' CHULAM MUSTAFA MUCHAL, C.J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, Notification No EC/S/458-72/2015 dated 7-3- 2015, issued by the Azad Jammu and Kashmir De-limitation Commissioner has been challenged for having been issued without lawful authority. A direction is also sought to the Chief Election Commissioner to complete the process of bye-elections scheduled on 29th March, 2015 on the basis of De-limitation notification dated 16-5-2011.
' The summary of facts for the purpose of decision of the captioned petition is that Barrister Sultan Mehmood Chaudhary an elected member from LA-3 Mirpur-III, resigned from the membership of the Legislative Assembly of Azad Jammu and Kashmir. The Chief Election Commissioner of Azad Jammu and Kashmir in view of section 25(3) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 issued the schedule for bye-elections in the said constituency vide notification dated 2-2- 2015 whereby the polling was scheduled on 15-3-2015, however, vide notification dated 28-2-2015 on the report of Returning Officer the elections were rescheduled and the new date for the purpose was fixed as 29-3-2015 It is alleged that while issuing schedule of bye-elections on 15-3-2015 the Chief Election Commissioner kept in mind the de-limitation of LA-3 Mirpur III, which was notified vide notification dated 16-5-2011 and the aforesaid notification was issued after complying with the provisions of section 7 of the Azad Jammu and Kashmir De-limitation of Constituencies Ordinance, 1970. It is further alleged that one Raja Khalil Yousaf, a contesting candidate from LA-III Mirpur-3 submitted an application to the Chief Election Commissioner and prayed for postponement of election for the reasons that areas forming a part of LA-III Mirpur-3 namely Khharak, Bohar Colony, Koonjari Colony, Mera Bhangian, Khhoo Colony, Bandral and Chandral were affected due to Mangla Dam Raising Project and the voters were displaced and have been settled in New City Mirpur, Mian Muhammad Town and some other areas within the limits of constituency LA-IV Mirpur-4. It was requested that election of LA-III Mirpur-3 is not possible until fresh de-limitation of the said constituency is ordered. On this application the learned Chief Election Commissioner issued notice to all the contesting candidates on 19-2-2015. All the candidates including petitioner No,1 appeared before the Chief Election Commissioner personally or through their representatives.
Except Raja Khalil Yousaf all the other contestants deposed full confidence in the Chief Election Commissioner and arrangement made by him for elections and requested for conducting the elections on the due date. The application of Raja Khalil Yousaf was rejected vide order dated 21-2- 2015. It is submitted that the returning Officer was bound to prepare the polling scheme in accordance with the order of the Chief Election Commissioner dated 21-2-2015 but the Chief Election Commissioner without making an inquiry and examining the record and complying with subsections (4) and (5) of section 7 of the Azad Jammu and Kashmir De-Limitation of Constituencies Ordinance, 1970 approved the De-Limitation of LA-3 Mirpur-III and LA-4 Mirpur-IV vide notification dated 7-3-2015, whereby, limits of LA-3 and LA-4 have been re- ascertained/divided in violation of law and with mala fide intention because the Chief Election Commissioner, who is also functioning as De-limitation Commissioner has not followed the relevant provisions for de-limitation of constituencies provided in De-limitation of Constituencies Ordinance, 1970.
' The petition has been contested by the respondents by filing written statement. In the written statement filed on behalf of respondents Nos.1 to 4 it is stated that petitioners are not aggrieved person in the eye of law, hence, the petition is not maintainable. It is further stated that delimitation has been notified vide notification dated 7-3-2015 and has been published in official gazette on 10- 3-2015 with the consent and agreement of all the political parties and contesting candidates, therefore, all the contesting candidates were necessary parties and in their absence the, notification under challenge cannot be quashed. It is further stated that writ petition is misconceived and has been filed on wrong assumption and misconception of facts as well as law.
It is pleaded that it is not correct that the provisions of section 7 subsections (4) and (5) of the Azad Jammu and Kashmir De-limitation of Constituencies Ordinance, 1970 have not been complied with.
It is further submitted that the factual position is totally otherwise and is proved from the record appended with the written statement. It is requested that petition may be dismissed on the ground of acquiescence.
' The learned Chief Election Commissioner has filed his separate written statement wherein the allegations levelled in the petition have been refuted and it is stated that all the proceedings have been taken in accordance with law and petition has been filed to sabotage the election process.
' Barrister Sultan Mehmood Chaudhary has filed an application for impleading him in line of the respondents. In view of the emergent nature of the case we have heard him under Rule 37 of the High Court Procedure Rules, 1984.
' Raja Muhammad Hanif Khan, the learned Advocate appearing for the petitioners vehemently argued that the Azad Jammu and Kashmir De-limitation Commissioner issued notification on 16- 5-2011 for delimitation of different constituencies including District Mirpur after complying with the provisions contained in subsections (4) and (5) of section 7 of Azad Jammu and Kashmir De- limitation of Constituencies Ordinance, 1970 hence, on the application filed by Raja Khalil Yousaf one of the candidates in the bye-elections the Chief Election Commissioner rightly held that there is no justification for ascertaining limits of constituency LA-3 Mirpur-III afresh and if this Chapter is open it shall not be possible to hold bye-elections within 60 days which is a constitutional requirement. He argued that while rejecting .The application of Raja Khalil Yousaf vide order dated 21-2-2015, the election Commissioner practically adopted the de-limitation notification dated 16- 5-2011, thereafter, fresh delimitation by him vide notification dated 7-3-2015 was without lawful authority, mala fide, contrary to his earlier decision, hence, was not legal. The learned Advocate contended that before issuance of the aforesaid notification besides, the other, Delimitation Commissioner has not considered the compactness of the area, basic object and other administrative effects in light of the De-limitation of Constituencies Ordinance, 1970. The learned Advocate further contended that as the procedure envisaged by the Azad Jammu and Kashmir De-limitation of Constituencies Ordinance, 1970 has not been complied with, therefore, whole exercise is void ab initio. The learned Advocate contended that a reasonable opportunity for objection and hearing was not provided before issuance of notification dated 7-3-2015. In support of his submissions the learned Advocate placed reliance on the following cases:---
1. Muhammad Akram v. Cap. C.A. Saeed Deputy Commissioner Election Tribunal Gujrat and another (PLI11965 Lah. 703).
2. Ch. Shafqatullah v. Delimitation Commission Pakistan through its Secretary (PLD 1971 Lah. 533).
3. Shahbaz Khan v. Election Commission of Pakistan through Chief Election Commission Islamabad (PLD 2003 Lah. 125).
4. Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat through Joint Secretary Council Secretariat Sector F-5/2 Islamabad and others (PLD 2013 AJK HC 34).
' Conversely Mr. Abdul Rasheed Abbasi, the learned Advocate appearing for the respondents submitted that petitioners are not aggrieved in the eye of law because no legal injury or otherwise has been pointed out by them in the writ petition, therefore, they cannot challenge the notification dated 7-3-2015. He further argued that delimitation notification was issued on 7-3-2015 and the same was published in official gazette on 10-3-2015 with the consent and agreement of the political parties and candidates after complying with the provisions of subsections (4) and (5) of section 7 of the Azad Jammu and Kashmir Delimitation of Constituencies Ordinance, 1970. The learned Advocate further contended that the petition has been filed on wrong assumption of facts and law that neither provisional delimitation was issued nor objections were sought from the locals of the area. He argued that fact of the matter is that objections were invited from public at large vide notification dated 2-3-2015 which were to be filed till 6th March. As no objections were received from any candidate or political party, hence, the de-limitation of constituencies was finally issued and notified vide notification dated 7-3-2015, which was published in official gazette on 10-3-2015. The, learned Advocate further contended that as the petitioners are guilty of acquiescence, therefore, they are not entitled to file the instant writ petition. The learned Advocate contended that order of the Chief Election Commissioner dated 21-2-2015 shows his bona fide because firstly it was thought by him that displaced voters can vote easily in LA-III but necessity of ascertaining fresh limits/de-limitation of the constituency in fact arose subsequently when Returning Officer sought guidance vide letter dated 26-2-2015. He argued that earlier order of the Chief Election Commissioner is not a bar for taking necessary steps for free and fair election and to give the voters their right of franchise. The learned Advocate maintained that after receiving the letter dated 26-2-2015 and considering the difficulties in establishing the polling station within the local limits of LA-3 Mirpur III the Chief Election Commissioner on 27-2-2015 issued notice to different persons and the same were received by the candidates and their representatives. The notice was also given in press. He argued that when nobody objected the delimitation then notification in question was issued and displaced voters were provided facility to cast their vote at their present place of abode which was a part of LA-IV now has been included in LA-3 Mirpur-III. The learned Advocate submitted that this de-limitation/ascertainment does not materially affect the process of election nor cause any legal injury to the petitioners or anybody else and the same can be ascertained even without notice. The learned Advocate also submitted that petition in fact has been filed on behalf of other persons just to get the election postponed and frustrate the whole election process. The learned Advocate further contended that even for the sake of arguments, if it is accepted that certain codal provisions have not been followed by the Chief Election Commissioner even then notification dated 7-6-2015 cannot be struck down because the same has been issued for carrying out the command of Constitution and in such like cases even a void order has not been quashed in exercise of writ jurisdiction by the superior Courts. The learned Advocate submitted that no time frame is given for completion of de-limitation procedure and course adopted by Chief Election Commissioner in the circumstances of this case was not unreasonable. In support of his submission the learned Advocate placed reliance on following cases:---
1. AJK Government and 4 others v. Mohi-ud-Din, Islamic University and 2 others (2014 SCR 382); 2 Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat Quetta and 2 others v. Murree Brewery Company Ltd. Through Secretary (PLD 2007 SC 386).
' Mr. Khalid Rashid, the learned Advocate appearing for Barrister Sultan Mehmood, submitted that no attested copies of the impugned orders have been filed with the petition, therefore, the petition merits dismissal for having been filed in violation of rules 32 and 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. The learned Advocate by referring to and relying upon section 2(2) of the Election Role Ordinance, 1970 contended that notwithstanding the displacement of the voters of the areas, now have been included in LA-3 Mirpur-III, their right of vote remained intact and they cannot be de-franchised and deprived from the right of vote which is their constitutional right. He placed reliance on the following cases:---
1. A.K. Trading Corporation v. Messrs Z. H. Construction and 2 others PLD 1998 SC (AJ&K) 7
2. Muhammad Afsar and 10 others v. Sultan Muhammad and 7 others (2006 SCR 8);
3. Raja lqbal Rashid Minhas v. AJK Council and 3 others PLD 2002 SC (AJ&K) 1 ' We have heard the learned counsel for the parties and gone through the record of the case.
'After hearing the learned Advocates representing the parties and scanning the record appended with the petition and written statement we are of the view that this petition is not maintainable on two grounds: firstly, the petitioners have not impleaded in line of the respondents all the contesting candidates in the bye-elections from LA-III Mirpur-III because the quashment of the notification dated 7-3-2015 and polling scheme prepared on the basis of this notification definitely will affect those candidates who are contesting elections from LA-III Mirpur-3. Law is well-settled that no writ can be issued in absence of a necessary party. A reference can be made to a case titled "Shahbaz Khan v. Election Commission of Pakistan through Chief Election Commission, Islamabad" [PLD 2003 (Lah.) 125], wherein at 135, it is observed as under:--- "It is better and appropriate to mention that final Notification was issued on 28-6-2002 in para.4 of which it is specifically mentioned that the Election Commission had received a total number of 945 objections/representations against preliminary delimitation of 849 constituencies out of which 307 pertained to the National Assembly and 638 to Provincial Assemblies. The details mentioned in the Notification reveal that the representations received qua District Sheikhupura were decided after providing hearing by the learned Member Election Commission on 15-6-2002. The petitioners did not implead any of the objectors as respondents. The petitioners did not attach order of the learned Member Election Commission along with the writ petitions. It is pertinent to mention here that the impugned Notification was finally issued on the basis of order of the learned Member Election Commission dated 15-6-2002. The petitioners did not challenge the vires of said order through these writ petitions. The writ petitions could, therefore, be dismissed as the petitioners failed to implead the objectors as respondents."
'We are also of the view that even due to the cancellation of notification dated 7-3-2015 and polling scheme prepared on the basis of this notification, 8080 voters who have been given the right of vote in B constituency LA-III Mirpur-3 after de-limitation would be condemned unheard, hence, they were also necessary party and writ must fail due to their non-impleadment in line of the respondents.
' Secondly, petitioners are not aggrieved from the issuance of notification dated 7-3-2015. For invoking extraordinary jurisdiction of this Court it is sine qua non that petitioner must be an aggrieved person and he must have locus standi for availing such jurisdiction. We are conscious of the fact that to qualify as an aggrieved person, it is not necessary that a right in strict juristic sense should be vested in him yet he should be able to show that due to violation of some law, rule or regulation he has been adversely affected or at least his tangible interest is affected. In Raja Iqbal Rashid Minhas, Advocate's case PLD 2002 SC (AJ&K) 1 the apex court has highlighted the principles for invoking the jurisdiction of this Court. While explaining phrase "aggrieved person" as has been explained in section 44 of the Interim Constitution Act, 1974, at page 191 of the report their lordships observed as under:- "It may be stated that generally that an aggrieved party is not in a writ of prohibition whose rights are threatened, in writ Precise facts of the case are that mandamus whose rights are being denied and in writ of certiorari whose rights have been affected by a decision. The word "right" is not used here 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 loose or gain an advantage by observance or non- observance of law is an aggrieved party. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced, which has wrongly deprived to him of something, or wrongfully refused him something of wrongfully affected his title to something. The petitioner being not falling in any of the categories, mentioned above, had no competence to lodge either the writ petition or an appeal in this Court against the impugned judgment of the High Court."
' Same view has been taken in case titled Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat Quetta and 2 others v. Murree Brewery Company Ltd through Secretary, [PLD 2007 SC 386] and at page 391 of the report it was observed that "It is sine qua non for invoking the jurisdiction of the High Court through a Writ Petition, under the clauses referred to above and under which the instant writ comes, that the petitioner must be an aggrieved person and he must have a locus standi for availing such a jurisdiction."
' Same view was taken by full bench of this Court in the following cases:---
1. Sherij Khan and others v. Azad Government of Jammu and Kashmir through its Chief Secretary and others 2013 CLC 684.
2. Noor-ul-Amin Bar-at-Law v. The Government of the State of Azad Jammu and Kashmir Per its Chief Secretary and 2 others (PLD 1987 AJK (H.C.) 88).
' Before us no material is placed by the petitioners to establish that in which manner they have been affected. By the issuance of notification dated 7-3-2015. It is also not shown by them that their any legal right or tangible interest has been infringed due to issuance of the impugned notification.
Though petitioner No,1 is contesting candidate D from. LA-III Mirpur-3 but it is also not shown by him that by giving right of vote to the displaced voters of the above mentioned areas how he is affected. Similarly, the other petitioners are also unable to show that they are in any manner affected by the issuance of the notification dated 7-3-2015.
'In view of above, decision on the other points raised in the petition and argued at bar would be academic.
' The upshot of the above discussion is that finding no substance in this petition it is hereby dismissed.