1. ' GHULAM MUSTAFA MUGHAL, C.J.--- The above captioned petition is directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby a writ of prohibition is sought against respondents Nos.1 and 2 to refrain from proceeding on the application filed by respondent No,3, herein, on 19-2-2011.
2. Facts necessary for decision of the petition are that respondent No,3, herein, made a written application on 19-2-2011 to the learned Chief Election Commissioner (hereinafter shall be referred as respondent No,1) alleging therein that while preparing voter list of LA-39 Valley 4, numerous illegalities have been committed by its subordinate staff including entering non-qualified and bogus voteRs, It was further stated that claims/objections were filed before Revising Authority but the same have not been attended. A request was made for correction of the alleged irregularities.
3. Respondent No,1, herein, vide his order dated 19-2-2011 sent the said application for further proceedings to Secretary Election Commission. Record reveals that a committee was constituted for inquiry into the allegations listed in the application. Petitioner, herein, has challenged the order of Chief Election Commissioner, constitution of the committee and further proceedings on the ground that same are being conducted by the respondents without jurisdictional competence. It is further alleged that an ample opportunity was provided to the voters/interested persons for filing objections before finalization of voter lists and respondent No,3, herein, and his supporters challenged about 800/900 voters listed in the voter list of LA-39 Valley 4 before the Revising Authority who after taking into consideration the objections and claims of the private respondent, revised/approved the final draft list, which is in process of publication and has attained finality. It is further alleged that even the private respondent, herein, has moved the instant application with mala fide intention and without having any locus standi. It is stated that assumption of jurisdiction on an incompetent application, proceedings in furtherance thereof are being taken without lawful authority hence, respondent No,1 and his subordinate functionary may be prohibited from proceeding further and orders passed on the said application on 19-2-2011 and 8-3-2011 may be declared to have been passed without lawful authority.
4. ' Respondents No,1 herein, despite service has not filed written statement, however, respondent No,3 has controverted the petition by filing written statement. It is pleaded by him that petitioner has no locus standi for filing the application. It is further alleged that voters sought to be deleted, are necessary party and in their absence, this petition is incompetent. It is further pleaded that the petition is premature because no final order has been passed by respondent No,1 and only inquiry is being conducted which may end in acceptance or rejection of the application. It is also stated that the petitioner has filed written objections before respondent No,1, hence, without waiting the final result, no direction can be issued in vacuum. On factual side it is claimed that private respondent, herein, has represented the said constituency more than once, therefore, he has a right to ask for deletion of bogus and non-qualified voters inserted in the voter list with connivance 'of the staff of Chief Election Commission.
5. ' Mr. Mushtaq Ahmed Janjua, the learned Advocate representing the petitioner strenuously argued that under section 13-B of the Azad Jammu and Kashmir Electoral Rolls (Amendment) Ordinance, 2011, the Commissioner has been empowered to initiate proceedings for deletion of non-qualified voters on the application of any voter from the concerned constituency only. As respondent No,3 is not a registered voter in LA-39 Valley 4, therefore, he is not entitled to file any complaint before respondent No,1, herein. The learned Advocate argued that assumption of jurisdiction by respondent No,1, constitution of the committee and issuance of further process by his subordinate functionary on the application are coram non judice and without lawful authority. In support of his submissions the learned Advocate relied upon section 13-B of the AJ&K Electoral Rolls (Amendment) Ordinance, 2011. The learned Advocate further contended that on 5-11-2010 a notification was issued by respondent No,1 whereby complete schedule for preparation, filing of claims/objections, decision of the Revising Authority was given. The Revising Authority has finalized the voter list of LA-39 Valley 4 and the same is in process of publication. Thus, the proceedings have attained finality, therefore, respondent No,3 has challenged the same for frustrating complete procedure visualized by the AJ&K Electoral Rolls Ordinance, 1970 and Rules made thereunder. He argued that any proceeding in the garb of section 13-B of the amended. Ordinance will be a nullity in the eye of law and will give rise to endless litigation.
6. ' Conversely, Syed Shahid Bahar, the learned counsel for the respondent contended that section 13- B of the AJ&K Electoral Rolls Ordinance cannot be interpreted in a narrow sense, that only voter is entitled to challenge non-qualified voters none else. He argued that the private respondent, herein, has represented the constituency many time and is also a purposed candidate from the said constituency in the general election, therefore, is not precluded from making any application to respondent No,1 for deletion of the bogus and non-qualified voteRs, The learned counsel contended that notwithstanding filing of the application, the Chief Election Commissioner has ample powers to proceed under the AJ&K Electoral Rolls Ordinance, 1970 for deletion of the bogus and non-qualified voters from the Electric Rolls which, according to the learned counsel, is the fundamental duty of respondent No, l. The learned counsel further contended that as respondent No,1 has yet to make up his mind on the application in view of the result of inquiry and no final order has been passed by him, therefore, this Court cannot preempt in the jurisdiction of respondent No,
1. He argued that the affect of grant of petition by this Court tantamount to shift the proceedings for its own decision. The learned counsel also maintained that the petitioner has submitted to the jurisdiction of the Chief Election Commissioner by filing objections thus, has waived the right to challenge his order in writ jurisdiction. The learned counsel in this regard placed reliance on the following cases:---
(1) Muhammad Aftab Khan v. District Education Officer and 2 others 2001 PLC (C.S.) 28,
(2) Suleman Ahmed v. Tanveer Ahmed Mir 3 others 2002 PLC (C.S.) 714.
(3) Umar Hayat v. Azad Government and 3 others 1999 PLC (C.S.) 93.
(4) Muhammad Sharif v. Muhammad Manzoor and others [1993 SCR 92].
7. ' The learned counsel further contended that the petitioner is not aggrieved because he cannot protect the bogus voters by filing petition. According to him, the effect of acceptance of the petition will not provide any benefit to him rather by deleting bogus voters the supremacy of the Electoral Rolls could be maintained on one hand and transparency in the election will be ensured on the other. He argued that the petitioner, in fact, has filed this petition for interest of the others who have been entered in the voter list for ill-gotten gains and procuring bogus result in the coming elections, therefore, the petition may be dismissed for having been filed with ulterior motives.
8. ' We have heard the learned Advocates for the parties and gone through the record of the case.
9. ' In order to appreciate the controversy in its true perspective, the relevant provision included in the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, through amendment i.e. Section 13-B is reproduced as under:--- "13-B Deletion of non-qualified voters of refugees settled in Pakistan.--- (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, for electoral rolls of Jammu and Kashmir Refugees settled in Pakistan, the Commissioner on application of any voter from the concerned constituency, at any time---
(i) shall ask for state subject certificate or other documents from the voter and the applicant on the basis of which the voter is alleged to be qualified or not qualified, as the case may be in term of subsection (1) of section 10, within seven days;
(ii) shall send the documents received under clause (1) for verification of issuing authority within ten days.
(2) On receipt of verification report under subsection (1) if it is proved that the voter is not qualified to be registered as voter, the Commissioner shall delete the name of such voter from the electoral rolls forthwith.
(3) If the voter fails to provide documents required under subsection (1) within the specified time, the Commissioner shall delete the name of the voter from the electoral rolls forthwith."
10. A perusal of the above-reproduced provision of law reflects that Chief Election Commissioner is empowered to delete non-qualified voters from the voter list prepared for the refuges settled in Pakistan. This provision appears to have been enacted specially in view of the complaints of the public at large about inclusion of non-qualified and bogus voters in the voter lists for reserved seats in Legislative Assembly for refuges of Jammu and Kashmir, settled in Pakistan. The provision has an overriding effect, therefore, has to be interpreted notwithstanding the existence of any other similar provision already available in the Ordinance or Rules meaning thereby that these powers can be exercised by the learned Chief Election Commissioner notwithstanding the fact that any voter list has attained finality under the AJ&K Electoral Rolls Ordinance, 1970 and Rules made thereunder. As an authentic electoral rolls is sine quo non for transparent elections, therefore, this power can be exercised by Chief Election Commissioner at any time even after publication of the Electric rolls. The only embargo placed on the powers of the Commissioner is that a complaint under section 13-B should have been made by a voter from the same constituency. Admittedly, respondent No,3 is not a resident of that constituency which fact is admitted by the learned Advocate for the private respondent, therefore, filing of the complaint and assumption of jurisdiction, constitution of the committee and issuance of notices by the Chief Election Commissioner are violative of the above reproduced provision of law. So far general powers of the Election Commissioner for correction, inclusion, deletion of voters are concerned those have been listed in section 15 of the AJ&K Electoral Rolls Ordinance, 1970 and the same can be exercised at any time. As stated above, section 13-B is a special provision which is enacted only for the constituencies relating to refugees settled in Pakistan. This provision empowered the Election Commission to exercise jurisdiction conferred on it at any 'time for deletion of the non-qualified voters but as stated above this jurisdiction is subject to the condition that the application under section 13- B must have been filed by a voter of the relevant constituency. By now, law is well settled that where the special procedure is provided for performance of an act then act should be performed in the same manner or not at all. In Mansab Ali's case [PLD 1971 SC 124] it was concluded that "it is an .Elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal, or revision equally suffer from illegality and are without jurisdiction." The same view was approved by the apex Court in a case titled Muhammad Bux Balouch v. The Market Committee and 2 others [1990 CLC 788]. The writ of prohibition is meant to restrain a tribunal or quasi judicial authority from taking proceedings, exercising jurisdiction not vested in it or the same being not exercised in the prescribed manner, hence, a case for issuance of writ of prohibition is made out in light of dictum of the apex Court laid down in Azad Jammu and Kashmir University, and another v.
11. Muhammad Malik and others [1998 CLC 783]. For assuming the jurisdiction by Court, Tribunal or Quasi Judicial Authority, it is imperative that cause brought before it for invoking its jurisdiction must be in accordance with limitation provided by the statute. Otherwise, the authority itself is bound to reject the application or appeal, as the case may be. A reference can be made to a case reported as Azad Govt. Of the State of Jammu and Kashmir v. Muhammad Shafi [PLD 1971 AJK 33].
12. ' The contention of Mr. Shahid Bahar, the learned Advocate for respondent No,3 that the petitioner is not aggrieved is devoid of any force. Though due to the deletion of the alleged non-qualified voters from the constituency LA-39 Valley 4, the petitioner will not suffer any loss and the loss if any has to be suffered by the voters, sought to be deleted but fact remains that petitioner has a right to ask respondent No,1 to perform his statutory duty strictly in accordance with the provision of section 13- B of the Electoral Rolls (Amendment) Ordinance, 2011. Our view is supported by Ch. M. Yasin's case [2010 SCR 17] wherein it was concluded that "an aggrieved party is one whose rights are threatened or whose rights are being denied or whose rights have been affected by a decision. The word "rights" is not used in strict juristic sense. It is sufficient if the person alleging to be an aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the loss of some personal advantage. A party who stands to lose or gain an advantage by observance or nonobservance of law is an aggrieved party".
13. In view of above, the petition is accepted and respondent No,1 is restrained to proceed on the application filed on behalf of respondent No,3 however, this order will not debar the learned Chief Election Commissioner to delete any bogus or non-qualified voter on the application made by any voter of LA-39 Valley 4 for the same purpose. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.