Shazia Joses Vs The Govt of KP

I

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) W.P. No. 902-A12022

Shazia Joses.

(Petitioner/s)

VS

Government of Khyber Pakhtunkhwa, through Secretary Law & Justice, Civil Secretariat, Peshowar.

(Respondent/s)

Present. Mr. Syed Hammad Hussain Shah Gilani, Advocate the petitioner.

Mr. Wajahat Hussain Shah, learned AAG, for the respondents.

Date of hearing: 11.03.2025

JUDGMENT

SADIO ALL J.- Through the instant writ petition, the petitioners have prayed as under;

"It is, therefore, most humbly prayed on acceptance of instant Writ Petition the Rule 52(l) of Local Government (Conduct of Elections) Rules, 2021 may please be declared as ultra vires, against fundamental rights, Constitution and objective resolution. The petitioner may please be declared as returned candidate for Tehsil Council Abbottabad d and respondenls may please be directed to issue the notification of petitioner in this regard".

) The facts leading to the filing of the instant writ petition are that the petitioner, a resident of Abbottabad, contested the local bodies election held on 31.03 .2022 for the seat reserved for minorities from

Neighborhood Council, Upper Kehal, Abbottabad. She secured 1010 votes and was declared the returned candidate. It has also been alleged that she obtained the third-highest votes in her category across the entire Tehsil, Abbottabad, where seven seats are reserved for nrinorities in the Tehsil Council. These seats are allocated among returned candidates from village councils/neighborhood councils who secured the highest votes or were elected unopposed, as provided under Rule 52(l) of The Local Government (Conduct of Elections) Rules, 2021. The petitioner submitted an application to respondent No. 5, seeking her declaration as a Tehsil Member. However, her request was declined on the ground that seven unopposed returned candidates had already been notified as members of the Tehsil Council, Abbottabad. Feeling aggrieved by this decision, the petitioner has now approached this Court through the instant writ petition. d$ J. When this case was taken up for hearing the respondents were put to notice and they were directed to file their para wise comments which they have accordingly submitted.

I, Arguments of the learned counsel for petitioner and learned AAG were heard in considerable detail and the record perused with their able assistance.

5 The perusal of the record reveals that the petitioner has approached this Court seeking a declaration to be appointed as a Tehsil Member, asserting that she secured the third-highest number of votes among the minority candidates in the entire Tehsil, Abbottabad. The petitioner contends that, based on this electoral performance, she deserves one of the seven reserved seats allocated for minorities in the Tehsil Council. She further alleged that her exclusion from the reserved seats is unjust and contrary to the spirit of fair representation, hence, prayed that The Rule 52(l) of Local Government (Conduct of Elections) Rules, 2021 be declared as ultra vires, against fundamental rights, Constitution and objective resolution. However, the procedure goveming the allocation of reserved seats, including those designated for minorities, is explicitly outlined in Rule 52 of The Khyber Pakhtunkhwa Local Council d}l| (Conduct of Election) Rules, 2021. This rule sets forth the framework for ensuring transparency and impartiality in the selection process, aiming to provide equitable opportunities to all candidates vying for representation in the Tehsil Council.

5 This case pertains to the vires of the Rules 52(l) of The Local Government (Conduct of Elections) Rules, 2021. To determine whether the

provision of Rule 52(l) of The Local Government (Conduct of Elections) Rules, 2021 is ultra vires the Constitution, the principle policy, and the Parent statute (The Local Government Act, 2012), as well as whether subordinate legislation can be struck down on the basis of unreasonableness, these questions require examination by this Court. To gain a clear understanding of the real controversy raised and agitated by the petitioner, a compartmentalized methodology must be adopted. Firstly, the question arises as to whether Rule 52(l) of The Khyber Pakhtunkhwa Local Council (Conduct of Election) Rules, 2021, is ultra vires the Constitution and the principal policy. To address this issue, certain provisions of the Constitution must be examined for a ciear understanding;

Part II, Chapter I Fundamental Rights and Principles of Policy c Article 8.

8 Laws inconsistent with or in derogation of fundamental rights to be void.

(1)Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter' shall' to the extent of such inconsistency, be void.

(2)The State shall not make any law which takes away or abridges the rights so conferued and any law made in contravention of this clause shall, to the extent of such contravention, be void.

(3)The provisions of this Article shall not apply to

(a)any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or

(b)any of rhe.-

(i)laws specffied in the First Schedule as inforce immediately before the commencing day or as amended by any of the laws specified in that Schedule;

(ii)other laws specified in Part I of the First Schedule;

and no such law nor qny provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.

(4)Notwithstanding anything contained in paragraph (b) of clause (3), within a period oJ two years from the commencing day, the appropriate Legislature shall bring the laws specffied in [Part II of the First ScheduleJ tinto conformity with the rights conferred by this Chapter:

Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months. Explanation:- If in respect of any law [Majlis-e- Shoora (Parliament)J is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.

(5)The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.

Article 32 of The of The Islamic df Republic of Pakistan, 1973. The State shall encourqge local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasonts, workers and women.

Z, The supremacy of the Constitution demands tha! any legislation must be in conformity with the constitutional requirements. If found in

violation of the Constitution, the Court has the authority to declare such legislation unconstitutional and void. Furthermore, if the enabling or Parent Act (i.e., the Act providing for delegation) is deemed void, any subordinate or delegated legislation made under that Act will also be declared unconstitutional and void. The limits imposed by the Constitution may be express or implied. An express limit, as provided in the Constitution, stipulates that any law inconsistent with or contradicting Part-II of Chapter 1 (Fundamental Rights) of the Constitution shall be void.

Additionally, the State is prohibited from enacting any law that takes away or abridges the rights conferred by Chapter-Il of Part I of the Constitution, as per Article 8 of the Constitution. Similarly, when the law/Rules are also to be considered as ultra vires to the Constitution if they are in contravention with the J implied limits of the Constitution. Key implied limits as per Article 8 of the Constitutional law includes ordinance, orders, by law rules, regulation, notification custom and usage. The implied limits of the constitution is the essential legislative function consisting upon determination of legislative policy and its formulation as rule of conduct.

i. Pakistan is defined as an Islamic Republic, meaning no law can be enacted that contradicts the Quran and Sunnah.

ii. Some constitutional scholars qrgue that certain features like federalism, parliamentary democracy, and judicial - form the "basic strltctltre" independence and cannot be altered, even though c ons titutional amendment s.

iii. The judiciary has the power to review laws passed by Parliament. If any law contradicts the Constitution, especially regarding fundamental rights or Islamic provisions, the courts can declare it void.

iv. The division of powers among the Legislature, Executiye, and Judiciary ensures that no branch oversteps its authority, maintaining a system of checks and balances.

v. The Constitution is rooted in the will of the people. Any law or action that undermines public sovereignty or fundamental rights would breach implied limits.

vi. These limits are often defined through judicial interpretations and landmark cases, especially when courls assess the validity of constitutional amendments or executive actions.

g. Keeping into account the aforesaid narration and to determine whether Rule 52 (1) of The Local Government (Conduct of Elections) Rules, 2021 is ultra vires the Parent Act, it is essential to scrutinize the relevant rules and provisions of the Local Government Act. A detailed examination will facilitate a comprehensive understanding of the legal standing dd of Rule 52(I) in light of the Constitution and the Parent Act i.e. The Khyber Pakhtunkhwa Local Government Act, 2013 (hereinafter is to be referred as the Act)

[74. Franchise, Wards and Electoral Collese.--

(1)Save as otherwise provided, election of members of village council, neighbourhood council and

Chairmen, Tehsil Local Government shall be held on the basis ofadultfranchise andjoint electorate.

(2)Each tehsil shall be a single ward for the election of Chairman, Tehsil Local Government.

(3)Members to fill seats reserved for women. peasants and workers, youth and minorities in the Tehsil Council shall be elected in the monner indicated in [Part-Il of Eleventh Schedule.

(4)Elections of Chairman, Tehsil Local Government shall be held on porty basis and a political party shall be eligible to obtain an election symbol for contesting these elections. Explanation: For the purpose of this section:

(a)the term "Political Party" shall have the same meaning as assigned to it in the Election Act, 2017 (Act No. XXruil of 2017) and the provisions of the said Act, shall mutatis mutandis apply to political parties contesting election for Chairman, Tehsil Local Government; and

(b)the term election symbol shall have the same meaning and connotation as assigned to it in the Election Act,2017 (Act No. XXXII ot2017).)

Similarly, Section 112 of The Local Govt Act, 201,3 provides competence for rule making in respect of entries enumerated in Part I of the Seventh Schedule

J Section 112 of Locsl Government Act, 2013. Rules'--' (l) Government mqt, blt notification in the qfficial Gazette, make rules for carryting out the purposes o.f this 4c!.

(2t In oarticular and without oreiudice to the generalitv of the fore-going oower, such rules mav provide for all or anv of the matters soecified in Part -I of Seventh Schedule.

(3)The rules made under sub-section (l) shall be subject to previous publication in the fficial Gazette and shall meet the following considerations:-

(a)consistency with the provisions of this Act, demo cr at i c de c e ntr ali z atio n and s ub s i di ar ity ;

(b)enhancement of welfure of the people,' (c) fairness and clarity; and

(d)natural justice and due process of law Seventh Schedule Part-I

1.Local Government (Conduct of Elections);

t3.

t6.

t7.

21.dny other set of rules necessary for implementation of this Act.

Cltanter-Vl Teltsil Council

Section 24 of Act. Composition of tehsil council.---There shall be a tehsil council in each tehsil which shall consist of members as provided in Part-I of Eleventh Schedule to this d Act.

Section 27 of Act. Composition of village council and neighbourhood Council.---(l) Every village council and neighbourhood council, shall comprise of members as provided in Part-II of Eleventh Schedule to this Act.

(2)The village council or the neighbourhood council, as the case may be, shall be a multimember ward for directly election of members to be held on nonparty bosis through adult franchise and joint electorate.

(3)The candidate securins hiehest number of votes in election to the seneral seots of the Villose

Council or the Neighbourhood Council. as the case mav be, shall be the Chairman of the respective council: Provided that if the required number of eeneral members of village council or neishbourhood have been elected unooposed, the election of Chairmon of village council or neish council shall be conducted in the prescribed msnner.

(4)Executive Authority of the Village Council or Neighbourhood Council, as the case may be, shall vest in respective Chairman who may nominate one of the members of the Village Council or the Neighbourhood Council, as the case may be, to preside over meetings of the respective council and deputize him during his temporary absence. Explanation.---For the purposes of this section and Eleventh Schedule, the term "youth" means a duly qualified candidate for election under this Act, who is below thirty years of age on the last day fixed for filing of nomination papers.]

Eleventh Schedule Part I (Tehsil Council) s Category Mode of # Election I All Chairmen of Village Indirect and neighbourhood Councils in the Tehsil

2 Reserved seats for women, youth , Indirectly elected from peasants/workers and minorities amongst the categories Note, The total number of seats in of women, youthn women, youth peasant/ worker peasant/ worker and rl

d and minorities categories will be minorities councilors of such as Government may the Village and determine. neighbourhood Councils in the Tehsil/ City Local Government who have obtained highest number of votes in percentage of their respective category of reserved seats.

Provided that where a member is elected unopposed in a village council or a

neighbourhood council, he shall be deemed as a highest vote taker in their respective village

councils or neighbourhood council

Similarly, Rule 52 (l) The Local Govemment (Conduct of Elections) Rules, 2021 being relevant is reproduced below;

Seats, reserved for women, peasants, workers, youths and non-muslims in the Tehsil Local Councilor City Local Council, shall be filled indirectly from amongst the categories of women, peasant (worker, youth, and non-Council or City Local Council who have obtained highest number of votes in terms of percentage in the respective category of reserved seats :

Provided that where a member in a respective category ofreserved seats is elected unopposed in a village council or a neighbourhood council, he shall be deemed as a highest vote taker in terms of percentage in their respective category of reserved seats from the village councils or neighbourhood councils:

Provided .further that in case the number of unopposed members in the respective category of reserved seats .fro* the village council or neighbourhood council in the Tehsil Local Council or City Local Council, is more than the number of the reserved scats to be filled in the respective category of reserved seats in the Tehsil Local Council or City Local Council, the Returning Officer shall draw a lot in respect of such members, and the member(s) on whom the lot falls shall be deemed to have declared member of City Local Council or Tehsil Local Council.

2 It is also relevant to mention there that the principle of judicial deference mandates that courts d$ should avoid stepping into the legislative domain unless the law in question is evidently ultra vires to the Constitution. The Courts have reiterated that mere allegations of bad faith, procedural lapses, or policy disagreements do not provide sufficient grounds for judicial intervention. The Legislature, being a representative body, is presumed to act in the best

interest of the public. Therefore, the Courts can only intervene when a law either contravenes the Constitution or violates fundamental rights enshrined (a therein. This Court in the case of Fawad Khan vs. Government of Khvber Pakhtunkhwo" reported as 2022 142 has held that "Vires of a law can onlY be assailed if it is shown that either Legislature was not competent to enact it or there was any malafide on the part of Parliament in the enactment and if none of the said elements exist then desired writ to declare the law ultra vires of the Constitution cannot be issued" In the case of "State of J&K v. Kakhwidner Kumor" reported as (2013) 6 SCC 333 the Supreme Court of India has held as following;

"When a general power to make regulations is followed by a specific power to make regulations, the latter does not limit the former. This is the principle of 'generality vs enumeration': a residuary provision can always be given voice.

Legal Principles Summarised The Court summarised the following legal principles relevant in adjudicating cases where subordinate legi,rlation is challenged on the ground of being 'ultra vires' to the parent Act:

1.The body making Rules or Regulations hos no d inherent power of its own to make rules, but derives such power only from the statute, it must necessarily function within the purview of the stotute. Delegated legislation should not travel beyond the purview of the parent Act.

2.(Jltra vires may arise in several ways; there may be simple excess of power than what ls conferred by the Parent Act; delegated legislation may be inconsistent with the provisions of the Parent Act; there may be non- compliance with the procedural requirement as laid down in the Parent Act.

3.If a rule is c:hallenged as being ultra vires, on the ground that it exceeds the power conferred by the Parent Act, the Court must, .firstly,

determine and consider the source o.f power related to the Rule, secondly, the meaning of the subordinate legislation, and that whether the subordinate legislation is consistent with and within the scope of the delegated power.

4.In determining f the impugned rule is intra vires/ultra vires the scope of delegated power, Courts have applied the 'generality ys enumer at ion' pr inc iple.

5.The "generality vs enumeration" principle lays down that, where a statute confers particular powers without prejudice to the generality of a general power already conferred, the particular powers are only illustrative of the general power, and do not in any way restrict the general poyver. In that sense, even f the impugned rule does not -fall within the enumerated heads, that by itself will not determine if the rule is ultra vires/intra vires. It must be further examined if the impugned rule can be upheld by reference to the scope of the general power.

6.The delegated power to legislate by making rules 'for carrying out the purposes of the Act' is a general delegation, without laying down any guidelines as such. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the Act of having been so framed as to fall within the scope of such general power confirmed.

7.However, such power delegated by on enactment does not enable the authority, by rules/regulations, to extend the scope or general operation of the enactment but is strictly ancillary. It will authorize the provision of subsidiary meons of caruying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specffic provision. The general power cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself, 8. If the rule making power is not expressed in such a usual general form but are specifically enumerated, then it shall have to be seen if the d$ rules made are protected by the limits prescribed by the parent Act.

In the case of "Z

Ltd vs. Centrsl Board of Revenue crnd otlrers" reported as 2002 SCMR 312 the Hon'ble Apex Court has held as under;

oo 1m\ Vires of legislation--

---- Factors determining vires and purpose(s) of notification.

While interpreting a notification "the purpose or purposes for which a notification is issued would be relevant in determining the vires of a notification. One of the practical and effective ways of proliferating the purpose is to see how far the suggested meaning destroys and defeats or promotes the ultimate purpose. In this research the Court is not confined to the literal meaning of the words used in the notification but it has to adopt a rational attitude by attempting to align its vision to that of the draftsman while drafting the notification in question".

In the case of "Karaehi BM Authoritv and 3 others v,s. Hushwani Sales and Services Limitet' reported as PLD 1993 Supreme Court 210 it has been held that;

" (d) Interpretation of statutes

Regulations/Rules framed under statute --- Once a Court finds that the Regulations/Rules framed under the statutory power are within the ambit of the relevant stoute, it cannot sit in judgment over the wisdom and ffictiveness or otherwise of the policy laid down by the Regulations making body and it cannot declare Regulations to be ultra vires merely because the Court considers that the impugned o,t' Regulations will not serve the object and the purpose of the Act".

In the case of 'oProfessor Hussain and nlhors r,tc wonl o f 'Pakistan thro oh Qonvolnvts Ministrv of Law, Justice and Parliamentarv Affairs, Islamabad and others" reported as PLD 2013 Federal Shuriat Court 18 it has been held that;

l5

(c)Interpretation of statutes---

"----Rules under q statute and Office Me mor andum s - - - O bj e c t, purp o s e and s c op e - - - Rul e s made in pursuance of delegated authority must be consistent with statute under which they came to be made---Authority is delegated only to the end that provisions of statute may be better caruied into effect and not with the view of neutralizing or c ontr adi c t ing tho s e pr ov i s i o ns - - - P urp o s e of fr am in g Office Memorandums/Rules is just to facilitate and provide for procedural matters which are subsidiary to the provisions of Act itself---If rules framed under statutes or byeJaws framed under rules, are in excess of provisions of the statute or are in contravention of or inconsistent with such provisions, then such provisions/rules etc. must be regarded as ultra vires the statute and cannot be given e.ffect to ".

In the case of *Rida Fatima vs. Pakistan Medical Commission and others" reported as PLD 2022 Lahore 197 it has been held as under;

" ----Delegated legislation---Scope---Question before High Court was as to under what circumstances o delegated legislation or any part thereof can be put under judicial scrutiny to be followed by declaratory dictum of its being illegal and ultra vires---Held; if delegated legislation is directly repugnant to the general purpose and object of the very Act, under which such powers were created and passed on, or if it is repugnant to any settled and well estqblished principle of statute or result of excessive delegated legislation then it can be declared ultra vires---Delegated legislation cannot be questioned on the ground of mala fide or J unreasonqbleness because there is o strong general presumption attached to its legality and the onus to prove otherwise will be on the person who asserts it to be against the statute".

In the case of "Muzaffar Khan and otlte Evocuee Trust PropertV through DeputV Administrator" reported as 20n2lCL-C 1819 it has been held as under;

(b)Interpretation of statutes---

---- Power to issue Notification, Orders, Rules or ByeJctws would include power to add, amend, vary or rescind Orders, Rules or ByeJaws---Delegoted

Legislation could be described as orders, rules, regulations, schemes, licences and instruments ---Any nomenclature could be used by the enabling Act---Term "scheme" was used where power was given to make detqiled arrangements for some matter considered to be in need of general statutory administration---Scheme/bye-laws could be struck down as ultra vires on five main grounds if statutory procedure prescribed for making them, had not been followed; f they were repugnant to provisions of some other statute; tf they con/licted with porent Act itself; f they were uncertain, and if they were unreasonable---Item of delegated Legislation was, by a paradox, grant of executive power to a person or body under legislative powers conferred by enabling Act--Vagueness, ambiguity, arbitrariness and uncertainty could render q regulation/ scheme void ".

10 To further elaborate the contention, Section 74 (3) of Local Government Act, 2013 stipulates that member to filI seats reserved for women, peasants and worker, youth and minorities in the Tehsil Council shall be elected in the manner indicated in (Part I) of Eleventh Schedule while section ll2 of ibid Act empowers the govefilments to make rules for carrying out the purpose of this Act specifically section ll2(2) confer upon the government the power to make rules for conducting dt' election of the local govemment and other axillary entries enumerated in (Part I) of Seventh Schedule.

Section 24 of The Local Government Act, 2013 deals with the composition of Tehsil Council which states that there shall be Tehsil council in each Tehsil which shall consist of members as provided in (Part I) of Eleventh Schedule of the Act ibid while on the other

hand section 27 of The Act deals with composition of village council and neighborhood council shall be comprised of members as provided in (Part II) of Eleventh Schedule. While (Part-I) of the Eleventh Schedule clearly indicates that as per entry No. 2 of the schedule, reserved seats for women, youth, peasants/worker and minorities are to be determined by the government and indirectly to be elected from amongst the categories of women, youth, peasant/worker and minorities councilors of the village and neighborhood councilors in Tehsil/City Local Government who have obtained higher number of votes in of their resoective catesorv of which where a

is elected unopposed in villa ge or ne council he shall be deem as highest vote taker in their respective villase or neiehb council.

11.Combined reading of the language of Rule 52(l) of The Local Government (Conduct of c Elections) Rules, 2021 and entry No. 2 of (Part I) of Eleventh Schedule of the Act makes it similar and same phraseology has been used. Entry No. 2 of the (Part- I) of the Eleventh Schedule is not under challenge herein, in the instant writ petition neither the provision of Rule 52(l) of The Local Government (Conduct of Elections) Rules, 2021 is in conflict with

l8 the parent statute rather is in its conformity. Secondly, the section 112(2) specifically conferred power upon the government to make rule with regard to the entries enumerated in the Seventh Schedule (Part I) and to this effect entry-l specifically covers the subject forming the controversy agitated in the instant writ petition thus, the Government, as defined in this Act, is well within its competence to frame the rules on this subject. As far the compliance or otherwise of the procedural requirement is concerned, the same rules have been duly approved by the Cabinet and thereafter were published in official Gazette vide Notification No. PDA(LG & RDD/ERS/5-10)2021 dated 2nd April, 2021, thus, fulfilling the basic legal requirement. The other aspect of the case as to whether Rule 52 (1) of The Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules 2021 is violative or ultra- vires to the Constitution, and the principles of policy, dlr to this effect learned counsel for the petitioner could not pointed any noticeable violation. The doctrine of unopposed uncontested election is universally recognized throughout the world and earned more respect, therefore, cannot be considered as violative principal policy or unconstitutional on mere whims and wishes.

12 The other arguments of the learned counsel for the petitioner that Rule 52(l) of The Local Government (Conduct of Elections) Rules, 2021 1S unreasonable and arbitrary, the case law on the subject as discussed above, the delegated legislation can only be challenged on this ground when the rules under the challenge given unguided and uncontrolled discretion to the authority and remain impracticable and thus unreasonableness are no grounds for declaring any delegated legislation as invalid, unconstitutional on the basis of mere inconvenience or to be against the whims and desires of a person.

13.In view of the above discussion, the petitioner has been unable to make out a case for issuance of the desired writ, therefore, the same is dismissed.

Announced rr.03.2025 Tahir Saleem

I DGE

JU N,

(Oq Ur. Justice Muhammad Faheem llali and Mr. Justice Sadiq Ali