Ghulam Mustafa etc. vs Commissioner etc.

Form No: HCJD/C-21

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT.

W.P.No.14024/2013.

Ghulam Mustafa etc.

Vs.

The Commissioner, etc.

S.No. of Date of Order with signature of Judge, and that of order/ order/ parties or counsel, where necessary. proceeding proceeding

19.12.2013. Haji Muhammad Tariq Aziz Khokhar, Advocate, for the petitioners (in W.P. No.14024/2013). M/s M. Aftab Alam Yasir and Kamal Farid Malik, Advocates, for petitioners in W.Ps. No.14023 and 14757 of 2013.

Rana Muhammad Hussain, AAG alongwith Syed Masood Ahmad Shah, Law Officer, on behalf of respondents No.1-3.

Sardar Sami-ud-Din Mazari, Advocate, for private respondents.

This order will dispose of this writ petition No.14024/2013 alongwith connected writ petitions No.14023 and 14757 of 2013 as in all these writ petitions common questions of law and facts are involved.

2.In these writ petitions, the petitioners have challenged the preliminary list of Wards in Municipal Committee Kot Mithan and request is made that status of Union Council No.46 Basti Mohib Ali and Union Council No.48 Rakh Kot Mithan may be restored to its original position. Further prayer is made that delimitation be carried out only to the extent of Union Council No.47 now converted into Municipal Committee Kot Mithan.

3.Learned counsels for the petitioners argued that the preliminary list of delimitation issued by Delimitation Authority on 21.11.2013 of Municipal Committee Kot Mithan is not warranted by law. Submits that by virtue of notification dated 09.11.2013 read with notification dated 18.11.2013, the delimitation of the area could only be confined to Union Council Kot Mithan which was declared as Municipal Committee and no further rural or urban area could be included in the said Municipal Committee by the Delimitation Officer or Delimitation Authority without a notification by the Provincial Government. Further submits that when Union Council Kot Mithan No.47 was declared as Municipal Committee vide notification dated 09.11.2013, it consists of only a single Mauza namely Kot Mithan Jadeed. This notification was issued in exceptional circumstances u/s 11(4)(b)(i) of the Punjab Local Government Act, 2013 (Act 2013) as the population of said Municipal Committee was less than 30,000, therefore, the delimitation could only be confined to the area of Union Council Kot Mithan No.47, however, while carrying out the delimitation process under notification dated 18.11.2013, the respondents have illegally and unlawfully included Union Council No.46 Basti Mohib Ali and Union Council No.48 Rakh Kot Mithan in the Municipal Committee. Submit that once the settlement of area of Union Council has been made by the Government u/s 6 of the Act 2013, then respondents have no lawful authority to modify it or change its territorial limits in the garb of delimitation process. Further contends that Union Council No.46 Basti Mohib Ali and Mauza Rakh Kot Mithan are agricultural and rural areas which cannot be made part of Municipal Committee Kot Mithan without notification of the Provincial Government. Further contends that the constitution of Municipal Committee is also against the principle of territorial unity and uniform population.

Contends that the conversion of rural area into a Municipal Committee has deprived the petitioners from the facilities which could be allowed to them by the Provincial Government instead of Municipal Committee. Contends that there is no delegation of powers to the respondents u/s 146 of the Act 2013, therefore, the whole exercise was invalid. Adds that section 10-A of the Act 2013 does not debar this Court from declaring the entire delimitation process illegal which on the face of it is contrary to the scheme of the Act

4.Conversely the learned counsels for the respondents No.1 to 3 argued that in view of bar of section 10-A of the Act 2013, after the schedule of election, the delimitation of the union councils and municipal committee cannot be reviewed or corrected. Further submits that the Municipal Committee Kot Mithan was lawfully constituted and the area of Union Council No.46 Basti Mohib and Union Council No.48 Rakh Kot Mithan were lawfully included in the said Municipal Committee being peri-urban area. The learned counsel for the respondents No.1 to 3 further referred to various notifications including notification dated 28.09.2013, 07.10.2013, 09.11.2013, 18.11.2013 and 04.12.2013 to argue that Delimitation Officer and Delimitation Authority had the jurisdiction to carry out the delimitation of Municipal Committee Kot Mithan. Further submits that the principle of territorial unity and uniform population has not been violated in constitution of the Municipal Committee or the Union Council.

5.The learned counsel for the private respondents adopted the arguments of learned counsel for the respondents No.1 to 3 and further submits that the Delimitation Authority had the power to delimit the Municipal Committee Kot Mithan and include peri-urban area therein in view of the notification dated 28.09.2013

issued u/s 146 of the Act 2013. Further submits that the petitioners themselves approached the Delimitation Authority to exclude certain Mauzas from one Union Council and add the same to another Union Council which request was allowed by the Delimitation Authority on 10.11.2013, therefore, at this stage, the petitioner is estopped to argue that the Delimitation Authority has no jurisdiction in the matter. Further contends that the Union Council No.46 Basti Mohib Ali and Union Council No.48 Rakh Kot Mithan was constituted by the Delimitation Officer and Delimitation Authority under the delegated powers of the Provincial Government and once they had the power to constitute such union council, this power also include the power to change the boundaries of these union councils. Further contends that the petitioners earlier filed a writ petition No.11954/2013 and they themselves admitted that the area of Basti Mohib Ali and Mauza Rakh Kot Mithan is a peri-urban area, therefore, inclusion of this area in Municipal Committee is not illegal. Further contends that by inclusion of this area, the inhabitants of the area will be provided with municipal facilities which will improve their standard of life, therefore, these petitions have no merits.

6.I have given my anxious consideration to the contentions of learned counsel for the parties and also gone through the record with their assistance.

7.The perusal of record shows that the Government of Punjab vide notification No.SOR(LG)46-37/2013(Gen.) dated 28.09.2013, in exercise of powers conferred u/s 6 read with section 11 of the Act 2013 divided various Districts into local area as specified in column No.4 of the said notification. Relevant column regarding District Rajanpur which is subject matter of these writ petitions, is reproduced hereunder:-

Sr. Name of Name of Name of Local Area No. Division District

Rajanpur District Council Rajanpur Municipal Committee Rajanpur Municipal Committee Rojhan Municipal Committee Jampur

The Provincial Government vide notification dated 09.11.2013 in partial modification of the aforesaid notification dated 28.09.2013, in exercise of the powers conferred u/s 11(4)(b)(i) of the Act 2013 declared the Union Council Kot Mithan in Tehsil and District Rajanpur as Municipal Committee Rajanpur. However, at that time as the elections were already announced, therefore, the notification provided that the delimitation will take place after the Local Government Elections and territorial limits of the Municipal Committee Kot Mithan shall be determined after delimitation of local area under Rules 2013. It is expedient to reproduce the aforesaid notification dated 09.11.2013 as under:- “No.SOR(LG)46-33/2013. In partial modification of this Department’s notification of even number dated 26.09.2013 and in exercise of the powers conferred under section 11(4)(b)(i) of the Punjab Local government Act, 2013 (XVIII of 2013), Government of the Punjab is pleased to declare the Union Council Kot Mithan in Tehsil and District Rajanpur as Municipal Committee, Kot Mithan. The Delimitation will however, take place after the Local Government Elections, 2013.

2.The territorial limits of Municipal Committee, Kot Mithan shall be determined after delimitation of local areas under the Punjab Local government (Delimitation) Rules, 2013.”

8.Subsequently as the election was postponed, the Government of Punjab issued another notification dated 18.11.2013 directing the Delimitation Officer, Rajanpur to

complete the delimitation of Municipal Committee Kot Mithan in accordance with Rules. It is expedient to reproduce the relevant notification dated 18.11.2013 as under:-

“DELIMITATION OF LOCAL AREAS UNDER

DELIMITATION RULES, 2013:

The undersigned is directed to refer to the subject and to state that Union council, Kot Mithan has been declared as Municipal Committee vide notification of even number dated 09.11.2013 (copy enclosed). The delimitation of Municipal Committee Kot Mithan has not yet been carried out.

2.Since the Election Commission of Pakistan vide Notification dated 13.11.2013 (copy enclosed) has recalled the Election Schedule, you are, therefore, requested to complete the delimitation of Municipal Committee Kot Mithan strictly in accordance with the Punjab Local Governments (Delimitation) Rules, 2013 and guidelines issued thereunder as per Schedule attached herewith.”

In pursuance to the aforesaid notification, the Delimitation Officer determined the territorial limits of the Municipal Committee Kot Mithan and completed its delimitation in accordance with Rules vide notification dated 04.12.2013. It is expedient to reproduce the aforesaid notification as under:- “As a result of constitution of the Municipal Committee Kot Mithan by the Government of the Punjab, Local Government and Rural Development Department, Punjab, Lahore vide Notification SOR(LG)46-33/2013 dated 09.11.2013, the peri urban areas of the Union Council 46 Basti Mohib Ali and Union Council No.48 Rakh Kot Mithan are included in the Municipal Committee Kot Mithan in the public interest vide letter No.SOR(LG)38-11/2013 dated 07.10.2013 issued by the Government of the Punjab, Local Government and Rural Development, Punjab, Lahore. The remaining rural areas of UC No.46 is included in Union Council Rakh Kot Mithan as per detail given below:-

Name of Area included Population Rural Area Population Sr.

Union into MC Kot of Mauza included in Union of Mauza No.

Council Mithan Council Rakh Kot Mithan Basti Mohib-I 4815 Basti Mohib Ali 298

Basti Kotla 3557 Kotla Hussain-II 415 Mohib Ali Hussain-I Shahpur 2142 Kot Mithan 868 Katcha

Kot Mithan Pacca 442

2 Rakh Kot Rakh Kot 2100 Rakh Kot Mithan 3093 Mithan Mithan

In order to add peri urban area (adjoining urbanized area) which was beyond the limit of existing urban union councils in the Urban Local Government, another notification dated 07.10.2013 was issued by the Government of Punjab authorizing the Delimitation Officer to include the said areas in the Urban Local Governments.

9.The perusal of aforesaid notifications makes it abundantly clear that the Municipal Committee Kot Mithan was constituted under notification dated 28.09.2013 partially modified vide a notification dated 09.11.2013 and the Delimitation Officer was duly authorized under notification dated 18.11.2013 to carry out the delimitation of Municipal Committee and even the territorial limit of Municipal Committee was allowed to be determined as per notification dated 09.11.2013. There is no dispute on the issue that the area of Basti Mohib Ali and Rakh Kot Mithan was treated as peri-urbanized area by delimitation officer and included in the Municipal Committee Kot Mithan being peri-urbanized area which could be done under the notification dated 07.10.2013 specifically issued regarding the Urban Local Governments notified under notification dated 28.09.2013 which notification after modification on

09.11.2013 resulted into constitution of Municipal Committee Kot Mithan.

10.The argument of learned counsels for the petitioners that the Delimitation Officer and Delimitation Authority had no jurisdiction in the matter to carry out the process of delimitation or issue notification dated 04.12.2013 is misconceived. U/s 146 of the Act, 2013, the Provincial Government can delegate any of its function under the Act to an officer subordinate to it. Under said provision of section 146, the Government of Punjab issued notification No.SOR (LG)38-11/2013/2013 dated 28.09.2013 by virtue of which the Delimitation Officers were given the power provided under rule 8 of the Rules 2013, as well as in the aforesaid notification. It is relevant to reproduce the aforesaid notification as under:- “No.SOR(LG)38-11/2013/2013. In exercise of the powers conferred under subsection (1) of Section 146 of the Punjab Local Government Act 2013(XVIII of 2013), Government of the Punjab hereby delegates the following powers vested under First Schedule of the Act ibid and Rule-8 of the Punjab Local Governments (Delimitation) Rules, 2013 to Delimitation Officers, appointed under Rule-5 of the rules ibid, within their jurisdiction:

1.To determine and notify the number of Union Councils in a District Council on the basis of population of the District council concerned;

2.To determine and notify the number of wards in a Municipal Committee which shall not be less than eleven and more than fifty;

3.To determine and notify the number of Union Councils in a Municipal Corporation on the basis of population of the Municipal Corporation;

4.To determine and notify the number of Union Councils in Metropolitan Corporation which shall not be less than one hundred and fifty union councils; and

5.To notify a Union Council or ward on the basis of final list of Union Councils and wards published under rule 7 of the Delimitation Rules, 2013 containing details of areas included in a Union Council or a Ward.”

It is also relevant to reproduce rule 8 of the Rules 2013 as under:- “Notification of Union Councils and wards:- The Government shall issue the notification of a Union Council or wards on the basis of final list of Union Councils and wards published under rule 7 containing details of area included in a Union council or a Ward”.

11.The perusal of aforesaid notification and rule 8 shows that the Delimitation Officer had the power to issue notification regarding the union councils, wards and also to determine and notify the number of union councils and number of wards in the Municipal Committee, therefore, the notification dated 04.12.2013 giving detail of Mauzas in Municipal Committee Kot Mithan was within jurisdictional power of the Delimitation Officer. Further the Government has also issued notification No.SOR(LG)38-11/2013 dated 28.09.2013 under Rule 5 of the Rules 2013 for appointment of Delimitation Officers as under:- “No.SOR(LG)38-11/2013. In exercise of the powers conferred under Rule 5 of the Punjab Local Governments (Delimitation) Rules, 2013, Government of the Punjab hereby appoints all the District Coordination Officers in the Punjab as Delimitation Officers and all Assistant Commissioners as Assistant Delimitation Officers for the purpose of delimitation of Union Councils and Wards or for the revision of such delimitation under the rules ibid, within their jurisdiction, with immediate effect.”

Another notification No.SOR(LG)38-11/2013 dated 28.09.2013 under rule 6 for appointment of Delimitation Authority was issued and is reproduced hereunder:- “No.SOR(LG)38-11/2013. In exercise of the powers conferred under Rule 6 of the Punjab Local Governments (Delimitation) Rules, 2013, Government of the Punjab hereby appoints all the Divisional Commissioners in the Punjab as Delimitation Authorities for deciding public objections and suggestions with respect to the

proposed delimitation of Union Councils or wards, within their jurisdiction, with immediate effect.”

12.The perusal of these notifications shows that the Assistant Delimitation Officer, Delimitation Officer and Delimitation Authority were duly appointed under rule 5 and 6 of the Rules 2013. As per these notifications and rules, the Delimitation Officer had the jurisdiction to carry out delimitation of the Union Councils and wards or even for its revision whereas under rule 6, the Delimitation Officer will call for proposals, objections, suggestions and recommendations and the Delimitation Authority could make further changes in the delimitation of union councils and wards. Therefore, it cannot be argued that the functionaries, including Delimitation Officer and Delimitation Authority had no jurisdiction to include certain Mauzas in Municipal Committee Kot Mithan.

13.In view of above, I find no substance in the arguments of learned counsel for the petitioner that inclusion of Basti Mohib Ali and Rakh Kot Mithan in Municipal Committee Kot Mithan is without jurisdiction.

14.As far as prayer of the petitioners that principle of territorial unity and uniform population has been violated, therefore, delimitation of said union council and wards should be revised. It is admitted position that the process of delimitation of union councils and wards of the municipal committees was carried out by the Delimitation Officers and Delimitation Authorities under the Act, 2013 read with Rules 2013. The said delimitation process has already been finalized by the Delimitation Officers under rule 5 of the Rules 2013 and the Delimitation Authorities have also decided all the proposals, objections and recommendations under rule 6 of the Rules 2013 and final Notification delimiting the union councils and wards has already been issued. In all these constitutional petitions, the petitioners

are seeking the revision or correction of the delimitation of union councils or wards and praying that certain Mauzas and wards be excluded from one union council or municipal committee and be added into another union council or municipal committee respectively.

15.By virtue of Ordinance VII of 2013 published in Official Gazette Notification on 09.11.2013, section 10-A was inserted in the Punjab Local Government Act, 2013 (Act XVIII of 2013). It is expedient to reproduce the aforesaid section as under:- “10-A. Finality of delimitation,- A court, officer or authority shall not review or correct any delimitation of a Union Council or ward after the notification of the election schedule”.

On 19.12.2013, the Election Commission of Pakistan in exercise of powers conferred upon it under subsection (1) of section 19 of the Act 2013 read with sub-rule (1) of Rule 11 of the Punjab Local Governments (Conduct of Elections) Rules 2013 and all other enabling provisions in that behalf, issued the schedule for election to fill the categories of seats of Chairman, Vice Chairman, General Members, Women Members, Peasant and Worker Members, Youth Members, Non-Muslim Members in each Union Council/Ward in a Local Government of the Province of Punjab. As per schedule for election, notice inviting nomination papers to be issued by the Returning Officers on 20.12.2013 and after completing the entire process, the declaration of result by the Returning Officers are to be announced on 02.02.2014.

16.That as per section 10-A of the Act, once the election schedule is announced, no court, officer or authority shall review or correct any delimitation of union council or a ward. The aforesaid ouster clause of section 10-A of the Act being a sub-constitutional legislation cannot oust the

constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. As per law laid down by the august Supreme Court even in a case of constitutional ouster of jurisdiction “acts” which are coram-non-judice, without jurisdiction or malafide are not immune from jurisdiction of judicial review by this Court. In this regard, reliance is placed on Federation of Pakistan through Secretary Defence and others Vs. Abdul Basit (2012 SCMR 1229), Syed Hassan Mehdi and others Vs. Province of Punjab and others (PLD 2011 SC 916), Munir Hussain Bhatti, Advocate and others Vs. Federation of Pakistan and another (PLD 2011 SC 407), Chief Justice of Pakistan Iftikhar Muhammad Chaudhry Vs. President of Pakistan through Secretary and others ( PLD 2010 SC 61), Hafiz Muhammad Siddique Anwar Vs. Faisalabad Development Authority and others (2007 SCMR 1126), Begum Syeda Azra Masood Vs. Begum Noshaba Moeen and others (2007 SCMR 914), Allied Bank of Pakistan Ltd. Vs. Khalid Farooq (1991 SCMR 599), Raja Muhammad Dad Khan, Advocate Vs. West Pakistan Bar Council, Lahore and another (PLD 1975 SC 469), Mehr Din and 7 others Vs. Border Area Committee, Bahawalnagar and another (PLD 1970 SC 311), High Court Bar Association and others Vs. Government of Balochistan through Secretary, Home and Tribal Affairs Department and 6 others (PLD 2013 Balochistan 75), Muzaffar Ahmed Vs. Pakistan through Secretary and others (1991 MLD 1142).

17.As discussed above, no doubt the word “Court” used in section 10-A does not apply to “Constitutional Courts”, and therefore, jurisdiction of this Court is not barred under section 10-A, however, as election schedule has already been announced, delimitation process has been finalized and all concerned including the Election Commission, Local Administration, political parties, candidates, voters and the

public at large are geared up for the upcoming Local Government Elections as per schedule of notification, therefore, at this stage, the review or correct of delimitation of the union council or ward in a constitution jurisdiction will hamper the entire process and time line given in the schedule for Local Government Election. This view is also in consonance with the intention of the legislation as reflected in section 10-A of the Act 2013. The learned Division Bench of this Court while dealing with issue of delimitation after Notification dated 09.12.2013 in case of Khizar Hayat Vs. The Delimitation Authority etc. (ICA No.349/2013) held as under:- “This Intra Court Appeal has arisen out of a writ petition, wherein the question of delimitation of the constituency was involved.

Section 10-A of the Punjab Local Government Act, 2013 (Act XVIII of 2013), specifically provides:- “A court, officer or authority shall not review or correct any delimitation of a Union Council or ward after the notification of the election schedule.” There is no dispute to the fact that the Notification No.F.4(1)/2012-LGE(P) has been issued by the Election Commission of Pakistan on 9th of December, 2013. In this view of the matter by announcement of election schedule, in terms of above reproduced clause 10-A of the Punjab Local Government Act, 2013, no order relating to the delimitation of Union Council or ward, can be passed. This Intra Court Appeal, therefore, is disposed of accordingly”.

In view of above discussion and the law laid down by the learned Division Bench of this Court, I am not inclined to interfere in the delimitation process of Union Councils and Wards at this stage, when the entire process of delimitation is already finalized by the Competent Authorities and election schedule is already announced. The argument of the learned counsel for the petitioner that section 10-A has been applied retrospectively is also misconceived, as section 10- A was introduced on 09.11.2013, whereas notification for

schedule of election was announced on 09.12.2013, hence it is not applied retrospectively. Even otherwise, it is settled principle of law that delimitation of constituencies based on geographical compactness and equal distribution of population is the function of the Delimitation Authority and unless there is jurisdictional defect, this Court cannot embark upon the factual inquiry on these issues. In this regard reliance is placed on Shahbaz Khan Vs. Election Commission of Pakistan through Election Commissioner Islamabad (PLD 2003 Lahore 125), Syed Maqbool Hussain Shah Vs. Punjab Local Councils Authority and others (1999 MLD 2813) and Amir Nawab vs. Election Commissioner and others (1990 CLC 749).

18.In view of above, I find no substance in this writ petition as well as in connected writ petitions, therefore, these are dismissed.

(Abid Aziz Sheikh) Judge

Approved for reporting.

Judge

Riaz Ahmad