' The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioner:-- "It is, therefore, most humbly prayed that while accepting the captioned writ petition, the respondents may be directed to hold/conduct elections for Local Councils throughout the territory of Azad Jammu & Kashmir without further delay. It is also prayed that the Prime Minister/Chief Executive of Azad Government and Minister for Local Government & Rural Development of the State of Jammu and Kashmir may be directed to fix the date for holding elections of Local Councils, as per their announcement. Any other relief admissible under law may also be granted in the interest of justice."
2. The precise facts culminating into filing of the instant writ petition are that petitioner is a practicing Advocate of Supreme Court of Azad Jammu & Kashmir who remained as Vice- Chairman of Azad Jammu & Kashmir Bar Council twice and presently is a member of the aforesaid Bar Council. The Azad Jammu & Kashmir Legislative Assembly, under its legislative powers,' enacted the Azad Jammu & Kashmir Local Government Act, 1990, for constitution of Local Government Institutions throughout the Azad Jammu & Kashmir territory. It is averred that Local Councils had been successively functioning upto 1996 and after that the Azad Government of the State of Jammu & Kashmir, instead of conducting elections of Local Councils as required by law, appointed Administrators on political basis for running affairs of the said Councils, which jeopardized the purpose of constitution of the same and also deprived of the people from their statutory and fundamental rights to elect their representatives. It is maintained that every elected Government in the Azad Jammu & Kashmir after 1996, had been publically making commitments to its voters for conducting elections of the Local Councils, however, such commitments were never fulfilled and instead delaying tactics were adopted, hence, petitioner constrained to file the instant constitution petition.
3. The writ petition has been resisted by respondents through written statement dated 19.05.2014. It is stated that petitioner is not an aggrieved person who failed to point out violation of his any constitutional right. It is maintained that petitioner seeks direction against respondents to conduct elections in the Azad Jammu & Kashmir State, which type of relief cannot be granted as requirement of Order I Rule 8 of Civil Procedure Code, 1908, has not been fulfilled. It is alleged that respondents are performing their duties for smooth running of local bodies in light of Sections 79
(2) (B) and 99(1) of Local Government Act, 1990. It is further stated that for holding elections of Local Councils new voter lists are required to be completed and for this purpose the estimate of Rs.
20,24,32,950/- was already sent to Finance Department for release of grant, which could not be sanctioned, hence, craved for dismissal of writ petition.
4. The petitioner himself appeared in the case and argued that under Section 3 of Local Government Act, 1990, (hereinafter to be called as Act, 1990) it is statutory obligation of the Government to appoint Election Commissioner, who shall be responsible for organization, conduct and supervision of Local Government Institutions. He further submitted that as per Section 17 of the Act, 1990, for the purpose of elections of the Local Councils, the electoral rolls prepared for the elections of Legislative Assembly shall be the electoral rolls for elections of Local Councils, therefore, Government cannot escape from its responsibility to hold election on the pretext of non- availability of funds for framing electoral rolls. He further maintained that under Section 18 of the Act, 1990, every person enrolled as voter shall have a right of vote, however, the aforementioned statutory provisions have been violated by all the Governments since 1996. He further submitted that Section 79 cannot be read in isolation from Sections 77 and 78 of the Act, 1990. He maintained that under sub-section (3) of Section 79 when a Local Council is superseded then fresh election of the said Local Council shall be held within a period of ninety days after expiry of the period of supersession of such Council. He argued that election of Local Councils throughout the territory is basic requirement of political justice and even people were not deprived of from the aforesaid elections during Marshal Law regime of late General Hayyat Khan and submitted for acceptance of writ petition. The petitioner in support of his contentions referred to and relied upon the following case law:--
(i) President Balochistan High Court Bar Association v. Federation of Pakistan and others [2014 SCMR 01].
(ii) Arshad Mehmood v. Commissioner/Delimitation Authority Gujranwala and others [PLD 2014 Lahore 221].
' In case of President Balochistan High Court Bar Association, supra, it was held by the apex Court of Pakistan, that Federal Government was duty bound to hold elections in the Federal Area and Provincial Governments in the provinces, in order to ensure participation of the general public in the administrative, political and financial affairs of the Government by establishing local bodies system.
' In case of Arshad Mehmood, ibid, it was, inter alia, opined by. a Full Bench of the Lahore High Court, that no political system was considered complete and democratic if it did not have a system of Local Government. It was further held that Legal Representative Government was a process that spannet and connected representation and administration at local levels which could not be gained without Local Government structure.
5. Sardar Abdul Sammie Khan, the learned counsel for respondents, submitted that for the purpose of Local Government elections, voter lists is a basic requirement, however, for the purpose of framing the same, funds up to the tune of Rs. 20,24,32,950/, were required which despite demand from the Finance Department in the year 2011, needful was not done. The learned counsel submitted that without following provisions of Order I, Rule 8 of Civil Procedure Code, the writ petition is not maintainable. He further argued that no any constitutional right of petitioner has been violated, therefore, he is not covering in the definition of an aggrieved party and submitted for dismissal of writ petition.
6. After hearing petitioner in person and the learned counsel for respondents at great length, I have perused the contents of writ petition and examined the appended documents. Since its inception, Pakistan has embarked upon a number of rural and agricultural development programs to increase the productivity and quality of rural life. These programs were partially or fully extended to all the provinces of the country including Azad Jammu & Kashmir. Almost all the successive programs of rural development, in different forms, were followed the model of development from above, maintaining a key role for the public officials in the rural areas. The idea of "community development"- development through community based village organizations based on popular participation, was much in vogue in the early 1950. The same was introduced in India as a partnership between the local (elected) councils and Government departments. In Pakistan, after the visit of a group of the Pakistani Government officials to the United States to study the rural extension work in 1951, it was decided to adapt the American extension model to the conditions in Pakistan with the financial and technical assistance from the United States. It was suggested that Pakistan needed an organized effort to provide for various needs of the villagers; to identify things that villagers needed and to bring the different nation-building government departments together to meet the needs. All of these ideas were packaged into the, Village Agricultural and Industrial Development (V-AID) Program in 1953. The officially stated objectives of the V-AID Program were to increase the output of agriculture and village industries for higher rural incomes and provide more water, schools, health care centers and other social creational facilities. The V-AID organization was put under the control of appointed Government officials, as Development Officers, Supervisors and Specialists to support and supervise the work of the front-line Village AID workers. In each District villages were organized as a Development Area to be administered by a Development Officer. The Development Officer was to be supported by Supervisors and Specialists drawn from different provincial departments (Agriculture, Animal Husbandry, Health and Education) to gist the villagers to do their self-help work. The activities included in the Program were (i) Improvement in crop and Livestock production; (ii) Building roads, bridges, culverts, schools, wells and drains; (iii)
Planting trees; (iv) and removing health hazards. The village councils were appointed and not elected by the villagers. The most important link between the Government organization and villagers in each Development Area was the village AID worker- a multipurpose extension agent trained for one year in a Government V-AID training institute. Each Village-AID worker was expected to supervise 5-7 villages, or there were about 30 Village-AID workers in each Development Area. The Village-AID worker was supposed to act as a guide, philosopher and friend to the villagers and his functions included education, organization, motivation, formation of all purpose Village councils, modernization of agriculture, improvement in health facilities, building roads, giving credit, arranging marketing and generating self-help. The basic democracies system came on scene in 1959, which was designed to bring the elements of community development and political development together, especially at the local level. The Government administrative and development tiers were organized into five levels. The lowest tier was a union council, a group of villages comprising 1215 village councilors. On an average, such a union council covered a population of 8,000. The councils carried out social and economic development work in their respective areas. The problems that the union councils tried to solve were related to education, infrastructure, agriculture and sanitation.
7. The system of Local Councils was introduced by giving statutory backing for the first time in Azad Jammu & Kashmir through the Azad Jammu & Kashmir Basic Democracies Act, 1960, (hereinafter to be called as Act, 1960). As per Section 9 a the Act, 1960, a Union Council was established for a Union in rural areas; and a Town Committee for a town or a Union Committee for Union in Urban areas. Similarly a Tehsil Council for a Tehsil and a District Council for a District were constituted.
According to Section 11 of the Act, 1960, a Union Council was consisting of such number of elected and appointed members as may be fixed by the Election Commissioner and Commissioner respectively. The total number of appointed members of Union Council could not be more than one-half of the total number of its elected members. According to sub-section (5) of Section 11 of the Act, 1960, a Union Council could elect one of its members to be its Chairman and the Chairman so elected would be ex-officio member of the Tehsil Council within whose jurisdiction the Union was established. According to Section 12 of the Act, 1960, a Town Committee or a Union Committee was consisting of such member of elected and appointed members as may be fixed by the Election Commissioner. However, the total number of appointed members of a committee under sub-section (3) of Section 12 could not be more than one-half of the total number of its elected members. A Town Committee, or a Union Committee could elect, one of the members of the committee to be the Chairman and the Chairman so elected was ex-officio member of it. As per Sections 13 and 14 Tehsil Councils and District Councils were also established. According to Section 19 of the Act, 1960, the members of Union Council or a Town Committee were liable to be appointed by the Collector. However, members of Tehsil Councils could be appointed by the Collector with the previous approval in writing of the Commissioner and members of District Councils were liable to be appointed by the Commissioner after consultation with the Collector concerned. The term of office of Local Councils was fixed for 5 years period commencing on the day on which it assumes office. The functions of Local Councils, Town and Union Committees were inserted under Sections 29 and 30, however, as per Section 42 of the Act, 1960, the Controlling Authority could appoint a Secretary and one or more Principal Officers to be the servants of a Local Council for the purpose of performance of their duties in respect of Local Councils under the aforesaid Act.
8. The Local Government institutions were, however, established through Ordinance LXXXVI of 1979, promulgated by the President of the State of Jammu & Kashmir, while exercising powers as visualized by sub-section (1) of Section 41 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. As per Section 5 of the Ordinance, 1979, following Local Councils were established:--
(a) A Dehi Council for each Deh (village) or group of village as the case may be.
(b) A union council for each union.
(c) A Markaz Council for each Markaz.
(d) A District Council for each District.
(e) A Town Committee for an urban area consisting of such number of members as may be prescribed.
(f) A Municipal Committee for an urban area consisting of more than ten thousand population except in the case of a district headquarters where a Municipal Committee shall be constituted irrespective of its population.
' According to Section 6 of Ordinance, LXXXVI of 1979, every .Local Council was a body corporate, having perpetual succession and a common seal with powers, subject to the provisions of Ordinance and the rules framed there-under to acquire, hold, transfer property both movable and immovable and could by its name sue or be sued. According to Section 8 of Ordinance, 1979, a Union Council was consisting of such number of members as may be fixed by the Government. The provisions of Sections 8 to 13 further clarified about the establishment of the aforesaid Local Councils. According to Section 20 of the Ordinance, 1979, the term of Local Council was fixed as four years period commencing from the date on which it assumes office,
9. The present Local Government Institutions including Local Councils, however, have been established by Local Government Act, 1990. According to Section 3 of the Act, 1990, the Government may appoint Election Commissioner, who shall be responsible for organization, conduct and supervision of elections to the Local Government institutions and matters connected therewith.
According to Section 4, the Government may, divide the urban and rural areas of a District separately into a number of areas and declare by notification each such area to be a Local Council. According to Section 5 of the Act, 1990, the following Local Councils have been established:--
(a) Dehi Council for each Deh (village) or a group of villages as the case may be.
(b) A Union Council for each Union.
(c) A District Council for each District.
(d) A Town Committee for an urban area consisting of such number of members as may be prescribed.
(e) A Municipal Committee for an urban area consisting of more than ten thousand population except in the case of a district headquarters where a Municipal Committee shall be constituted irrespective of its population.
(f) A Municipal Corporation for an urban area having a population exceeding sixty thousand:-- ' According to Section 6 every Local Council shall be a body corporate, having perpetual succession and a common seal with powers, subject to the provisions of the Act, and rules frames there-under. According to Section 8, a Union Council shall consist of such number of members as may be fixed by the Government. However, no official shall be a member of Union Council.
According to sub-section (4) of Section 8 of the Act, 1990, the members of Union Council shall elect from amongst themselves a Chairman/Vice-Chairman of the Union Council. According to Section 9, a District Council shall consist of one nonofficial member, directly elected from each Union Council. The Chairman of Town Committees shall be the ex-officio member of the District Council for the purpose of discussion/approval of their schemes but shall not have the right to vote. The Chairman, Vice-Chairman and members of the Union Council concerned shall be entitled to participate in the meetings of District Council for the purpose of discussion and approval of their schemes. The officers of building department at the District level shall be the ex-officio, members of the District Council, but shall not have the right to vote, as shall be notified by the Government.
The non-official members of the District Council shall elect one of its members as Chairman and Vice-Chairman. According to Section 10, there shall be a Dehi Council for each village having population of not less than 500. However, in case of population in a 'village less than 500, it may be grouped with an adjoining village to form the area of Dehi Council. A Dehi Council shall consist of such number of members as may, by notification, be fixed by the Government. As per Section 11 of the Act, 1990, in territorial limits of Azad Jammu & Kashmir Town Committees have been constituted. A Town Committee shall consist of such elected members as may be fixed by the Government. The elected members of the Town Committee shall elect one of its members as its Chairman and Vice-Chairman. Likewise a Municipal Committee has been constituted under Section 12 of the Act, 1990. A Municipal Committee shall consist of such number of members as may, by notification, be fixed by the Government. The elected members of Municipal Committee shall in the prescribed manner, elect one of members to be its Chairman and Vice-Chairman. The elected Chairman of Municipal Committee shall be ex-officio member of the District Council. Same like manner, Municipal Corporation has been established under Section 12.A of the Act, 1990. The Municipal Corporation shall consist of such number of members as may, by notification, be fixed by the Government. The elected members of the Municipal Corporation shall, in the prescribed manner, elected a Mayor and Deputy Mayor of the Corporation from amongst themselves.
According to Section 17, the electoral rolls prepared for the elections of the Azad Jammu & Kashmir Legislative Assembly shall be the electoral rolls for elections of the Local Councils, after such re- arrangements as may be necessary. As per Section 21, the term of office of Local Council shall be for the period of 4 years commencing from the date on which it assumes office. However, on the expiry of term of office of Local Council, Government may extend its term of office for a period not exceeding 6 months or appoint any person for the like period to perform such function of the Local Council as may be specified. According to 2nd 'proviso of the aforesaid Section, the Government may dissolve a Local Council at any time before the expiry of its term and afresh election shall be held within ninety days from the date of such dissolution. According to Section 35, Government may set-up District Co-ordination Committees consisting of such number of members as may be determined by the Government. The terms, conditions and functions of the Local Councils have also been described in various provisions of the Act, 1990. According to Section 79 if, after such inquiry as may be necessary, the Government is of the opinion that a Local Council (a) is unable to discharge or persistently failed to discharge its duties; or (b) is unable to administer its affairs or meet its financial obligations; or (c) generally acts in manner contrary to public interests; or (d) otherwise exceeds or abuses its powers, the Government may after hearing objection from local council may, by notification in the official Gazette, declare the local council to be superseded for such period not exceeding the residue of term of such local council as may be specified. However, as per subsection (3) of Section 79 when a Local Council is superseded, fresh election of the same shall be held within a period of ninety days after expiry of period of supersession. The Government, therefore, cannot suspend local bodies and appoint Administrators for an indefinite period as per its sweet will. It is binding obligation of the Government to make necessary arrangements for elections of Local Councils in the country in order to ensure that elections are conducted honestly, justly, fairly and without corrupt practices. The right to be governed by chooser representatives through the free will of the members is constitutionally reality. The life,of representative of democracy cannot be envisaged within its political dimension; to participate in the political life of the nation without freedom to exercise political choice, the right of choice a political leader and elect the Government of his/her choice. The right to dignity is (sic) vital fundamental right. A Full Bench of the Lahore High Court, while dilating upon the point supra in case of Arshad Mehmood vs. Commissioner/Delimitation Authority Gujranwala and others [PLD 2014 (Lah) 2211, at page 253, held as follows:-- "28. Right to dignity under Article 14 carries perhaps the most vital of fundamental right. "Human dignity is the capacity for and the right to respect as a human being, and arises from all those aspects of the human personality that flow from human intellectual and moral capacity; which in turn separates humans from the impersonality of nature, enables them to exercise their own judgment, to have self-awareness and a sense of self-worth, to exercise self-determination, to shape themselves and nature, to develop their personalities and to strive for self-fulfillment in their lives. Human dignity includes the right to demand a political democratic structure of governance where rule of law is supreme and no one is above the law. A political system, which is not chosen by the people is repressive, autocratic and tyrannical besides being antithetical to self respect, freedom and human dignity. "An essential feature of South African constitutional politics that flows from the place of dignity in our basic law is the recognition of the ability of all human beings - through their capacity to reason--to legislate for themselves.. .It is our capacity for self- governance, and the fact that we are not simply slaves to our passions, that distinguishes man from beast. Our capacity for self-governance - the capacity of all human beings to reason their way to the ends that give their lives meaning - is larger what makes democracy the only acceptable secular form of political organization. For if we are capable of shaping our own ends as individuals, equal political treatment demands that we be able to shape them as citizens in a democracy. At a minimum, it Team we must be able to participate in the collective decision- making process that determine the ends of our community." Right to form and be a member of a political party (Article 17(2)) includes a broad sweep of political rights like the right to participate in the political life of the nation, right to contest elections, right to vote right to one man one vote, right to have a vote that is equal in weight as that of another citizen, right to fair representation, right to electoral equality, right to freely elect a leader, right to go to polls, etc. Freedom of expression under Article 19 includes the freedom to express a political choice through a vote and through a free, neutral and transparent electoral system. Going to the ballot is the collective expression of freedom of a nation. Right to equality under Article 25 guards against electoral discrimination and ensures electoral equality. The principle of "one man one vote" gets its security and strength from the constitutional right to equality. Quaid-e-Azam in his presidential address to the Constituent Assembly said: "If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he has had with you in the past, no matter what is his colour, caste or creed, is first, second, and last a citizen of this State with equal rights, privileges and obligations, there will be no end to the progress you will make." "Political Justice" blossoms under the shade of these fundamental freedoms."
' The political vision is to provide basic necessities of life such as food, clothing, housing, education, and medical relief to all citizens to reduce disparity in the round of individuals to provide citizens facilities for work and declared livelihood, to secure the well being of people by raising their structure of living by providing of wealth or the political aspiration under Act, 1990.
10. As per Section 18 of the Act, 1990, every person enrolled as voter on the electoral roll shall have a right to vote. The right to vote, therefore, is a fundamental right of every person. In Arshad Mehmood's case, ibid, at page 255 while dealing the point "right to vote" a Full Bench of the Lahore High Court, opined as under:- "30. All these political rights stand subsumed in the most rudimentary yet foundational right - the RIGHT TO VOTE. From this constitutional enfranchisement flows the right to express political choice in free and fair elections, right to elect a representative of one's choice, the right to an undiluted vote, the right to electoral equality, the right to have a vote equal in weight, value and strength as of another citizen, the right to have fair and equitable representation. The principle of "one man one vote" is therefore weaved deep into the political fabric of our Constitution and has to be guarded at every stage of the electoral process and more importantly at the time of delimitation.
' The importance of the right to vote.
31. In a constitutional democracy a vote is a symbol of political dignity and freedom of a citizen. It embodies freedom of choice, expression, equality and the license to participate in the political life of a nation and the right to establish self-government. Life of a citizen in a representative democracy demands a life of equal participation in the establishment of a democratic State.
Words of Sand Saood Jan J in Nawaz Sharif Case are instructive: "There seems little doubt that the paramount consideration before the Constitution-makers was that no section of the citizenry no matter how small it might be, should be deprived of equal participation in the national life and no one should feel that he has not had a fair deal." This freedom of expression and participation is actualized through a vote. The sanctity, weight and status of a vote, therefore, become central to any electoral process. Justice Sachs notes in August vs. Electoral Commission case: The universality of the franchise is important not only for nationhood and democracy. The vote each and every citizen is a badge of dignity and person hood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power i,t declares that whosoever we are, whether rich or poor, exalted or disgraced, we all belong to the same.. .Nation: that our destines are intertwined in a single interactive polity"Voting rights lie at the root of parliamentary democracy.
Indeed many would regard them as a basic human right."
' The principle of "one man one vote" falls from the concept of political justice. The protection of right to vote has been elaborated by the apex Court of Pakistan in case of Imran Khan and others vs. Election Commission of Pakistan and others [PLD 2013 SC 120]. At page 135 of the report it was observed as under: "24. Viewed in the above perspective, the discrepancies in the Electoral Roll of Karachi identified by the learned counsel for the petitioners by way of example, examined in conjunction with the admitted position of the Election Commission that a door-to-door verification of the entire residents of Karachi has not been carried out leads to the conclusion that the Electoral Rolls of Karachi do not inspire confidence and the possibility that a significant number of residents of Karachi may have been disenfranchised cannot be ignored. An accurate Electoral Roll is a sine qua non for the holding of a free, fair and transparent election, which is not only the command of the Constitution but also a Fundamental Right of the citizens, which appears to have been compromised qua the residents of Karachi"
' The holding of a free, fair and transparent local councils elections, therefore, is a command of law which is statutory obligation of P respondents jointly and severally.
11. The contention of the learned counsel for respondents, that no funds were available so that electoral rolls could be prepared for the purpose of Local Bodies elections is devoid of force. As per Section 17 of Act, 1990, electoral rolls prepared for the elections of the Azad Jammu & Kashmir Legislative Assembly, shall be the electoral rolls for elections of the Local Councils after such re- arrangement as may be necessary, therefore, pretext of non-availability of a sum of Rs.
20,24,32,950/- is a lame excuse on the basis of which, respondents cannot be allowed to frustrate the basic provisions of Act, 1990.
12. The contention of the learned counsel for respondents that writ petition has been filed by petitioner without adopting procedure as laid down under Order I Rule 8 of Civil Procedure Code, is also misconceived. The petitioner is a practicing Advocate of Supreme Court who has filed the instant writ petition for enforcement of statutory law. Therefore, in the instant us the aforesaid provisions are not attracted, hence, the preliminary objection is overruled.
13. The contention of the learned counsel for respondents that petitioner is not an aggrieved party within the meaning of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, is also devoid of force. Admittedly petitioner is an Advocate who has filed the instant writ petition for enforcement of law goes to the root of basic democratic system. Besides petitioner is also a State Subject presumed to be enrolled as a voter, hence, shall have the right of vote, therefore, covering in the definition of an aggrieved party as enshrined by Section 44(2)(a) of Interim Constitution Act, 1974. The similar objection was turned down by this Court in a Full Bench judgment titled Sajjad Hussain Shah and others vs. Azad Jammu & Kashmir Council and others [PLJ 2014 AJ&K 217 (FB)], wherein at page 243, of the report it was held as under: "47. In view of above stated position of law we hold that question of locus standi or aggrieved person employed in Section 44(2)(c) is sine qua non for invoking extraordinary jurisdiction of this Court but in appropriate cases where petition is filed in the larger interest of the society by a lawyer or a State Subject in which violation of the fundamental rights is pointed out then the question of locus standi can be construed liberally but subject to law laid down by the superior Courts in various pronouncements discussed herein above. The objection is, therefore, repelled."
14. Before parting it is liable to be observed that it is in my judicial notice that Commissioner Election Commission, is not appointed by the Government. According to Section 3 of the Act, 1990, it is binding obligation of the Government to appoint Election Commissioner for the purpose of organization, conduct and supervision of elections of the Local Government institutions and matters connected therewith, hence, necessary direction for appointment of Election Commissioner is part of the instant judgment.
15. The crux of above discussion is that by accepting the instant writ petition Government- respondent is directed to appoint Election Commissioner (Local Bodies) for organization, conduct and supervision of Local Bodies elections within one month. The respondents jointly and severally are also directed to hold Local Bodies elections throughout territorial limits of Azad Jammu & Kashmir within five months from the receipt of the instant Judgment. The costs shall follow the eventuality.