2023 M L D 1518
[Balochistan (Turbat Bench)]
Before Muhammad Kamran Khan Mulakhail and Muhammad Aamir Nawaz Rana, JJ
HAFEEZ ALI ---Petitioner
Versus
GHAFOOR AHMED and 2 others ---Respondents
C.P. No. (T) 204 of 2022, decided on 10th December, 2022.
Balochistan Local Government Act (V of 2010) ---
----S. 2(1)(lxxxviii) ---Constitution of Pakistan, Arts. 32, 34 & 36--- Local bodies elections ---
Reserved seat for 'worker' ---Petitioner was aggrieved of acceptance of candidature of
respondent by election authorities against seat reserved for 'worker' in local bodies elections -
--Validity ---In order to protect and safeguard rights of down trodden masses, minorities and
women, special seats were sine qua non for their due representation otherwise feudal lords
and privileged classes would usurp even their right of representation in the corridors of power ---For such purposes Arts. 32, 34 & 36 were incorporated in the Constitution---True
representation of subjugated classes in the corridors of power was the way forward to attain prosperity, tranquility and peace in society--- Respondent did not qualify within the definition
of "Worker" provided in the Balochistan Local Government Act, 2010--- High Court set aside
orders passed by election authorities and rejected nomination form for special seat reserved for Workers, as respondent had valuable assets in his name ---High Court directed Returning
Officer to "delete" name of respondent from the list of validly nominated candidates for special seat reserved for 'Worker' ---Constitutional petition was allowed accordingly.
Majeed Ahmad v. District Returning Officer, Rajanpur PLD 2006 Lah. 43 and Malik
Muhammad Hussain v. District Returning Officer 2008 SCMR 438 rel.
Rahib Khan Buledi for Petitioner.
Zakir Khan Kakar for Respondent No. 1.
Muhammad Haroon Kasi, Senior Law Officer, Shehzad Ahmed, Law Officer, Zahoor
Mengal, Legal Advisor and Naseer Ahmed, Senior Personal Assistant, Election Commission of Pakistan for Respondents Nos. 2 and 3.
Date of hearing: 8th December, 2022.
ORDER
MUHAMMAD AAMIR NAWAZ RANA, J. ---The petitioner, being highly
aggrieved and dissatisfied from the order passed by the Returning Officer, Municipal
Corporation ('MC'), Turbat, whereby the objections filed by the petitioner against the candidature of respondent No.1 were overruled/rejected and subsequently, the Appellate Authority maintained the order of the Returning Officer by dismissing the appeal filed by the
petitioner, has called in question the legality and validity of said orders at the touchstone of
Articles 32, 34 and 36 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter
"the Constitution").
2. In a jiffy; the petitioner is contesting forthcoming election of Local Bodies for the
reserved seat of Worker in Municipal Committee, Turbat. The respondent No.1 had also filed nomination forms for the reserved seat of Worker in MC Turbat. The petitioner filed objections against nomination forms of respondent No.1 on the ground that respondent No.1 by no stretch of imagination qualifies the definition provided for "Worker" in the Balochistan Local Government Act, 2010 (hereinafter "the Act 2010"). The objections filed by the petitioner, as mentioned above, were rejected by the Returning Officer MC Turbat and the Appellate Authority, vide order dated 24.11.2022, maintained the order of Returning Officer MC Turbat. Both the orders are impugned before us through this constitution petition.
3. Mr. Rahib Khan Buledi, learned counsel for the petitioner contended that respondent
No.1 is renowned political figure of the area and has remained as Caretaker Provincial Minister as well as Tehsil Nazim. Learned counsel contended that apart from that respondent No.1 owns valuable assets in the shape of petrol pump, ice factory and other moveable and immovable properties/lands. Learned counsel further pointed out that respondent No.1 is owner of a flat in Karachi in commercial area bearing No.603, Block -A, Deluxe, Naroz
Noor, Civic View Apartment, 13- A Hassan Square, Karachi and expensive vehicles are also
in the name of respondent No.1. While concluding, learned counsel asserted that the accumulative effect of property details of the petitioner is that he can be called anything but "Worker" as defined in the Act 2010.
4. Mr. Zakir Khan Kakar, learned Counsel for respondent No.1 contended that
considering the definition provided in the Election Laws for "Worker" as well as in Industrial Relations Act, 2012 (hereinafter "IRA 2012"), respondent No.1 qualifies to contest the forthcoming local bodies election for special seat reserved for Worker. Learned counsel relied upon the Certificate dated 23.11.2022 issued by Al -Dawood Tiles, which depicts that
respondent No.1 works in said business concern as Storeman at monthly salary of Rs.23,000/ -. Learned counsel further contended that though the lands are in the name of
respondent No.1 but since the same are barren, therefore respondent No.1 is not receiving any income from the said lands. With regard to vehicles, learned counsel contended that though the said vehicles are in the name of respondent No.1 but in fact respondent No.1 is not owner of said vehicles.
5. Mr. Muhammad Haroon Kasi, Senior Law Officer, Election Commission of Pakistan
contended that in view of the documentary evidence, in which number of assets have been found in the name of respondent No.1, the impugned orders are not in accordance with law as respondent No.1 in presence of such assets cannot be termed as "Worker".
Arguments heard. Record perused.
6. The annals of history witness that the true representation of subjugated classes in the
corridors of power and authority has always been a dream but this world has seen such
dreamers who by the power of their conviction and hard work have converted the far cry dreams into reality. The words of Martin Luther King Junior still beacon the abysmal darkness when he challenged the centuries old dogma by shouting "I have a dream" and roared:
"Let us not wallow in the valley of despair, I say to you today, my friends.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: We hold these truths to be self -evident, that all men are created equal.
I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.
I have a dream today!"
This iconic speech was delivered on 28.08.1963 and what happened thereafter was
result of that dream and we observe that the American society completely transformed in the
wake of that struggle and now they are professing themselves to be the Champion of human rights; all over the world.
7. The framers of our Constitution had also foreseen that in order to protect and
safeguard the rights of down trodden masses, minorities and women, special seats are sine qua non for their due representation otherwise the feudal lords and privileged classes shall usurp even their right of representation in the corridors of power, therefore Articles 32, 34 and 36 were incorporated in the Constitution. For the facility of ready reference, Articles 32, 34 and 36 of the Constitution are reproduced herein below:
"Promotion of local Government institutions
32. The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women.
Full participation of women in national life
34. Steps shall be taken to ensure full participation of women in all spheres of national life.
Protection of minorities
36. The State shall safeguard the legitimate rights and interests of minorities,
including their due representation in the Federal and Provincial services".
8. While dilating upon the object of creation of special seats of Peasants/Workers in the
case titled as Majeed Ahmad v. District Returning Officer, Rajanpur1, the Lahore High Court
has held as under:
"----- the object behind the creation of special seats of Peasants/workers is to give
representation to a special class of people, who otherwise on account of certain
rigours of contesting the general election, may not be able to seek representation and thus stands precluded from their participation in the affairs of the local governance at
the grass root level. And, if a person who does not squarely fall within the class of
Peasant/Worker, rather is an established landlord or the businessman, etc. is permitted
to contest the election in the guise and garb of special class, it deprives and usurps the
rights of the deserving people. This usurpation by disqualified persons undoubtedly is
not permissible under the law, thus if they are allowed to contest the election on these
special seats, it shall tantamount to be a fraud upon the statute, which under no
circumstances can be allowed,"
9. The detail of the properties relied by the petitioner transpires that respondent No.1 is
affluent and owns number of properties as depicted in the Revenue record. The vehicles
which are registered in the name of respondent No.1 further fortifies the stance of the petitioner that respondent No.1 has valuable assets; though number of other businesses of respondent No.1 are also mentioned by the petitioner but since no counter affidavit was filed
by respondent No.1 to refute the stance of the petitioner, therefore inference is drawn in this
regard that respondent No.1 has connection with those businesses. Reliance in this regard is
being placed upon the case titled as Malik Muhammad Hussain v. District Returning Officer
2, the relevant excerpt is reproduced herein below:
"6. We have heard learned counsel for the parties and have also gone through the relevant provisions of law and the impugned judgment. Relevant para. therefrom has been reproduced hereinabove. It is important to note that there is no denial of the fact that the petitioner is the owner of 250 Kanals land. No evidence has been produced by him that he undertakes a manual work to earn his livelihood. Therefore, he does not fall within the definition of worker. Besides petitioner has himself relied upon a certificate issued by the "Five Star Bricks Company", a perusal whereof indicates that he is working as Supervisor with this Company since March, 2003. It is admitted that as far as the Supervisor is concerned he is not to be treated as worker for the purposes of Industrial Relations Ordinance, 2002. Learned High Court on having taken into consideration the relevant provisions of law and facts available on record has decided the controversy which is not open to any exception therefore, we are of the opinion that no interference is called for the impugned judgment".
DENOUEMENT:
True representation of subjugated classes in the corridors of power is the way forward
to attain prosperity, tranquility and peace in the society; again in the words of Martin Luther King Junior "Peace is not absence of tension but "presence of justice".
In the wake of above deliberations, we are not convinced by the explanation provided
by respondent No.1 that he qualifies the definition of "Worker" provided in the Act 2010
despite having valuable assets in his name. Consequently, the impugned orders are set aside and the nomination forms of respondent No.1 for special seat reserved for Worker in MC Turbat are rejected; the Returning Officer MC Turbat is directed to "delete" the name of
respondent No.1 from the list of validly nominated candidates for special seat reserved for
Worker in MC Turbat. Petition is accepted.
MH/27/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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