1. ' GHULAM MUSTAFA MUGHAL, C.J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief has been claimed:--- "It is therefore, most humbly prayed that the writ in favour of petitioner against the respondents may kindly be issued in following manners:---
(1) Respondents may kindly be directed by issuing high prerogative writ of mandamus to dispose of the applications/objections filed by the petitioner in respect of bogus registration of voters in the voter list of Constituency LA-40 Valley-5 as early as possible..
(2) Any other relief, for which the petitioner be deemed entitled may also graciously be granted in the interest of justice."
2. ' Facts of the case, shortly stated are that petitioner, herein, and his family are residents of Amarpura, Rawalpindi, where they have been entered in the voter list of constituency No,LA-40, Valley 5, from which, he has been elected as Member of Legislative Assembly of Azad Jammu and Kashmir. As the general elections are to be held in near future for which, the learned Chief Election Commissioner has directed his subordinate functionaries to prepare and update the electoral rolls, afresh. It is alleged that while updating and re-preparing the voter lists, respondents, with connivance of some political workers have managed to enter more than 1625 voters, who are not qualified to be entered as such, under the Electoral Rolls Ordinance, 1970. It is further claimed that as the petitioner is a candidate from LA-40, Valley-5, therefore, he also A filed an application before the Registration Officer/Revising Authority and finally before the Chief Election Commissioner, separately for deletion of the illegal, and non-qualified voters but no action has been taken by the authorities, even by the Chief Election Commissioner on the applications, which are liable to be disposed of before publication of the final voter lists.
3. ' The petition has been contested by the respondents by filing written statements. The learned Advocate-General has filed written statement on behalf of the official respondents, pleading therein that the respondents are committed to hold fair and transparent elections and for achieving that target, are taking every possible step including, excluding the bogus and non- qualified voters from the voter list. It is also stated in the written statement that they will not hesitate in redressing the grievance of any person regarding the preparation of electoral rolls.
4. Respondent No,5 has filed separate written statement, wherein he has raised various objections regarding the maintainability of the petition on the ground that the petitioner has no locus standi to file the instant petition because he is not directly or indirectly affected by any entry made in the voter list. It is alleged .That the petitioner has not challenged the bogus voters in light of the schedule issued by the Chief Election Commissioner, within the stipulated period and in light of the scheme laid down in Electoral Rolls Ordinance, 1970 and Rules made thereunder, hence, the petition merits dismissal.
5. Mr. Muhammad Yaqoob Khan Mughal, the learned Advocate for the petitioner, inter alia, argued that the petitioner has filed objections before the Revising Authority on the draft electoral rolls, but the said authority did not bother to hold an inquiry in the truth or otherwise regarding allegations of bogus and non-qualified voters entered in the voter list. He argued that a non-speaking and telegraphic letter is sent to the Chief Election Commissioner stating therein that no illegality has been committed while preparing the electoral rolls. He submitted that the petitioner also filed various applications before the Chief Election Commissioner but these applications remained unattended and no final order has been passed. He argued that similar other applications were filed by his rival candidate which have been decided without delay but the petitioner has been denied his statutory right of decision on his applications and in this way has been discriminated.
6. ' The learned Advocate-General, on the other hand, argued that the respondents are committed to hold free, fair and transparent elections and for that purpose, they are ready to entertain the grievance of any party under law, including the petitioner.
7. ' Kh. Manzoor Qadir, the learned counsel for respondent No,5 contended that a complete schedule was issued by the Chief Election Commissioner for filing claims/ objections on the draft electoral rolls. The claim filed by the petitioner was rejected by the Revising Authority and the same has attained finality. The learned counsel further contended that it was enjoined upon the petitioner to challenge the decision of the authority before the proper forum and now, filing of the instant petition is misconceived. In support of his submission, the learned Advocate placed reliance on a case titled, "MRs, Bakhtawar v. Abdul Majeed through legal heirs and another, [2001 SCMR 1423] ' We have heard the learned Advocates representing the parties and perused the record, carefully.
8. ' It may be stated that the learned Advocate-General has made a general statement that the respondents are committed to hold free, fair and transparent election and for that purpose they are ready to entertain any application and redress any grievance made by any voter including the petitioner. However, comments filed on behalf, of Secretary Election Commission are not in line with the statement of the learned Advocate-General. In the comments it is stated that a committee has been constituted for looking into the allegations levelled in the application but the needful could not be done due to the shortage of funds. It is not denied by the office of the Election Commission that applications under section 13(B), i.e. Annexures A. And B have not been filed by the petitioner.
9. Mere filing of the application will be of no use if some proper action is not taken in due course of time on these applications. Section 13(B) has been introduced through an amendment by the Legislature in the Electoral Rolls Ordinance, 1970 with a purpose behind it. The provision is enacted in view of the general complaints received from the public at large by the Chief Election Commissioner regarding the entry of non-qualified and bogus voters in the constituencies meant for the refugees settled in Pakistan. Though, the learned Chief Election Commissioner is vested with ample powers to C include or exclude any voter from the voter list, prepared for the-general elections of the. Legislative Assembly but this provision is a special one and has to be given affect with full force in order to prepare transparent voter lists for the refugees settled in Pakistan. The sections begins with 'Non-obstante clause. 'Non obstante' clause beginning with word "Notwithstanding" may create an exception, where there is a conflict between two provisions, or it may be clariticatory of original position and introduced only by way of abundant caution. In our view such like provisions have to be given full effect notwithstanding previous' provisions of the same statute and in case of conflict, the special clause, which begins with the 'Non obstante' clause shall have a prevailing effect.
10. ' Mr. M. Dilawar Mehmood, the learned Judge of the Lahore High Court, in Arif Hussain Shah's case, [PLD 1979 Lah. 603] in para 7 of the report has observed as under: '7 The precise question which calls for determination in this case is the effect of 'Non obstante' clause used in subsection (6). The Word 'Non obstante' means 'Notwithstanding' it means 'despite' or 'in spite of A 'Non obstante' clause is used in a provision to indicate that the provision should prevail despite any thing to the contrary in any provision. No doubt, one of the objects is to indicate that, despite any repugnancy between the provisions containing a 'Non obstante' clause and another provision the former should prevail."
11. ' As stated above, the applications filed by the petitioner i.e. For exclusion of the non-qualified voters from the Constituency LA-40, Valley-5 have not been denied by the respondents, which means that these applications are still subjudice before the learned Chief Election 4 Commissioner.
12. When a special right in shape of an appeal, review, revision or representation is given to an aggrieved person and for vindication of the same, a forum is also provided, then, it is the duty of such judicial or quasi judicial authority to decide the application filed before it within a reasonable time because the decision on such an application is a statutory right of the applicant. The procrastination of the decision tantamounts to deprive the petitioner of his statutory right. Kamal Sharif Rana's case, [PLD 1985 Lah. 135], and Molana Ghulam Din's case 1998 PLC (C.S.) 1364, are the direct authorities on the point. Rule of law laid down in both the cases is that when an application or appeal is made to the authority, who is vested with the. Powers to decide such an appeal or application, then, decision thereupon is the right of the aggrieved person.
13. ' In view of above it stands concluded that the petitioner is entitled to have decision on his application without delay, within a reasonable time. The contention of Kh. Manzoor Qadir, the learned Advocate for respondent No,5 that the petitioner has not challenged the proprietary and legality of the final voter list under the relevant scheme of law and allowed the same to attain finality is devoid'of any force. This contention of the learned Advocate has been sufficiently answered with reference to Arif Hussain Shah's case, (supra). It is in our judicial notice that electoral rolls are in the process of preparation and the matter has not yet been finalized. Be that as it may the bogus or non-qualified voters could be deleted by the Chief Election Commissioner notwithstanding the fact that other remedy has or has not been availed. No time period is fixed by the Legislature for this purpose. So far as the objection of the learned Advocate for respondent No,5 that the petitioner is not aggrieved is concerned that is also misconceived because if the bogus voters remain in the voter list, the petitioner may be put in ugly position.
14. ' In view of above, the petition is accepted and respondents are directed to dispose of the applications of the petitioner within 30 days from the order of the Court and result thereof shall be communicated to the petitioner.