KARACHI, Feb 10: The provincial government stands firmly by the legality and propriety of its decision to relieve the bifurcated districts' nazims and cannot consider their reinstatement even provisionally , the advocate-general told a Sindh High Court division bench on Thursday.

Anwar Mansoor Khan was responding to a proposal whether the government would be willing to allow the petitioner nazims to continue in four of the eight newly-created districts where they were registered as voters.

The bench, which consists of Justices Sarmad Jalal Osmany and Zia Pervez, meanwhile, sought production of the local government election results when the petitioners' counsel, Advocate Rasheed A. Razvi, said at least one of the nazims, Pir Shafqat Shah Jilani, won majorities in both Mirpurkhas and Umerkot jointly and separately in the 2001 local polls.

The counsel interrupted the AG when the latter argued that it was difficult to ascertain whether the nazim-deputy nazim panel won the 2001 polls from both the newly-created districts. Each panel must poll at least 50 per cent votes and the winning panel might have received less votes in one half of the bifurcated district which had now become a full-fledged district. Elections were in any case required if the nazims and deputy nazims belonged to separate halves of the old district.

Advocate Razvi said the plea had not been taken in the para-wise comments submitted by the AG and was being raised for the first time in his arguments.

The AG, he said, could not be allowed to travel beyond the comments. He would have produced the election record had the plea been taken earlier.

The AG pointed out that no allegation of mala fides had been made in the petition but the government was being verbally condemned for 'removing the PPP nazims'.

He referred to Section 3 of the Sindh Local Government Ordinance, 2001, which disqualified politically-affiliated candidates and councillors from being elected and remaining in office.

Before adjourning the hearing for Friday, the bench also asked Advocate Razvi to bring on record an SHC judgment that, according to the counsel, forbade replacement of elected nazims by public servants as unlawful.

The judgment was rendered by a division bench comprising Chief Justice Saiyed Saeed Ashhad and Justice Maqbool Baqar in a Sanghar case on Wednesday.

The AG earlier argued that the constituencies which elected the petitioners just ceased to exist by operation of law. The nazims and deputy nazims could not be allowed to continue to hold their offices. Had they been asked to officiate pending bypolls, they would have become ineligible to contest and seek a fresh mandate. All that the government did and could do under the law was to ask them to go back to their electors and seek a new mandate from a new constituency.

He wondered why the petitioners were reluctant to make a fresh appeal to the electorate if they claimed that they still carried the mandate. Byelections, the AG contended, would have been held by now, but for their petition and the stay order obtained in it.

The bench observed that the petition would have become infructuous without a restraint order. Advocate Razvi said the petitioners had a mandate from their electors to complete their term.

The court and the lawyers agreed that it was a case of first impression, that there was no direct provision or case law that dealt with the matter and that the Sindh Local Government Ordinance was not a happily worded or drafted piece of legislation.

Citing superior court judgments from domestic and foreign jurisdictions, the AG said law was not inert or static. It had to grow to meet new situations. Once the new revenue districts came into being under the Sindh Land Revenue Act, they became electoral districts under the SLGO by operation of law. New electoral units and entities sprung up at the district level and the condition thus created was beyond human control in terms of Section 186 (2) of the SLGO.

The law or the government, the AG maintained, could not be a silent spectator to the collapse of local governments in as many as eight districts.

Section 186 (2) of the SLGO alone provided for the contingency and byelections were required to fill the gap. The DCOs were appointed as caretakers because they already had a crucial role to play in the district governments. A uniform policy had to be adopted in respect of all eight districts.

He said the SLGO empowered the government to take measures to remove difficulties in the implementation of the law. The court was also duly authorized to remove flaws by harmonious construction of various provisions in exercise of its power of judicial review. The bench observed that there was 'a limit to reading into the law' to supply deficiencies.

The AG said mala fides had to be specifically alleged along with particulars. No vague allegation could be entertained by the court.

A presumption of regularity and 'correctness' attached to all official acts. Only the SLGO could be relied upon to resolve the matter and the issue be best left to be decided by the electorate, he submitted.