2014 PLP 314 (CLC)

SARDAR ABDUL HAMEED KHAN, J.

This writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The precise facts giving rise to the instant writ petition are that the petitioner has challenged the order dated 25-4-2011 passed by the learned Election Tribunal Azad Jammu and Kashmir whereby an application filed on behalf of the petitioner for dismissal of the election petition has been rejected. The petitioner stated that he was elected as Member of Azad Jammu and Kashmir Legislative Assembly and was notified as such by the Chief Election Commissioner on 30-6-2011. The respondent No.2 challenged the election through a petition before the Election Tribunal of Azad Jammu and Kashmir on the ground that the petitioner was not qualified to be elected as member of the AJ&K Legislative Assembly on the date of filing of nomination papers. A further declaration in the terms that the election of petitioner as a returned candidate be declared as void was also sought. It was also prayed that re-election in the aforesaid constituency may be ordered. It is stated that the petitioner submitted an application under section 59 of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 on 9-9-2011 stating therein that the election petition may be dismissed for non-compliance of section 51 of the aforesaid Ordinance. After hearing the parties, the learned Election Tribunal rejected the application vide its order dated 25-4-2011. The petitioner prayed that the impugned order of the Election Tribunal dated 25-4-2011 may kindly be declared illegal and without lawful authority. The petitioner further prayed that the Election Petition pending before respondent No.1 may also be declared not maintainable and be dismissed for non-compliance of section 51(3) read with section 59 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The petition has been contested by respondent No.2 by filing written statement whereas respondents Nos.1, 3 to 6 were proceeded ex parte on 3-4-2013. It is pleaded in the written statement that the application for rejection of the application was filed under Order VII, rule 11 of the Code of Civil Procedure, which is not warranted by law. It is alleged that the proper forum against the order of rejection was the apex Court of Azad Jammu and Kashmir, hence, the writ petition is not entertainable. It is further alleged that totally different case has been set up before this Court and averments made in this writ petition were not raised before the tribunal. It is added that the said application is not covered by section 59 of the Ordinance. The petitioner has no locus standi to file the instant writ petition. It is pleaded that the learned Election Tribunal has rightly attended the controversy in light of law laid down in a case titled "Ch. Arshad Hussain v. Rukhsar Ahmad and others [2006 SCR 85]. The application has rightly been dismissed by respondent No.1 and the instant writ petition is also liable to be dismissed. Mr. Mansoor Pervaiz Khan, the learned counsel for the petitioner, while reiterating the grounds taken in the petition inter alia made following submissions:

(a) The election petition is time barred because result of the petitioner was notified on 30-6-2011 whereas the election petition has been filed before the Election Commission/Tribunal on 9-9-2011, which is hopelessly time-barred. (b) That the election petition has not been filed regarding any election dispute rather the same has been filed on the ground that the petitioner on the nomination day was not qualified to contest the election and this question cannot be gone into by the Election Tribunal. (c) That all annexures, annexed with the petition had to be verified, as required by section 51(3), and non-compliance of the said provision entails dismissal of the petition. (d) That the learned Election Tribunal has rejected the application without considering the relevant provision of law in its true perspective, hence, the order is illegal. (e) That the learned Tribunal has not discussed all the points raised in the petition and failure of the Tribunal to decide all the points listed in the petition tantamount to not to exercise the jurisdiction vested in it. In support of his submissions, the learned counsel has placed reliance on the following cases:

(1) 2005 SCMR 492, (2) PLD 2007 SC 362 (3) 2003 YLR 2784. On the other hand, Mr. Sadaqat Hussain Raja, the learned counsel for the respondent No.2, referring to the stand taken in the written statement, argued that the documents annexed with the election petition are official/public documents, hence need not to be verified and no non-compliance of section 51(3) has been committed by the petitioner. It is further argued that the tribunal has ample powers to decide the matter of disqualification on the nomination day and the Tribunal also has the powers to grant the remedy sought for. The learned counsel defended the impugned order and submitted that the learned Tribunal has rightly rejected the application and the instant writ petition has no force in it. He contended that the petitioner has no locus standi. The learned counsel referred to case titled Ch. Rukhsar v. Ch. Arshad etc. and prayed for dismissal of the petition. We have heard the learned counsel for the parties, perused the record of the petition and case-law referred to with utmost care. In view of the proposed conclusion, we will not discuss the merits of the case as well as the case law referred to and relied upon by the learned Advocates for the parties. The reason is that the learned Tribunal, has not disposed of the application filed on behalf of the petitioner on merits and any observation regarding the merits and demerits of the case will prejudice the case of either the party before the learned Election Tribunal, however, we would like to say that the Election Tribunal is a Tribunal of special jurisdiction which can assume the jurisdiction on a properly constituted petition. Section 51(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 makes it obligatory that if the election petition and every schedule and annexures to that petition are not signed by the petitioner and verified in any manner laid down in the Code of Civil Procedure, 1908 for verification of the pleadings, the Tribunal shall dismiss the same. After considering the relevant record and copy of the election petition, we are of the prima facie view that the aforesaid mandatory requirement of law is lacking in the case in hand, therefore, it was enjoined upon the learned Election Tribunal to dispose of the legal issues first which hardly required any evidence. If the objection is repelled then the learned Tribunal may proceed in the matter in accordance with law. The objection of the learned Advocate for the respondents that the instant petition is not maintainable for having been filed against an interim order is not sustainable. If no alternate remedy is available then a party affected by an order passed by a Tribunal can invoke the supervisory jurisdiction of this Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The same is the latest view of the apex Court. In view of above, the petition is accepted and impugned order dated 25-4-2011 passed by the learned Election Tribunal Azad Jammu and Kashmir is hereby vacated and the learned Election Tribunal is directed to dispose of preliminary objection regarding the verification of the petition in accordance with the provision contained in the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. AG/63/HC(AJ&K) Case remanded.