2018 PLP 119 (CLCN)

RAJA SAEED AKRAM KHAN, J.

This appeal by leave of the Court has been directed against the judgment of the High Court dated 26.12.2017, whereby the writ petition filed by the appellants, herein, has been dismissed.

2. The facts necessary for disposal of this appeal are that the appellants, herein, filed a writ petition before the High Court, challenging the order passed by the Commissioner, Muzaffarabad Division (Appellate Authority Delimitation), dated 16.09.2017. It was averred in the writ petition that the Azad Jammu and Kashmir Government, vide notification dated 21.04.2017, has declared minimum population for the constitution of new wards of Municipal Corporations as 2000 and maximum population as 6000. It was alleged that a new ward No.11, Upper Tariqabad, Muzaffarabad, has been proposed by the Delimitation Officer, Muzaffarabad vide order dated 16.08.2017, which has been confirmed by the Commissioner, Muzaffarabad Division (Appellate Authority Delimitation). It was further averred that Mozia Upper Sathra and Lower Sathra, jointly having population of more than 2000 and keeping in view the spirit of notification dated 21.04.2017, the Delimitation Officer had to constitute a new unified ward, namely Sathra ward, but without taking into consideration the geographical position as well as population of Mozia Sathra, the Delimitation Officer attached the Lower Sathra with Lower Tariqabad and Upper Sathra with Upper Tariqabad. The appellants sought cancellation of order passed by the Commissioner, Muzaffarabad Division (Appellate Authority Delimitation) and direction for constitution of a separate ward for Mozia-Sathra. The learned High Court after hearing the arguments of the learned counsel for the appellants, herein, dismissed the writ petition in limine vide impugned judgment/order dated 26.12.2017, hence, this appeal by leave of the Court.

3. Kh. Shoukat Hussain Ganai, Advocate, the learned counsel for the appellants argued that the impugned judgment is against law and the facts of the case which is liable to be vacated. He contended that as per amended clause (a)(iii) of the Azad Jammu and Kashmir Local Government Election Rules, 1983, the Secretariat Local Government and Rural Development, Muzaffarabad issued a notification on 21.04.2017, according to which, the population of a single-member ward of Municipal Corporation shall not be less than 2000 and more than 6000. He added that the population of Mozia Sathra is more than two thousand, therefore, constitution of independent ward of Mozia Sathra was justified but the Delimitation Authorities in violation of the spirit of Government notification (supra) divided and merged Mozia Sathra into different wards. In this way, the Delimitation Authorities failed to discharge their duties but the learned High Court without appreciating the real controversy involved in the matter dismissed the writ petition in limine, hence, interference by this Court is warranted under law. The learned counsel in support of the arguments drew the attention of this Court towards notification dated 21.04.2017 and a site sketch of the area, himself prepared by the appellants, available at page 25 of the paper book and prayed for acceptance of appeal.

4. On the other hand, Mr. Raza Ali Khan, Advocate-General, strongly controverted the arguments advanced by the learned counsel for the appellants. He submitted that the impugned judgment is perfectly legal, hence, not open for interference by this Court. He contended that new wards of Municipal Corporations cannot be constituted at the sweet will of any person/party. He added that the wards have been constituted while keeping in view the geographical position of the area and no violation of Government notification dated 21.04.2017, has been committed. He lastly submitted that as no violation of law has been committed by the Delimitation Authorities while constituting new wards, therefore, the learned High Court rightly dismissed the writ petition in limine.

5. We have heard the arguments and gone through the record made available along with the impugned judgment. The grievance of the appellants is that the population of Mozia Sathra is more than 2000, therefore, in view of the Government notification dated 21.04.2017, independent ward of Mozia Sathra should have been constituted, but the Delimitation Authorities in violation of the spirit of the Government notification divided the Mozia Sathra and merged it into different wards. To appreciate the stance taken by the appellants' counsel, we have examined the Government notification dated 21.04.2017. From the perusal of the notification it postulates that some amendments have been made in the Azad Jammu and Kashmir Local Government Election Rules, 1983. As the appellants based their claim on clause (a)(iii) of the notification, therefore, for better appreciation the same is reproduced here which reads as under:- "(iii) that where a ward is a single-member ward of Municipal Corporation its population shall not be less than 2000 and more than 6000." After going through the relevant clause of Government notification (supra), it appears that only a criteria has been laid down regarding the creation of wards that the population of a single-member ward shall not be less than 2000 and more than 6000. It has not been provided in the notification (supra) that every Mozia/village having population of more than 2000: must be constituted and declared as an independent ward of Municipal Corporation. The list of wards brought on record by the appellants itself shows that there are a large number of the wards in the Municipal Corporation, Muzaffarabad, consisting of different areas/villages, having the population of more than 5000. Thus, mere on the ground, that the population of Mozia Sathra is more than 2000, direction for creation of separate ward of Mozia Sathra cannot be issued, if such direction is issued the same may create many hardships. Even otherwise, as by not constituting the separate ward of Mozia Sathra, no violation of Government notification dated 21.04.2017, has been committed, therefore, the learned High Court has rightly dismissed the writ petition in limine as under law writ petition is only competent where there is any violation of law or any statutory provision or celebrated principle of law has been made, whereas, no such eventuality is available in the instant case. Reference may be made to a case reported as Azad Jammu and Kashmir Government and 4 others v. Dr. Muhammad Amin [2014 SCR 258], wherein it has been held that:- "Writ petition is only competent where there is any violation of law or any statutory provision or celebrated principle of law and justice." Moreover, the Delimitation Officer vested with the powers to constitute the new wards, after taking into consideration the geographical position and location of the area, has bifurcated Mozia Sathra as Upper Sathra and Lower Sathra and merged the area of Upper Sathra into Upper Tariqabad ward and Lower Sathra into Lower Tariqabad ward. We may also observe here that Tariqabad bypass road clearly bifurcates Mozia Sathra into Upper and Lower Sathra, thus, by including and merging the area of Upper Sathra into Upper Tariqabad ward and Lower Sathra into Lower Tariqabad ward, etc. (the areas being adjacent to each other), no legal right of the appellants has been infringed. Therefore, in such state of affairs, the appellants do not come within the purview of an aggrieved party. In view of the above, as we do not find any illegality in the impugned judgment, therefore, the same stands upheld and this appeal being devoid of any force is hereby dismissed with no order as to costs. ZC/38/SC(AJ&K) Appeal dismissed.