Abdul Hadi V. Government of Balochistan, Local Government Rural Development Agrovilles Department,

2014 C L C 1450 [Balochistan] Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mulakhail, J ABDUL HADI----Petitioner Versus GOVERNMENT OF BALOCHIST AN, LOCAL GOVERNMENT RURAL DEVELOPMENT AGROVILLES DEPARTMENT through Secretary and 2 others---- Respondents Constitutional Petition No.744 of 2013, decided on 19th December, 2013. (a) Electoral Rolls Act (XXI of 1974)--- ----S. 20---Balochistan Local Government (Delimitation) Rules, 2011, Rr.7, 4, 5 & 6--- Constitution of Pakistan, Art. 199---Constitutiona l petition---Competency---Alternate remedy--- Delimitation of wards of union council---Appeal ---Limitation---Scope---Contention of petitioner was that Government on its own wa s not authorized to prescribe the limits of wards and union councils---Validity---Government had not only co mplied with the provisions of Balochistan Local Government Act, 2010 and Balochistan Lo cal Government (Delim itation) Rules, 2011 but petitioner was also on board during the process of delimitation---Section 20 of Electoral Rolls Act, 1974 did not permit alteration, amendment or change in the limits of wards after the announcement of election schedu le---Petitioner ha d not filed an appeal against the recommendations with regard to delimitation of wards which was required to be filed within seven days---Petitioner could not fi le constitutional petition without availing of the said alternate remedy---Constitutional petition was only competent when no other remedy was available to the aggrieved person---Constitutional petition was dismissed in circumstances. (b) Constitution of Pakistan--- ----Art. 199--- Constitutional petition--- Competency--- Constitutional petition was only competent when no other remedy was av ailable to the aggrieved person.

Amanullah Batezai and Niamatullah Batezai for Petitioner. Shai Haq Baloch, Asstt. A.-G. and Har oon Kasi, Law Officer, Provincial Election Commissioner Balochistan, Quetta for Respondents. Date of hearing: 20th November, 2013.

ORDER

MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- The following prayer has been made in this petition:---

"It is, therefore, respectfully prayed that this Hon' ble Court may please [sic] to declare the notification dated 28-10-2013 issued by respondent No.1 without incorporating the recommendations of petitioner to be illegal, unwarranted and made in excess of authority consequently the same may be set aside/modified and directions be issued to respondent No.1 to incorporate the union councils/adjus ted the wards as per recomme ndations of the petitioner and others in the delimitation notific ation as suggested by the petiti oner and others, with any other relief which may be appropriate in the circumstances of the case and cost of the proceedings throughout in the interest of justice." 2. The petitioner has impugned the Notifica tion No.1-71/ 2010(Delt:)BLCEC/Vol-111/619- 35, dated 28th October, 2013, issued by the respondent No.1 , in respect of th e delimitation of the wards of Local Council, District Pishin. After promulgation of Balochistan Local Government Act, 2010, ("the Act") an advertis ement was published by the Deputy Commissioner/Delimitation Officer , Pishin, dated: 27th July, 2011, published in the Daily 'Jang', Quetta, wherein, proposals and complaints were i nvited in respect of delimitation of wards from the general public. The petitioner a nd other inhabitants of District Pishin, participated in the delimitation process and submitted their proposals in respect of delimitation of wards of local councils. The said process continued for ove r a year and a half and eventually, on 2nd November, 2012, Form-I, was compiled in respect of delimitation of each ward of local council of District Pishin.

3. The learned counsel for the petitioner stat ed that at the verge of forthcoming local government elections the said impugned Notif ication, dated 28-10-2013, was issued, which reflected that the proposals and ob jections of inhabitants of Dist rict Pishin, were not included/ accommodated. Being aggrieved, the petitioner had moved an application, before the respondent No.1 and reiterated their earlier proposals but no heed was paid, rather election schedule, dated 31st October, 2013 was announced by the Election Co mmission of Pakistan. The learned counsel contended that the government on its own was not authorized to prescribe the limits of proposed wards and union councils or local councils. Therefore, direction was sought to undo the impugned notification and prescrib e the limits of wards and union councils according to the proposals earlier submitt ed by the petitioner.

4. The learned Assistant Advocate-General a nd Law Officer of the Provincial Election Commissioner strongly opposed the contention and stated that subsequent to the impugned notification of delimitati on of wards, another Notification da ted 31st October, 2013, pertaining to Election Schedule has also been issued by the Election Commission of Pakistan in compliance with the order dated 25th Oct ober, 2013, in C.P. No.77 of 2010, passed by the Hon'ble Supreme Court of Pakistan. They further stated that neith er section 20 of the Electoral Rolls Act, 1974 nor the Delimitation of Constituencies Act, 1974, permits any change, alteration or amendment in the prescribed limits of constituencies/wards or union councils of any local council at this belated staged, and if it is done it will frustrate the whole el ection process. They therefore, sought the dismissal of the petition.

5. The perusal of record reflect s that after the promulgation of the Local Government Act, 2010, the Government of Balochistan (res pondent No.1) issued Notification No.5- 1/2010(BLCEC) 15185-15302, dated 31st May, 2011. In ex ercise of powers c onferred by section 141 of the Act, 2010, the Government of Balo chistan promulgated the Balochistan Local Government (Delimitation) Rules, 2011 ("the Ru les"); Rules 4, 5 and 6, whereof provide the procedure of delimitation, while Rule 7 provide s for an appeal against any order of the Delimitation Officer. That vide Notific ation No.5-1/2010(BLCEC)/ 15483-15599, dated 15th June, 2011, the powers of the Delimitation Officer were delegated to all the Deputy Commissioners of respective Districts in Balo chistan and the Divisiona l Commissioners were designated as the appellate authority agains t the order of the Delimitation Officer/Deputy Commissioner, coupled with schedule for Delim itation of wards stipul ating the dates for formulation of preliminary proposals, publicat ion of preliminary list of wards followed by inviting objection or suggestions, scrutiny of obj ections/suggestions, inqui ry, hearing of parties and preparation of final list, publi cation of final list of recomme ndations, filing of appeals before the appellate authority, disposal of appeals by the appellate author ity and forwarding of final list of recommendations to the Gove rnment. The process was stipulat ed to complete as on 30th August, 2011.

The relevant provision of Rule 7, of Delimitation Rules, 2011, are reproduced here under:--- "7. Appeals. (1) Any voter of the local counc il concerned aggrieved with the order passed under sub-rule (3) of Rule 6 may file appeal be fore the government or an officer authorized by the government in this behalf with in seven days of such order.

(4) The Government may, on its own motion or on representation made to it after hearing the parties if any, revise the final list of delimitatio n of a council by recording reasons thereof and notify the same for general information. (5) The Government may, at any time correct any clerical error or any erroneous insertion or omission in the final list."

It transpires that the government had not only co mplied with the provisions of Local Government Act, 2010 and the Delimitation Rules, 2011 and the petitioner was fully on board during the process of delimitation.

6. Moreover, section 20 of Electoral Rolls Act, 1974 does not permit changes after the announcement of the election schedu le. The provisi on provides:--- "20. No correction to be made after constitu ency called upon to elect. No revision or correction of any electoral roll for an electoral area shall be made nor shall any order under section 19 be made in respect of any electoral roll at any time after the constituency of which such electoral area forms part has been called u pon to elect its re presentative and before such representative ha s been elected."

7. Therefore, in view of the provisions of the enactments in relation to election laws mentioned above brings us to th e conclusion that after announ cement of election Schedule dated 31st October, 2013, no alteration, amendment or cha nging can be made in the limits of wards. Admittedly, the petitioner had also not filed an a ppeal against the final list of recommendations regarding delimitation of wards, which was require d to be filed within seven days. Therefore, without availing of the said alternate remedy th e petitioner cannot file a constitution petition before this court. The constitution petition before this court is only competent, when no other remedy is available to the aggrieved person but th e petitioner had failed to avail the prescribed remedy of appeal within the prescribed time, th erefore, the petition on the ground of laches as well as for not availing the alte rnate remedy provided under the prescribed rules, is dismissed accordingly.

AG/14/Bal. Petition dismissed.