Kunro3234 2057 Part of Tapa Deran Deb Deeran7033 Total 23372 ' Two or three persons filed the objections to the above delimitation proposals. The respondent No,2 heard the objections, reserved the orders and subsequently passed the order of delimitation of Union Council Qazi Ahmed as under:--
' Being aggrieved with the changed delimitation and the publication of notification in this behalf, the petitioners have filed this petition on the following grounds:--- (a) That none of the objectors before the respondent No,2 claimed the delimitation as ordered by respondent No,2, the order is illegal and liable to be ordered as such. (b) That the delimitation made as per Annexure-E were legal, convenient and in accordance with the provisions of Sindh Local Government Elections Ordinance, 2000. The respondent No,2 has assigned no reason or modification to set aside the delimitation and introduce the impugned delimitation of his own. (c) That the impugned delimitation has illegally divided the town of Qazi Ahmed into two parts, the respondent No,2 had no authority to pass such orders. (d) That the impugned delimitation besides being illegal, unjustified is inconvenient and will create complications in the administration of the affairs of Qazi Ahmed Town.
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(a)Circle-1 of Charge II7691 (b)Circle-2 of Charge II4462 (c) Circle-3 of Charge II4598 (d) Deh Seendhal Kama Total5362 22,113' Mr. Masood Ahmed Noorani learned Additional Advocate-General, Sindh, has filed parawise comments alongwith the enclosures received from respondent No 2. He has stated that the delimitation proposals in respect of Union Council Qazi Ahmed were notified on 10-10-2000, by the Government of Sindh Local Government Department as mentioned in the petition at Serial No,15. (Reproduced in the earlier part of this judgment) and notification was never issued regarding delimitation proposals of Union Council Qazi Ahmed as mentioned in the petition against Serial No,48. It is further stated that two persons namely Syed Qurban Ali Shah and Abdul Qadir Umar filed objections against formation of Union Council Qazi Ahmed by the Deputy Commissioner and delimitation officer, before the respondent No,2 suggesting certain adjustments in Union Council Qazi Ahmed. Accordingly, the Commissioner Sukkur Division heard the objections filed by both the petitioners and order of delimitation was made on 20-10-2000, which was communicated to the Secretary, Government of Sindh vide letter, dated 3-11-2000 which reads as follows:-- "To, ' The Secretary to Government of Sindh, Local Government, Rural Development and Katchi Abadi Department, Karachi ' Subject: DELIMITATION OF TOWN COMMITTEE QAZI AHMED. ' Initially the proposal for delimitation of Town Committee Qazi Ahmed was made as under:--
2. As per Government Notification No,SO9C-IV)LG-MC-II(8)/- 120 dated 10-10-2000, the objections on the abovementioned delimitation proposal and other proposals of District Nawabshah were invited and objections were heard on 20-10-2000 at Nawabshah. 3. The objections were heard at length and disposed of on merits keeping in view the prescribed parameters. Two parameters are quite important and critical: (i) The population was required to be kept some where near average population of the district. The deviation up to the extent of 2% was permissible in exceptional cases. (ii) It was also required that in normal circumstances the Tapas should not be broken. However, in exceptional cases, Tapa can be broken but in no way a Deh is to be broken. ' The proposed Union Council Qazi Ahmed comprised as under:-- (i) Full Deh on Seendhal Kamal. (ii) Part of Deh Qazi Ahmed. 5. There were objections from Syed Qurban Ali Shah, Abdul Qadir and others that full Deh Kazi Ahmed and Deh Seendhal Kamal may be excluded (Copies of objections enclosed.) 6. However, after listening to the objectors and keeping in view the abovementioned parameters, the following order was passed:- "Union Council Kazi Ahmed has peculiar situation. The existing position of the Town Committee Kazi Ahmed is that it includes part of Deh Kazi Ahmed and part of Deh Seendhal Kamal. The delimitation parameters are that the Deh cannot be broken. There are two groups in Kazi Ahmed. One group is demanding inclusion of entire Deh Seendhal Kamal and other group of demanding inclusion of entire Deh Kazi Ahmed. The demand of each group is according to his political convenience. In accordance with the delimitation parameters, the following two Union Councils are formed:--
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(a)Union Council Kazi Ahmed- I: 1. Deh Kazi Ahmed (full) 11,048 2. Circle of Kazi Ahmed Town. Total7,691 18,739 (b)Union Council Kazi Ahmed- II: 1. Circle-2, of Kazi Ahmed Town.4,462 2. Cirlce-3 of Kazi Ahmed Town.4,598 3. Deh Deeran. 7,033 4. Deh Seendhal Kamal (full). Total5,362 21,455
' It is, however, submitted that the Government may listen both the parties and pass orders as deemed proper. (Sd.) Nisar Ahmed Siddiqui, Commissioner, Sukkur Division." ' It is further stated in the comments filed by the respondent No,2, that the petitioner made representation before the Chief Secretary, Sindh and Secretary, Local Government. This representation was presented to the Chief Secretary, Sindh on 13-11-2000, and finally summary was submitted by the Secretary, Local Government to the Government of Sindh. The Government of Sindh was pleased to reject the petition and maintain the delimitation as notified vide Gazette Notification dated 21-11-2000. It has been submitted that after the rejection of representation, this petition has been made at a belated stage when the election process has already started and the nomination papers have been filed. ' The respondent No,2 has filed copy of objection made by Abdul Qadir son of Haji Ghulam Hussain Unar before the respondent No,2. It is stated in the objection that it pertains to delimitation proposals as regard Union Council Qazi Ahmed, Taluka Daulatpur, District Nawabshah shown at. Serial No,48 of the delimitation proposals. In respect of Union Council Qazi Ahmed at Serial No,48 it was stated that it was violative of the letter, dated 25-7-2000 issued by Commissioner, Sukkur Division as well as the instructions in pursuance of the meeting held under Chairmanship of Senior Member, Board of Revenue. Instructions were issued that no bifurcation of Tapa was to be made, but Tapa has been bifurcated. It was further stated in the objection that the name of Union Council Qazi Ahmed at Serial No,48 be changed, as Union Council Pan Peeral, as Union Council Qazi Ahmed is already at Serial No,15 and if two Union Councils are allowed to exist with same names, it will create lot of problems in correspondence; administration and other matters. It was proposed in the objection that Deh Qazi Ahmed be excluded from proposed Union Council Qazi Ahmed at Serial No,48 and included in the new Union Council Qazi Ahmed. It was further proposed that Deh Deeran is part of Tapa Deeran, therefor, it be excluded from Union Council Qazi Ahmed and included in Union Council Thatt. Mr. Abdul Qadir further proposed that Tapa Patt Peeral consisting of Deh Patt Peeral and Deh Seendhal Kamal be included in Union Council Qazi Ahmed by re-naming as U.C. Patt Peeral. ' The objections filed by Syed Qurban Ali Shah were in respect of delimitation proposals regarding Union Council Qazi Ahmed, Taluka Daultpur, District Nawabshah shown at Serial No,15 of the delimitation proposals. It was stated that the delimitation proposals were violative of the instructions issued by Commissioner Sukkur, and meeting held under the Chairmanship of Senior
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1.Town Committee Qazi Ahmed.16753 2.Deh Qazi Ahmed Total11048 27801Member, Board of Revenue, dated 25-7-2000 and 24-7-2000 respectively. Mr. Qurban Ali Shah also stated that Tapa has been bifurcated against the instructions. He pointed out that Deh Seendhal Kamal is part of Tapa Deeran. It may be allowed to remain as part of Deeran and excluded from Union Council Qazi Ahmed. It was .Further proposed that looking to the name of Union Council Qazi Ahmed, justice requires that Dch Qazi Ahmed which is situated in same Tapa Qazi Ahmed be included in Union Council Qazi Ahmed by excluding Deh Seendhal Kamal. The population of the proposed Union Council was as under:
'Copy of representation made to Chief Secretary, Government of Sindh and Secretary, Local Government of Sindh sent on 13-11-2000 by 10 persons including petitioner No,2 Haji Allah Bux Unar has also been produced by ,respondent No,2. It is stated in this representation that no objector had suggested for dividing of Urban area into two portions, yet the learned Commissioner, Sukkur Division on his own has unnecessarily divided the Urban area of Town Qazi Ahmed into two portions. By doing so the area of Town Committee Qazi Ahmed which consists of Circle-1, Circle-11 and Circle-Ill of Charge II ,f Census Block have been unnecessarily divided though the basic principle and guidelines clearly direct for maintaining the Census Block Circles. And Census Charges. It is further stated in the representation as follows:- "It is further submitted that by dividing the town area of Qazi Ahmed City into two portions it has been disregarded chat basis civic facilities such as water supply. Severage, electricity, gas etc. And other institutions like Hospital, Telephone or Telegraph and many other services which arc running smoothly under one administration could never be effectively and practically managed in this divided position." ' On 8-3-2001, when the petition' was being argued Mr. Naimatullah Soomro, Advocate filed application under Order I, rule. 10, C.P.0 on behalf of Mr. Qurban Ali Shah son of Hussain Ali and Mr Khan Muhammad son of Muhammad Saleh stating that Mr. Qurban Ali Shah is candidate for one seat of Muslim General. (Male) U.C. Qazi Ahmed I, whereas applicant No,2 is candidate of labour seat in U.C. Qazi Ahmed II. After narrating the facts already contained in the comments filed by the respondent No,2. They submitted that they may be joined as necessary party. They stated that the Election Schedule has been notified and the process of acceptance of the nomination of the candidates has been completed on 5-3-2001, and the petitioner No,2 has also filed the nomination form of U.C. Qazi Ahmed which has been accepted and the petitioner .No,2 has accepted the delimitation and thus is now estopped from challenging the same. It has been stated that not only Town Committee Qazi Ahmed but several other Town Committees in District Nawabshah have been bifurcated. ' In view of urgent nature of the proceedings, we allowed Mr. Naimatullah Soomro to address arguments on behalf of intervenors. Copies of the application were supplied to the learned counsel for the petitioner and the learned A.A.-G. ' The petitioner Haji Muhammad Kamil filed affidavit in rejoinder in reply to the comments and the application of intervenors. It is stated in the affidavit-in-rejoinder that Qazi Ahmed Town consists of Csircles/I, If and III of Charge II as well as parties of two Dehs Qazi Ahmed and Seendhal Kamal. This entire area of Qazi Ahmed is urban area from 1974 and the remaining area of two Dehs is rural since then. It is further submitted in the affidavit-in-rejoinder that according to the provisions of Sindh Local Government Elections Ordinance (X of 2000), rules, regulations, instructions and guidelines issued thereunder, the urban and rural Union Councils had to be delimited separately and the most important parameter for delimitation is that the urban population was not to be
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(a) Circle-I of Charge II7691 (b) Circle-II of Charge II4462 (c) Circle-III of Charge II4598 (d) Deh Seendhal Kamal5362 22113merged with the rural population but the rural population could be amalgamated with the urban population. It is contended that under the impugned delimitation Qazi Ahmed Town has been divided into two pieces and consequently the urban character of the Town has been finished. ' We have heard Mr. Jhamat Jethanand learned counsel for the petitioner Mr. Naimatullah Soomro,, Advocate for the intervenors and Mr. Masood A. Noorani, Additional Advocate-General for the respondents Nos. I and 2. ' The main contention raised by Mr. Jhamat is that under the provisions of Sindh Local Council Elections Ordinance, 2000 (hereinafter referred to as Election Ordinance). A local area comprising a town is to be kept intact and it cannot be de-eliminated. However, if the competent authorities so deemed fit can include certain rural areas in the urban area in fresh delimitation. His contention is that in the proposed de-limitation notified, inviting objections, although Qazi Ahmed was notified as Union Council instead of Town Committee, but still limits of existing Town Committee were left intact. He has submitted that a part of Deh Seendhal Kamal Tapa Deeran was already included in the limits of Town Committee Qazi Ahmed in the old delimitation and in the proposed delimitation entire Deh Seendhal Kamal was included in the proposed Union Council Qazi Ahmed appearing at Serial No,15 of the notification containing proposed delimitation. Another U.C. With the same name was notified at Serial No,48 comprising of Deh Qazi Ahmed, Tapa Qazi Ahmed, Deh Mehrab Wai, Tapa Mehrab Wai Deh Kunro, part of Deh Deeran Tapa Deeran. Nobody raised objection to the inclusion of entire existing limits of Town Committee Qazi Ahmed in Union Council Qazi Ahmed, Taluka Daulatpur notified at Serial No,15, and the objections were raised to the inclusion of certain in rural areas in Union Council Qazi Ahmed-II. Objections were raised to the forming of Two Union Councils in the same name and it was proposed by Mr. Abdul Qadir that the name of Union Council Qazi Ahmed-II be changed in order to remove the confusion. Mr. Jhamat has submitted that the respondent No,2 Commissioner Sukkur Division, has confused whole affairs and has changed the delimitation on his own in flagrant violation of the provisions contained in the Election Ordinance. In support of his contention Mr. Jhamat has taken us through the comments filed by the respondent No,2. Respondent No,2 has submitted in the comments that Union Council Qazi Ahmed was notified at Serial No,15 and not at Serial No,48 of the proposed delimitation. This statement is factually incorrect as the copy of proposed delimitation has been produced to contradict the version. Mr. Jhamat has read the contents of the letter of Commissioner, Sukkur Division dated 3-11-2000, addressed to the Secretary, Government of Sindh Local Government, Rural Department and Katchi Abadi Department, in which it is stated that initially the proposal of delimitation of Town Committee Qazi Ahmed was made as under:-
' Mr. Jhamat has pointed out that the confusion_on the part of delimitation authorities and particularly the respondent No,2 is apparent from the fact that in the proposed delimitation notification, the name of Local Government, shown at Serial No,15 in Union Council Qazi Ahmed, Taluka Daulatpur while, the learned Commissioner has stated in the letter dated 3-11-2000 that initially it was proposed for delimitation of Town Committee Qazi Ahmed. Mr. Jhamat has vehemently argued that in the process of delimitation the respondent No,2 lost sight of the distinction between the local Government having urban characteristic and the local
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Government having the rural characteristic. He mixed up the issues and consequently applied the principle meant for rural Government to the Urban Government. Mr. Jhamat has pointed out that in his letter dated 3-11-2000 the respondent No,2, has described two parameters which were kept by him in view. The first, that the population was required to be kept some where near average population of the District and deviation up to the extent of 20 per cent. Was permissible in exceptional cases and that secondly, in normal circumstances the Tapas cannot be broken, however, in exceptional cases Tapa can be broken but in no way Deh is to be broken. Thereafter, respondent No,2 has stated that the proposed Union Council Qazi Ahmed comprised full Deh of Seendhal Kamal, part of Deh Qazi Ahmed. Mr. Thamat has further pointed out that the respondent No,2 has observed in his order that Union Council Qazi Ahmed has peculiar situation. The existing position of Town Committee Qazi Ahmed is that it includes part of Deh Qazi Ahmed and part of Deh Seendhal Kamal. The delimitation parameter is that Deh cannot be broken. There are two groups in Qazi Ahmed one group is demanding inclusion of entire Deli Seendhal Kamal and other group is. Demanding inclusion of entire Deh Qazi Ahmed The demand of each group is according to his political convenience. Thereafter, the respondent No,2 himself formed Union Council Qazi Ahmed Nol and Union Council- Qazi Ahmed No,II bifurcating Qazi Ahmed Town, in complete obligation of the provisions that a town government is to be established for town. The result is that ,Qazi Ahmed town has been eliminated for the purpose of election and forming of town government. Town has been deprived of a town Government and instead two Union Councils have been formed which are of rural characteristic. Urban population and town government have been degraded to rural population and union government. ' Mr. Jhamat in support of his contention has taken us through the various provisions contained in the Election Ordinance. He has referred to the provisions contained in sections 2(6), 3 and 4 of the Election Ordinance, which reads as follows:-.- "Section 2(6) 'Local Government' means a district government, a city district government, a Taluka government, a town government and a union government, 3. (1) For the purposes of this Ordinance-- (a) Local areas shall be districts, towns, Talukas and Unions; (b) the Government may, by notification declare-- (i) any area comprising one or more Dehs and in the case of an area with urban characteristic comprising one or more population census blocks delimited for the last preceding census to be a union; and (ii) any area to be a town, a Taluka or a district. (2) As far as may be--(a) the area of a union shall be a territorial unity; (b) the area of union shall not cross the limits of a town or.a Taluka; (c) the area of a union in a Taluka shall comprise a whole number of Tapas, or a Tapa may contain a .Number of whole unions; provided that in specific cases the Government may, for reasons to be recorded, waive the aforesaid conditions; (d) the area of a union ln a city district or in a union with urban characterstic shall comprise a whole number of census blocks as delimited for the purpose of the last preceding population census; (e) a Taluka or a town shall comprise a number of unions as appropriate, and (t) the population of unions within a district shall be similar. (3) Government or an officer authorized by it shall invite objections on proposals relating to delimitation of unions and after giving an opportunity of being heard disposed them of in such manner as may be deemed fit. 4. Constitution.--(1) Subject to the provisions of this Ordinance, there shall be constituted-- (a) a district government for a district.
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(b) a city government in a city district; (c) a Taluka government for a Taluka; (d) a town government for a town and (e) a Union government for a union. (2) Subject to the provisions of this Ordinance, every local government shall be a body corporate, known as the case may be, by the name of the district, Taluka, town or union or by such name or number as the district government may assign, and shall have perpetual succession and a common sale, with power to acquire and hold property, both movable and immovable, and transfer any property held by and to contract and to do all other things necessary for the purposes of its constitution and may sue and be sued in its corporate name." ' Mr. Jhamat has contended that the definition of Local Government contained in section 2(6) of the Election Ordinance, it means district government, a city government, a Taluka government, a town government, and a union government. Under section 3(1)(a) local area shall, be district town, Taluka and Unions. Under section 4(1)(d) a town government shall be constituted for a town. He has contended that the cumulative effect of the above provisions is that the existing towns prior to the promulgation of the Election Ordinance, have to remain intact and a town government is to be .Provided to such town. Mr. Jhamat has submitted that under section 3(2)(c), area of a Union Council in a Taluka shall comprise a whole number of Tapas, or a Tapa may contain number of whole unions, provided in specific cases Government may for reasons to be recorded waive the aforesaid conditions. While under section 3(2)(d) the area of Union in city district or a union with urban characteristic shall comprise a whole number of census blocks as delimited for the purpose of the last preceding population census. According to Mr. Jhamat the respondent No,2 has mixed up the provision contained in section 3(2)(c) with the provisions contained in clause (d) of subsection (2) of section 3. Instead of applying provisions contained under section 3(2)(d) for delimitation of Town Committee Qazi Ahmed, whereby the whole number of census blocks for the purpose of last preceding population census was to be kept intact, has wrongly applied the provisions contained in section 3(2)(c) which is in respect of Union in a Taluka, and has to comprise of whole number of Tapas. Mr. Jhamat has submitted that consequently, the delimitation made is violative of the provisions contained in the Election Ordinance, 2000, and therefore, the impugned notification dated 21-11-2000 is to be struck down to the extent of delimitations at Serial Nos.15 and 16 and fresh delimitations are to be notified whereafter the elections for the Local Council may be held by way of by-election and that the respondent may be restrained from holding the election in pursuance of the illegal de-limitation of Qazi Ahmed Town. ' On the other hand Mr. Masood A. Noorani, Additional Advocate-General and Mr. Naimuttalh Soomro, Advocate for intervenor have supported the impugned delimitation. They have also referred to the same provisions to which reference has been made by Mr. Jhamat. They have contended that it is provided in section 3(2) of the Election, Ordinance that the 'guidelines given therein shall be applied, as far as may be, meaning thereby that the Government has discretion to make deviation. There can be no cavil to the proposition. However, both the learned Advocates when confronted with the situation as to now population of Qazi Ahmed having a urban characteristic and having a Town Committee since 1974 can be deprived of a town government…
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