HYDERABAD, Oct 9: A division bench of the Sindh High Court Hyderabad circuit bench here on Tuesday suspended the proceedings of the Election Tribunal against Nazim Sultan Khan and Naib Nazim Mohammad Iqbal of Union Council-6 and admitted their constitutional petition for regular hearing while observing that the contention raised in the petition required consideration.
Jhamatmal Jethanand, advocate, represented the petitioners. Mohammad Shafi, Aziz Ahmed, Abdul Salam Chundrigar, Mohammad Zuber Memon, Haji Shah, Rehmatullah, Judicial Magistrate and Returning Officer of UC-6 and the Election Tribunal, headed by the District and Sessions Judge of Badin, have been cited as respondents.
The petitioners claimed that the private respondents had contested elections against them but they had won the elections by securing maximum number of votes in the local bodies elections held on May 31 and added that it was also published in the official gazette on June 27.
Mohammad Shafi and Aziz Ahmed had filed an election petition before the Election Tribunal on June 15 and they had contested their claim by filing written statement.
They maintained that since the petition was filed before the issuance of the gazette notification and without service of requisite notice under Rule 72 of the Sindh Local Government Election Rules, the petitioners filed application under Rule 78 of the Sindh Local Government Election Rules which was supported by affidavit of petitioner Sultan Khan.
They maintained that the Election Tribunal heard the application of petitioners and dismissed the same vide order dated Sept 29. They claim that having no other efficacious remedy they had filed this petition.
The lawyer contended in the petition that it was admitted position that the petition was filed before the Election Tribunal prior to the issuance of the gazette notification and that petition was not only premature but it was not in accordance with Rule 71 of the Sindh Local Government Election Rules therefore it was liable to be dismissed. The Election Tribunal judge committed an illegality in not dismissing the said petition.
He stated that Rule 71, besides prescribing the period of limitation of 30 days after the publication of names of returned candidates in the official gazette also required the filing of petition after the publication of the notice and this aspect of the case was ignored by the Tribunal.
He added that respondents had also not complied with the provisions of Rule 72 of the Sindh Local Government Elections Rules as no copy of the petition was served upon any of the respondents.
He argued that the Tribunal had no jurisdiction to entertain the petition and decide the same in absence of non-compliance of provisions of Rule 72.
Arguing that the Tribunal had dismissed the application of petitioners, the lawyer contended that the Tribunal had committed an illegality in ignoring provisions of Rule 78 under which an election petition was liable to be dismissed for non-compliance of Rule 71 and 72 of the Sindh Local Government Election Rules.
He maintained that rulings referred on behalf of the petitioners before the Tribunal were applicable to the facts of the case nevertheless the Tribunal held that the said case law was not applicable to the facts of case.
He has prayed the court to declare the order passed by the Election Tribunal on June 29 in violation of mandatory provisions of Rule 71 and 72 of the Sindh Local Government Election Rules and was of no legal effect. He requested the court to dismiss the petition.
The bench heard the preliminary arguments in the case and observed that interpretation of Rule 71, 72, 78 of the Sindh Local Government Elections Rules 2000 were involved in the instant petition and non-compliance of which has penal consequences and its compliance being mandatory as contended by Mr Jethanand.
The court has fixed the matter for Oct 11.