Shahid Ahmad vs The Dco etc.

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN.

JUDICIAL DEPARTMENT

Case W.P.No.13689/2013 Shahid Ahmed Versus DCO etc.

S.No. of order Date of order Order with signature of Judge, and that of parties of Proceeding Proceeding counsel, where necessary 02.12.2013 Sardar Faisal Mehmood Tangwani, Advocate for the petitioner.

Rana Muhammad Hussain, AAG with Mr. Masood Ahmed, Law Officer for Commissioner and Mureed Hussain, Political Tehsildar.

This writ petition has been filed against Notification dated 04.11.2013 with the prayer that Mouza Bajal, Lohee, Darabhoo, Karkana Shum, Khakhaar be excluded from UC Mithwan Tuman Qaisrani and the earlier order of Delimitation Officer dated 09.10.2013 be maintained.

2.The learned counsel for the petitioner argued that the Delimitation Officer/DCO vide order dated 09.10.2013 has correctly included aforesaid the Mouzajat in UC Mithwan Tuman Qaisrani whereas the Commissioner/Delimitation authority has illegal, excluded these Mouzajat from Mithwan Tuman Qaisrani and included the same in Berote Mandwani Tuman Qaisrani. Submits that the impugned notification is violative of principles of geographical compactness equal distribution of population, therefore, the same is not sustainable.

3.Conversely, the learned Law Officers have argued that notification dated 04.11.2013 is legal and valid. Further submit that keeping in view the principles of territorial unity and equal distribution of population certain Mouzajat were added and excluded from UCs.

4.I have given my anxious consideration to the arguments of the learned counsel for the parties and also peruse the record appended with this petition.

5.The process and procedure of Delimitation of Union Council is prescribed under the Punjab Local Government Act, 2013 (XVIII of 2013) (hereinafter referred to Act) read with Punjab Local governments (Delimitation) Rules 2013 issued under section 144 of the Act (hereinafter referred to as Rules).

6.Union Council is defined u/s 2(ggg) of the Act, which read as under:- 2(ggg). “Union Council means an area notified as Union council under this Act”.

The delimitation of Union Council is prescribed u/s 8 of the Act and for ready reference, the same is reproduced hereunder:-

8.Delimitation of Union Councils- (1) A Union council shall be an area consisting of one or more revenue estates or, in the case of an area where revision of settlement under the law has not been taken place, one or more census villages or, in the case of an urban area, a census block or blocks as delimited for the purpose of the last proceeding census or a census block and a revenue estate, notified as such by the Government.

(2)As far as possible-

(a)the area of a Union council shall be a territorial unity;

(b)the boundaries of a union council shall not cross the limits of the Metropolitan Corporation, a Municipal Corporation, Municipal Committee or a District Council; and

(c)the population of union councils within a local government shall be uniform.

The identical provisions to Section 8 ibid is also provided in rule 4 of the Rules of 2013.

7.The perusal of the aforesaid provisions shows that it has been bifurcated into two parts. In the first part in Section 8(1) the word “shall” has been used therefore the same is mandatory, whereas in the second part in section 8(2), the words “as far as possible” are used which give discretion to the authorities and does not make this provision absolute and mandatory.

8.As per provision of section 8(2), as far as possible, the area of Union Council shall be a territorial unity, the boundaries of Union Council shall not cross limits of Metropolitan Corporation, Municipal Committee or a District Council and population of union councils shall be uniform.

9.In pursuance to Act and Rules, the guidelines are formulated for delimitation of Union Councils and wards (hereinafter referred to as guidelines). The guide line at Sr. No.2 is relevant, which is reproduced hereunder:- “2. The foremost principle for delimitation of Union Councils and the wards in a Municipal Committee is to have regard to the equal distributing of population, geographical compactness, existing boundaries of administrative units, facility of communications and public convenience”.

10.In view of the Act, rules and guidelines referred above, for delimitation of union council, the authorities are required to maintain existing boundaries, territorial unity, geographical contiguity and compactness, uniform and equal distribution of population, facility of communications and public convenience. These requirements must be basic consideration and as far as possible, must be followed by delimitation officer, however, where these requirements are not strictly followed, it should be through a reasoned order and he must not act in malafide, or in fanciful and haphazard manner.

11.Keeping in mind the aforesaid principle, I have gone through the record as well as the map produced by the Law Officers regarding concerned UC of tribal area. According to record the UC Mithwan Tuman Qaisrani comprising 77 villages having population of 27387 as per scheme 1998. Keeping in view the population and number of villages, the said UC was proposed to be divided into two UCs in the preliminary proposed delimitation which is reproduced as under:-

Sr.No. Name of preliminary No. of Population as per proposed UC villages census 1998

1.Mithwan Tuman 34 12959 Qaisrani

2.Berote Mandwani 43 14428 Tuman Qaisrani Total:- 77 27387

Before final delimitation, the parties were heard and report/comments of delimitation officer was called. According to the report the UC Mithwan Tuman Qaisrani have a scattered population and, therefore, objection/proposal made by the proposer was found to be correct and accordingly, the final notification was issued as under:-

Sr.No. Name of preliminary No. of Population as per proposed UC villages census 1998

1.Mithwan Tuman 36 12033 Qaisrani

2.Berote Mandwani 41 15354 Tuman Qaisrani Total:- 77 27387

The perusal of map shows that impugned Mouzajat are included in UC Mithwan Tuman Qaisrani and it makes out a geographical compact unit whereas the Mouzajat included in Berote Mandwani Tuman Qaisrani also shown to be geographically compact and principle of territorial unity has not been violated. The ratio of population in both the UCs i.e. 12033 in Mithwan Tuman Qaisrani whereas 15354 in Berote Mandwani Tuman Qaisrani is also not violative of principle of equal distribution of population, therefore, in my view, the principles of territorial unity and uniformity population has not been violated.

12.Even otherwise the delimitation of constituencies on the basis of geographical situation, contiguity, population and compactness is the function of authority who has already determined the same keeping in view the aforesaid principles and while exercising constitutional jurisdiction, unless impugned order is patently illegal, fanciful and malfide; this Court cannot embark upon an inquiry of facts pertaining to aforesaid factors. In this regard, reliance is placed on the judgments of learned Division Bench Shahbaz Khan vs. Election Commission of Pakistan through Election Commissioner Islambad (PLD 2003 Lahore 125); Amir Nawab vs. Election Commissioner and others (1990 CLC 749) and the learned Single Bench in Syed Maqbool Husain Shah vs. Punjab Local Councils Authority and others (1999 MLD 2813).

13.For what has been discussed above, this writ petition being without merits is hereby dismissed.

(ABID AZIZ SHEIKH)

JUDGE

Approved for reporting.

JUDGE

Raza