M. TABASSUM AFTAB ALVI.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, through which following relief has been solicited by the petitioner:-- "It is, therefore, very humbly prayed that an appropriate writ may very kindly be issued to restrain the official respondents from taking any action on the application of private respondent regarding deletion, alteration, amendments or addition on electoral rolls for LA-26 Muzaffarabad-3. Any order passed proceeding initiated and action done on the application of private respondent may kindly be reversed/struck down. Any other relief admissible under law may also kindly be grated in the interest of justice." Precise facts giving rise to the instant writ petition are that before announcement of election schedule, respondent No,1 has prepared electoral rolls for on-coming election to the Legislative Assembly of Azad Jammu and Kashmir as required by the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970. It is claimed that respondent No,1, through various notifications has fixed the dates for preparation, objections, completion and final publication of electoral rolls. In compliance of aforesaid notifications, the concerned functionaries have prepared the electoral roll, which was finally published on 30-1-2011. It is further stated that it was decided by respondent No,1 that any person, who is qualified to be registered as voter, may apply to the Registration Officer for registration of his vote till the announcement of election schedule. It is further claimed that after preparation/final publication of electoral rolls respondent No,1 has announced election schedule. It is also asserted in writ petition that petitioner being nominated candidate of All Jammu and Kashmir Muslim Conference, has filed his nomination papers for LA-26 Muzaffarabad, City-3, while the private respondent No,5 is a nominated candidate of Pakistan People's Party. It is further stated that on 13-6-2011 the private respondent No,5 moved an application to respondent No,1 alleging therein that some voters have illegally been registered in his constituency, whose names be deleted from the electoral rolls. On the above application, respondent No.1 has directed to the respondent No,3 for deletion of the voters as indicated in A the application submitted by the said private respondent. It is further claimed that respondent No,3, in compliance of the order passed by the respondent No,1 has started the process of deletion of a large number of voters. The petitioner has challenged order and proceedings initiated on the application of the private respondent No,5 through the instant writ petition filed before this Court on 15-6-2011. The writ petition was at preliminary stage, when an application on behalf of Raja Muhammad Farooq Haider Khan, a contesting candidate of constituency No,3 was moved on 17-6-2011 for impleading him as party in the line of respondents. The application was objected on behalf of the petitioner through detailed objections filed on 20-6-2011. However, in the interest of justice, we allowed the application while exercising our powers under Rule 37 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 coupled with Order I, Rule 10 of Civil Procedure Code. The learned counsel for the petitioner reiterated the grounds taken in the writ petition and submitted that no vote can be deleted from voters list without providing him an opportunity of hearing. The learned counsel further submitted that after last date for filing objections the belated application filed by the private respondent No,5 could not be entertained by the respondent No,1 under law. The learned Counsel also submitted that application moved by the private respondent No,5 was referred by Chief Election Commissioner for necessary action to respondent No,3, who has started proceedings and despite efforts the copy of the same has not been supplied to the petitioner. The learned counsel for the petitioner in support of their contentions relied upon the following case-law:--
(i) Dr. Babar Hameed Chohan v. Muhammad Afzal Munir and 2 others [1984 SCM R 537];
(ii) Din Muhammad Balouch v. The Returning Officer Police Station 77 Assistant Commissioner, Karachi and 35 others [1986 CLC 1386];
(iii) Lai Babu Hussain and others v. Electoral. Registration Officer and others [AIR 1995 SC 1189]. In case of Dr. Babar Hameed Chohan v. Muhammad Afzal Munir and 2 others (1984 SCM R 537) it was held that name of candidate appearing in more than one electoral rolls is not a disqualification under section 25, Electoral Rolls Act, 1974. In case of Din Muhammad Balouch v. The Returning Officer Police Station 77 Assistant Commissioner, Karachi .And 35 others (1986 CLC 1386) it was held that names of voters entered twice/thrice in such roll would not lead to presumption that such person had cast several votes in accordance with entries of list. In case of Lal Babu Hussan and others v. Electoral Registration Officer and others (AIR 1995 SC 1189] it was held that names can be deleted from the electoral roll on - the ground of suspicion about citizenship, however, before doing so, an opportunity of being heard to the concerned must be meaningful.
While controverting the arguments raised by the learned counsel for the petitioner, the learned counsel for the respondents submitted that petitioner is not an aggrieved party, hence this writ petition is not maintainable. It is strenuously argued that the private respondent No,5 moved an application for deletion of alleged forged names from voters list and on the above application, Chief Election Commissioner (respondent No,1) solicited a report from respondent No,3, hence, writ petition is pre-mature because no order has been passed on the application by the respondent (Chief Election Commissioner) yet. The learned counsel further submitted that application was moved by the private respondent No,5 under Section 15(C) of Electoral Roll Ordinance, 1970 which was maintainable. The learned counsel for the respondents in support of their contention relied upon a case titled Noorul-Amin v. Govt. Of the State of Azad Jammu and Kashmir and 2 others PLD 1987 AJ&K (HC)
88. In case of Noor-ul-Amin v. Government of the State of Azad. Jammu and Kashmir and 2 others (PLD 1987 AJ&K 88) it was held that person suffering loss or curtailment of privilege or right in consequence of non-performance of legal duty shall be sufficient to qualify an applicant as 'aggrieved person'. After hearing the learned counsel for the parties, we have perused the contents of writ petition and appended documents with utmost care. First of all, we attend the preliminary objections raised on behalf of respondents. The contention of the learned counsel for the respondents that the petitioner is a candidate from LA-26 Muzaffarabad City-3 and application for correction and deletion the name of alleged forged voters and all those have been repeated in the electoral rolls of more than one electoral area, therefore, petitioner is not an aggrieved person. As the petitioner is admittedly a candidate from LA-26 Muzaffarabad City-3 and in case of deletion of names of voters, his interest can be infringed, hence, according to our considered view, he is an aggrieved party. It is not necessary for the purpose of invoking writ jurisdiction of the High Court that petitioner must be in possession of a juristic right, so as to qualify him as an aggrieved person. The above point came up for conclusion before the apex Court in a case titled Muhammad Islam v. Abdul Rashid and others (1993 SCR 37), relevant para. Of the report at Pages Nos.39 and 40 is reproduced as under:-- "It may be stated that for maintaining the writ jurisdiction it is not necessary that the petitioner seeking remedy by way of a writ must possess a juristic right so as to be an aggrieved person. It is sufficient if he shows that he has some tangible interest in the matter. The respondent No,1 has amply proved the aforesaid condition required for maintaining his writ petition and seek relief through the same writ. It may be further stated that no fault can be found with the findings of the High Court that the Chairman, Municipal Committee, had no authority to make the allotment of the plot in question in favour of the appellant". The above mentioned point again came under consideration before the honourable Supreme Court in a case titled Ch. Ali Muhammad Chacha v. Azad Government and 4 others (2008 CLC 1648) and relevant para. Is reproduced as below:-- "Aggrieved person does not mean that he shall have a strict juristic right. It is sufficient if he successfully established that he has an existing right to assail the order which is illegal and adversely affects his right whatever they may be or he should establish that he has some interest in the cause".
In view of above, preliminary objection raised on behalf of the respondents that petitioner is not an aggrieved person is hereby repelled. The next preliminary objection of contesting respondents that the instant writ petition is pre- mature is also not maintainable as the private respondent moved an application after the prescribed period fixed by the official respondents and on the above belated application, respondent No,1, as admitted by the learned counsel for the said respondents, has initiated proceedings, therefore, we are of the view that writ petition is not pre-mature the objection of the respondents, therefore, is overruled. The contention of the learned counsel for the respondents that the application was moved under section 15 of the Azad Jammu Kashmir Electoral Rolls Ordinance, 1970. The provision is reproduced as under in order to appreciate the controversy in its true perspective. Section 15 reads as under:-- "15 Commissioner's power to include a name in an electoral roll:-- The commissioner may, at any time order:--
(a) The inclusion in an electoral roll of the name of any person entitled to be enrolled on such electoral rolls, and such name shall, from the date of such order, form part of the electoral roll;
(b) The exclusion from an electoral roll of the name of any person who has died or has become disqualified to be a voter, and such 2011 Usman Ali Khan v. Chief Election Commissioner, Azad J&K 37 Azad Government (M. Tasbassum Aftab Alvi, J) name shall, from the date of such order, stand excluded from that roll; and
(c) The removal of the name of any person from an electoral roll where such removal becomes necessary due to the repetition of the name in the same electoral roll or in the electoral rolls of more than one electoral area."
According to our considered view under Section 15 ibid the Election Commissioner could not initiate proceedings on the application of a party. The abovementioned power given to Election Commissioner for purposes contained in the reproduced section and can be exercised by the Commissioner suo motu without their any application. For the purpose of deciding controversial issue sections 6 and 7 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970 needs to notice their sections are as under:-- "6. Preliminary publication.
(1) As soon as may be, after the draft electoral roll for an electoral area is ready, the Registration Officer shall publish it in Form I together with a notice inviting claims and objections, at his office and at such other place or places as the Commissioner may direct.
(2) The draft electoral roll mentioned in area shall be prepared on the basis of statements obtained under Rule 5 and no such roll shall be published until to the extent of at least ten per cent by a house to house visit by a person other than the persons obtaining and verifying the statements.
(3) Notwithstanding anything contained in sub-rule (2) or Rule 5 where in the opinion of the Commissioner it is not possible, for the preparation of the electoral of any electoral area, to follow the procedure laid down in that sub-rule or that rule, he may direct that the electoral roll shall be prepared in such manner as he thinks is best suited for the purpose.
(4) When the Registration Officer publishes under Rule (1) the draft electoral roll for an electoral area the notice for inviting claims and objections to be published therewith shall clearly mention the period fixed under Rule 7 during which such claims and objections shall be filed.
7. Period for lodging claims and objection.--Every craims for inclusion of a name in the electoral roll, and every objection to, or application for correction of any entry therein shall be lodged within a period of thirty days next following the date of the publication of the draft roll under Rule 6." As the private respondent No,5 failed to file application/ objections according to above mentioned statutory provisions, hence, we constrained to hold that application filed by the said private respondent before the Chief Election Commissioner was not maintainable. The respondent-Chief Election Commissioner in case of any gross error or irregularity in preparation of an electoral roll may correct the same while exercising his powers under sections 10 (6 and 7) of the Azad Jammu and Kashmir Electoral Rolls Ordinance,1970, which are also reproduced as under:-- "(6) If the Commissioner, on account of any gross error or irregularity in the preparation of an electoral roll for any electoral area published under subsection (4), considers it necessary so to do, he may by order direct that:--
(i) the electoral roll for that area be amended, revised or corrected in such manner as the Commissioner may deem it;
(ii) the electoral roll or draft for that area shall stand cancelled and that an electoral roll for such area be prepared afresh in accordance with the provision of the Ordinance or Rules made thereunder.
(7) An electoral roll shall be revised, amended or corrected in the prescribed manner, as and when necessary, so as:--
(i) (a) to correct any entry or supply any omission therein; or
(b) to include the name of any qualified person whose name does not appear on such roll; or
(c) to delete therefrom the name of any person who has died or who is or has become disqualified for enrollment on such roll.
(ii) An electoral roll, as amended and corrected, from time to time, shall be maintained in the prescribed manner and shall, together with a notice inviting application for further amendment and correction, be kept open to public inspection, and copies of such rolls shall be supplied to any person applying therefor, on payment of such fee as may be prescribed." A combine study of the above statutory provisions make it clear that the respondent/Commissioner could not initiate proceedings on the application of the private respondent No,5 for correction of gross error or irregularity in the electoral rolls. However, while exercising suo motu powers under sections 10 (6 and 7) read with section 15 of the Azad Jammu and Kashmir Electroral Rolls Ordinance, 1970 the Comminnioner may correct eletoral rolls at any time. Before making corrections an opportunity of hearing to concerned voters is demand of law and justice, hence, before deleting the names, if asny the principle of audi altram partum shall note be violated because even otherwise a voter has a right tom get enter his vote at any place if he adopt the same as place of his ordinary residence.
In view of above, writ petition stands disposed of in limine.