1. GHULAM MUSTAFA MUGHAL, CJ. - Through this petition filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 Notification dated 14.06.2010 has been challenged for having been issued without lawful authority.
2. Facts forming the background of the instant writ petition are that elections for office bearers of the Azad Kashmir School Teachers Organization were held on 27.05.2010. Syed Nazir Hussain Shah and Sardar Arif Shaheen contested the said election. Petitioners herein, were included in the panel of Sardar Muhammad Arif Shaheen. It is alleged that petitioners got 413 votes from Tehsil Dudyal whereas non-petitioner No. 3 and his penal got 392 votes. The result of the election was announced by the Presiding Officer in presence of agents of both the parties. The petitioners were declared successful. The result of the polling was sent by the Returning Officer of Tehsil Dudyal and District Returning Officer, Mirpur to respondent No. 1 (Chief Election Commissioner) for issuance of formal notification. Respondent No. 1 instead of issuing notification of the successful candidates illegally issued the impugned notification without any justification and declared non-petitioner No. 3 and his nominees as successful candidates. It is further alleged that the aforesaid declaration on behalf of respondent No. 1 is illegal, mala fide and without lawful authority.
3. Syed Nazir Hussain Shah Kazmi, the learned Advocate appearing for the petitioners contended that Sardar Muhammad Arif Shaheen's penal participated from Tehsil Dudyal for the election of the office bearers of Azad Kashmir School Teachers Organization and obtained 413 votes from 15 polling stations. The learned Advocate further contended that the rival panel of Syed Nazir Hussain Shah, obtained 392 votes. The learned Advocate maintained that result was prepared and announced by the Presiding Officer in presence of the polling agents of both the contesting candidates and thereafter, the same was submitted to the Returning Officer as well as District Returning Officer for notification, which was further transmitted to respondent No. 1 (Chief Election Commissioner), who was bound to issue notification accordingly, but without any lawful authority respondent No. 1 declared non-petitioners as successful candidates contrary to the results determined at Polling Stations and forwarded by Tehsil and District Returning Officers. The learned Advocate contended that as the notification under challenge is contrary to the results, therefore, the same may be declared illegal and without lawful authority.
4. Syed Shahid Bahar, the learned Advocate for respondents Nos. 1, 4 and 12 has not filed any comments, however, he has opposed the admission of the petition on the ground that no violation of law or any statutory rules has been pointed out, therefore, the petition is not maintainable. The learned Advocate contended that the question as to whether the petitioners were succeeded in the election by obtaining the claimed votes or the other party is winner is pure question of fact which could not be resolved without recording evidence and extraordinary jurisdiction is not the proper forum for the purpose.
5. I have heard the learned Advocates for the parties and gone through the record of the case.
6. It may be stated that writ jurisdiction conferred on this Court under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is an extraordinary jurisdiction and is subject to the restrictions and limitations placed by the said section. One of the conditions is that party invoking the jurisdiction of the Court must be aggrieved from the order under challenge. Another condition is that direction, prohibition or declaration should have been sought against a person performing functions in connection with the affairs of the State of Azad Jammu and Kashmir. Syed Nazir Hussain Shah Kazmi was confronted that how the AJ&K School Teachers Organization comes within the ambit of the aforementioned phrase, his reply was that the AJ&K School Teachers Organization is registered with the Government, therefore, the same is functioning in connection with the affairs of the State. This argument has no substance because the School Teachers Organization has no statutory backing nor the rules have been framed by the Government. As to whether any person, institution or local authority is performing functions in connections with, the affairs of the State, plethora of case-law is available. Suffice it to refer the case titled Salahuddin & 2 others v. Frontier Sugar Mills & Distillery Ltd., Takht Bhai & 10 others (PLD 1975 SC 244). At page 256 of the report their lordship observed as under:- "Now, that is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or State functions, involving, in one form or another, a element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order another regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Government to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities.
7. Examples of such statutory corporations are the National Bank of Pakistan, the West Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province."
8. Again at page 257 of the report it was observed:- "However, private organizations or persons, as distinguished from Government of semi- government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation of a province simply for the reason that their activities happen to be regularized by laws made by the State. Accordingly, a joirrt-stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its share-holders, cannot be regarded as a person performing State functions, just for the reasons that its functioning is regulated by law or that the distribution of its manufactured products is subject to governmental control in the public interest. The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or bodily corporate, may indeed be regarded as a person performing function in connection with the affairs of the Federation or a Province; otherwise not."
9. In a case titled Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676) following test for concluding that whether a body politic or body corporate is a person performing functions in connection with the affairs of the federation or a province, was laid down;- "(i) Whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power;
(ii) Whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii) Whether the bulk of funds is provided by the State.
10. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a province, otherwise not."
11. In a case titled Azad Govt, of the State of Jammu and Kashmir v. Ansar Burey [1994 SCR 243] it was concluded by the apex Court that a writ of Mandamus can only be issued if there is legal right, which vests in the aggrieved person and the person against whom the Mandamus is sought is under a legal obligation to perform or refrain from performing an act. It was further opined that a Court of law has to act within the four corners of law and not out of moral or humanitarian consideration, howsoever, compelling the same may be. In view of the afore-stated settled position of law, it cannot be held that AJ&K School Teachers Organization is body politic or body corporate, hence, is 'performing functions in connection with the affairs of the State of Azad Jammu & Kashmir.
12. In view of above, finding no force in this petition, it is hereby dismissed in limine.