' M. TABASSUM AFTAB ALVI, J.---The captioned writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby validity and propriety of order recorded by Registration Officer/ Assistant Commissioner Rawalakot, dated 6th August, 2016, along with order of the Chief Election Commissioner, Azad Jammu and Kashmir, dated 8th August, 2016, have been challenged for having been passed without lawful authority. A direction in the nature of mandamus is also solicited against respondents Nos, 1 and 2 to include name of petitioner in the electoral roll, 2016, prepared for electoral area of Village Kharik, Circle Pothi Makwalan, Constituency Poonch-III, LA XIX of Legislative Assembly and accept his nomination papers for the election of the position of President of Azad Jammu and Kashmir, with prayer to allow him to participate in the process of polling scheduled to be held on 16th August, 2016.
2. The precise facts culminating into filing of the instant writ petition are that petitioner is 1st class State Subject of Azad Jammu and Kashmir, hails, from District Poonch. As per stance of petitioner his ancestors were enjoying ownership of immovable property comprising Khewat No,204/156 situated in village Kharik, Tehsil Rawalakot, which was mutated, after due process of law, in the name of petitioner and other legal heirs, after death of his father namely Abdullah Khan. It is stated that firstly petitioner obtained National Identity Card on 23rd August 2006, in which permanent address "BPO Topa Tehsil Rawalakot, District Poonch" was incorporated and after expiry of the aforesaid NIC, he again obtained new Identity Card with the same address, on 4th August, 2016. It is maintained that petitioner's name was entered at serial No,608 in the electoral roll of the year 2011, however, during process of recent preparation of voter lists, his name was not published in electoral roll, 2016, issued on 30th May, 2016. The aforesaid fact allegedly came into the knowledge of petitioner when he was nominated by the leadership of Pakistan Muslim League (N) to contest election to the position of President of Azad Jammu and Kashmir. An application, therefore, was submitted by etitioner to Registration Officer Rawalakot, on 5th August, 2016, through his Attorney, Muhammad Tahir Farooq, for the purpose which was rejected vide order dated 6th August, 2016.
Thereafter, petitioner invoked jurisdiction of the Chief Election Commissioner Azad Jammu and Kashmir and craved for entry of his name in the concerned electoral roll which was also returned in original to him for want of jurisdiction vide the impugned order dated 8th August 2016. It is stated that the Chief Election Commissioner, appointed Registration Officer in exercise of powers vested on him under rule 9 of the Azad Jammu and Kashmir Electoral Rolls Rules, 1970, vide notification dated 28th Feb, 2016. It is maintained that appointment of Registration Officer is continuous with a view to prepare, correct and made amendment of electoral rolls, who failed to perform his binding obligation including the Chief Election Commissioner, hence, the instant constitution petition.
3. The writ petition has been resisted by respondent No,1, through written statement, wherein, it is stated that petitioner has got no locus standi to file the instant writ petition as he has failed to point out violation of any provision of the Interim Constitution Act, 1974, or the Electoral Rolls Ordinance, 1970, or Rules, framed there-under, with regard to preparation, publication, manuscripts, settlement of claims and objections by the revisional authority as well publication of final electoral roll, 2016, of Constituency No,LA-XIX Poonch-III of the Legislative Assembly for election of 2016. It is stated that petitioner deliberately ignored and bypassed provisions of section 10 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, with regard to avail appropriate remedy of appeal/revision.
It is further stated that under the scheme of preparation or inclusion of left over voters in the electoral rolls, it is the Revising Authority matters everywhere whose decision is final, which authority in the instant case having not been approached by petitioner. It is further alleged that petitioner's application filed before respondent No,2 on 5th August, 2016, for enrolment as voter, although being untenable in law, yet on its rejection vide order dated 6th August, 2016, a proper and alternate remedy of appeal/revision was available to him, however, another wrong forum of the Chief Election Commissioner was chosen by him through appeal/revision which was turned down for want of jurisdiction vide the impugned order dated 8th August 2016. It is alleged that the Election Commissioner earmarked 12 days from 9th May 2016 to 20th May, 2016, for claims before Revising Authorities but petitioner slept over his rights to avail the proper remedy, hence, submitted for dismissal of writ petition.
4. The respondents Nos,2 to 4, have filed separate written statements, the contents of which are almost similar to written statement filed by respondent No,1, hence, the same are not reiterated here for the sake of brevity and convenience.
5. Raja Muhammad Hanif Khan, the learned counsel for petitioner strenuously argued that petitioner is admittedly state subject of Azad Jammu and Kashmir, who is permanent resident of village Kharik, Tehsil Rawalakot. He contended that name of petitioner was included at serial No,608 in electoral roll, 2011, in the concerned electoral area, along with his other family members.
He maintained that petitioner in the month of February, 2016, visited his native village, however, could not contact the concerned Enumerators of electoral rolls, hence, he handed over his NIC along with other relevant documents to his close relative Muhammad Tahir Farooq, to provide the same to the concerned team for entry of his name in electoral roll, 2016. He emphasized that despite providing the relevant documents to the concerned team, name of petitioner was not inserted in the electoral roll of the concerned area, which fact came into the knowledge of petitioner when he was nominated, to contest election for the position of President of Azad Jammu and Kashmir. The learned counsel pressed into service that petitioner in the given eventuality submitted an application to Registration Officer Rawalakot, through his Attorney, for inclusion of his name in electoral roll, 2016, of the concerned area on 05th August, 2016, which was unlawfully rejected through order dated 06th August, 2016. He submitted that petitioner then constrained to file an application to the Chief Election Commissioner, under Sections 10(A), 13-A and 15 of the Electoral Rolls Ordinance, 1970, which was unlawfully rejected on the ground that order passed by the Registration Officer was neither appealable nor revisable through the impugned order dated 08th August, 2016. He urged that under rule 20(1) of the Azad Jammu and Kashmir Electoral Rolls Rules, 1970, it was binding obligation of Registration Officer to insert name of petitioner which provisions were not taken into consideration, while passing order dated 06th August, 2016. He agitated that sub-rule (4) of Rule 20 was not applicable as process of election of members of the Legislative Assembly was already completed, hence, there was no embargo on Registration Officer, to add the name of petitioner in the concerned electoral roll. The learned counsel emphasized that the Chief Election Commissioner, was also enjoying vast powers under Sections 10(A), 13 and 15 of the Electoral Rolls Ordinance, 1970, to amend, revise or insert the name of any person at any time, which provisions were not appreciated in its true perspective while passing the impugned order dated 08th August, 2016. He maintained that facts incorporated in writ petition along with the appended documents are duly supported by an affidavit of petitioner, which were not controverted through counter affidavit. The learned counsel submitted that on the basis of the interim order of this Court dated 9th August, 2016, petitioner has already been elected to the position of President of Azad Jammu and Kashmir, however, craved that the orders under challenged ibid may be quashed as without lawful authority. He in support of his contentions referred to and relied upon the following case law:- ' Syed Qasim Gillani v. University of AJ&K and 5 others (2015 SCR 123)
' Fazal Hussain v. Fatima Bibi and 2 others (2015 SCR 1384)
' Akhtar Salem v. Registration Officer and others [PLD 1992 Lahore 34]; ' Mian Karam Illahi v. The Revising Authority of the Electoral Rolls, District Jhelum [PLD 1975 Journal 54]; ' An unreported judgment of the Supreme Court of Azad Jammu and Kashmir titled "Registration Officer, Registration Division Muzaffarabad/Assistant Commissioner M'abad v. Khan Muhammad and 2263 others decided on 11th May, 1993; and ' An unreported judgment of this Court titled "Khan Muhammad and 2263 others v. Registration Officer/Assistant Commissioner, Muzaffarabad and others" decided on 13th May, 1990.
' In case of Syed Qasim Gillani, supra, it was held by the Apex Court of Azad Jammu and Kashmir that when an affidavit is filed in support of the contents of the writ petition to prove a fact and the affidavit is not controverted, then said fact is deemed to have been admitted as correct.
' In case of Fazal Hussain, ibid, it was held by the Apex Court that admitted facts need not to be proved.
' In Akhtar Saleem's case, it was held by the Lahore High Court that provisions of section 18, Electoral Rolls Act, 1974, vest a right in a person, otherwise entitled to be enrolled as a voter, to file an application to have his name included in electoral rolls.
' In case of Mian Karam Illahi, supra, it was held by the Lahore High Court that powers of Chief Election Commissioner are vast to correct rolls both before and after final Publication of electoral rolls. Such powers, however, to be exercised sparingly and only to check patent errors.
' In an unreported judgment of the Apex Court of Azad Jammu and Kashmir titled "Registration Officer, Registration Division Muzaffarabad / Assistant Commissioner M'abad, ibid, it was held that under rule 20 of Electoral Rolls Rules, 1970, any person whose name is not included in an electoral roll prepared under the Ordinance and who claims that he was entitled to be enrolled on that roll may apply to the concerned Registration Officer for inclusion of his name at any time.
' In an unreported judgment of this Court titled "Khan Muhammad and 2263 others", it was held that under rule 20 of the Electoral Rolls Rules, 1970, the applications having been filed before Registration Officer, he was duty bound to proceed with the matter who rejected the same arbitrarily and highly prejudicial to the vital legal interests of petitioners.
6. Mr. Raza Ali Khan, Advocate General appearing on behalf of Government-respondent No,3, stated at Bar that as per instructions, he does not oppose the writ petition.
7. Mujahid Hussain Naqvi, Advocate, respondent No,4, argued his case himself and defended the impugned orders with full force. He submitted that keeping in view the provisions of Rules, 7, 8 and 9 of the Electoral Rolls Rules, 1970, an alternate remedy was available to petitioner against the impugned orders, hence, the instant writ petition is accordingly not maintainable. He further contended that neither Registration Officer was authorized to insert name of petitioner in the concerned electoral roll, under rule 20 of Electoral Rolls Rules, 1970, nor the Chief Election Commissioner, was empowered to include his name in the said roll, under section 15(a) of the Electoral Rolls Ordinance, 1970. He further argued that petitioner has not invoked jurisdiction of this Court with clean hands, hence, submitted for dismissal of writ petition. In support of his contentions the learned Advocate cited the following case law:-- Custodian of Evacuee Property v. Azad Govt. And 2 others (2001 SCR 432]; 41- AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others [ 2014 SCR 382]; ' In case of Custodian of Evacuee Property, supra, it was held by the Apex Court that party who seeks redressal of his grievance by invoking writ jurisdiction must come with clean hands.
' In case of AJ&K Govt. Ibid, it was held by the Apex Court that for invoking the jurisdiction of the High Court the prerequisite is that a right has been infringed and no other adequate remedy is available to the aggrieved person.
8. We have perused the contents of writ petition as well as written statements and examined the appended documents made available with utmost care.
9. A contemplate perusal of NIC, Passport, State Subject, Domicile Certificate, Educational Testimonials and revenue record, make it abundantly clear that petitioner is permanent resident of village Kharik, Tehsil Rawalakot. It also reflects from record that name of petitioner was inserted at serial No,608 in the concerned electoral roll of 2011. The aforesaid documents appended along with the writ petition have not been controverted by the other side. The claim of petitioner is that in the month of February, 2016, he visited his native village, however, could not contact the concerned Enumerators of electoral rolls, hence, he handed over his NIC along with other relevant documents to his close relative Muhammad Tahir Farooq, to provide the same to the concerned team for entry of his name in respective electoral roll, 2016. However, despite providing the relevant documents to the team, name of petitioner was not inserted in the electoral roll of the concerned area, which fact came into his knowledge when he was nominated to contest election for the position of President of Azad Jammu and Kashmir. It is worthwhile to observe here that as per subsection (4) of section 5 of Interim Constitution Act, 1974, no person shall be qualified for election t',f President unless:--
(a) he is Muslim;
(b) he has attained the age of thirty-five years;
(c) his name appears on the electoral roll prepared for election of the members of the Assembly; and
(d) he is qualified to be elected as member of the Assembly.
' The petitioner, therefore, submitted an application to Registration Officer Rawalakot, through his Attorney, for inclusion of his name in electoral roll, 2016, of the concerned territory on 05th August, 2016, which was declined on the ground that after completion of primary electoral rolls the manuscripts were displayed at public places, the claims and objections were called and thereafter final electoral rolls were already published, hence, the application was not tenable which was turned down vide order dated 6th August, 2016. A reading of the aforesaid order of Registration Officer/Assistant Commissioner Rawalakot, reveals that basic provisions of Rule 20(1) read with sub-rule (4) of the Azad Jammu and Kashmir Electoral Rolls Rules, 1970, could not be taken into consideration. The aforesaid Rule speaks as follows:- "20. Amendment of the Roll.
(1) Any person, whose name is not included in an electoral roll prepared under the Ordinance, and who claims that he was or is entitled to be enrolled on that roll, may apply to the appropriate'
Registration Officer along with the photostat copy of the identity card issued to him under the National registration Act, 1973 (LVI of 1973), for the inclusion of his name therein, and if the Registration Officer is satisfied after giving such notice and making such enquiry as he may consider necessary that the applicant was or is entitled to have his name so enrolled, he shall amend the roll by making necessary entries therein relating to the applicant.
(4) No application under sub-rule (1) or sub-rule (2) shall be entertained nor shall any amendment of any electoral roll be made under this rule at any time after the notice of election of the representatives of the people on the basis of adult franchise has been issued and before such representatives has been elected.
(5) ...............................
(6) ...............................
10. As per sub-rule (1) of Rule 20 supra, any person, whose name is not included in the concerned electoral roll who claims that he was or is entitled to be enrolled on that roll, may apply to the concerned Registration Officer for inclusion of his name. At the time of moving application by petitioner, as final electoral rolls had already been published, hence, application for inclusion of name could only be filed under Rule 20(1) reproduced hereinabove. It is an admitted fact that process of election of members to the Legislative Assembly on the basis of adult franchise had already been completed, hence, embargo contained in sub-rule (4) ibid was also not attracted. It is crystal clear that no any limitation was provided for entertaining application under the aforesaid provisions. Our above view is fortified from an unreported judgment of the Apex Court titled "Registration Officer, Registration Division Muzaffarabad/ Assistant Commissioner, Muzaffarabad and 2 others v. Khan Muhammad and 2263 others" passed in Civil Appeal No,6 of 1991 decided on 11th May, 1993. And by an unreported judgment of this Court passed in Writ Petition No,20/1990- titled Khan Muhammad and 2263 others v. Registration Officer/Assistant Commissioner Muzaffarabad and 2 others decided on 13.05.1990. A similar proposition also came under consideration before the Apex Court of Pakistan in case titled Election Commission of Pakistan v.
Asif lqbal and others [PLD 1992 SC 352]. At pages 351 and 352 of the report, it was opined as under:- - "Thus, the process under section 17 stands on an entirely different footing to the process of enrolment of names visualized under section 18 of the Act. A close scrutiny of all the provisions shows that concurrent operation of the two processes to be carried out by two different authorities is not the intent of law and to permit both the authorities to act concurrently would result in confusit n and distortion of the electoral rolls and impair the fairness of the elections. It has already been pointed out that while annual revision under section 17 of the Electoral Rolls Act, 1974, is in progress of any objections/claims in respect of transfer of name from one electoral roll to another are required under section 1 of the Act to be filed before the Revising Authorities, if preferred before the final publication of the electoral rolls. On the other hand, if such objections/ claims are filed after the final publication of the electoral rolls, the Registration Officer concerned will pass necessary orders under section 18 ibid. The powers of the Registration Officers under sections 11 and 18 are resorted to only after final publication of the electoral rolls. Any other interpretation will give rise to anomalous situations. Thus, while the Revising Authority is empowered under section 14 ibid to decide any claim/ objection to the electoral rolls, in proceedings under section 18 the Registration Officer is authorized to enroll/ correct the names therein. Now, if the Revising Authority orders deletion of the name of a person from the rolls, but section 18 is concurrently operative the Registration Officer will still be authorized to include the name of that person in the electoral roll. This clash of authority of the two officers is bound to produce deleterious results and vitiate the sanctity of the electoral rolls. Correctly updated and authentic electoral rolls being absolutely essential for holding free, fair and impartial general or local council elections, the operation of sections 17 and 18 concurrently is bound to affect the accuracy of the electoral roll and ultimately the fairness of the election. Similarly, the District Election Officers who are required to implement the orders of the Registration Officers and the Revising Authorities will be at a loss to properly discharge their duties, arising out of two divergent orders being issued in respect of the same entry. It was for this reason that operation of sections 17 and 18 are meant to be operative at different times and it is for this reason that the heading of section 18 reads as "Enrolment and correction at a time other than the annual revision" and the said heading cannot be regarded as entirely without significance."
11. A reading of rule 6, of Electoral Rolls Rules, 1970, reveals that 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. According to rule 7, every claim for inclusion of a name in the electoral roll, and every objection or application for correction of any entry therein shall be lodged within a period of thirty days next following the date of publication of the draft roll. As per rule 8, every claim for inclusion of a name in the electoral roll shall be in Form IV and every objection to any entry therein shall be in Form V. Under rule 9, the Commissioner shall, for a group of electoral areas appoint a Revising Authority for the purpose of deciding claims and objections with respect to electoral rolls for such electoral areas. According to rule 10, a claim or objection shall be addressed to the appropriate Revising Authority and shall either be presented to that Authority or to the Registration Officer or to such other officer as may be designated in that behalf by the Commissioner or be sent by post to the Revising Authority. Under rule 11, any claim or objection not made within the period or in the manner specified in these rules or made or presented by a person not entitled to make or present shall be rejected. As per rule 12, Registration Officer may within the period specified in rule 7, apply to the Revising Authority for inclusion in the electoral roll the name of any person left out due to inadvertence or absence of timely information while preparing the draft electoral roll; or for the exclusion of any name from the electoral roll or any correction of electoral rolls or other error. However, revising Authority under rule 16, shall hold a summary enquiry into each claim or objection in respect of which it has issued notice under rule 14 and shall record its decision thereon. The Registration Officer as per rule 17, shall correct the roll in accordance with the decisions of the Revising Authority under rule 16. The Registration Officer After making additions, deletions modifications or corrections shall publish final electoral rolls at his office and at such other place or places as the Commissioner may direct. However, any person, whose name could not be included in an electoral roll may apply to Registration Officer concerned for inclusion of his name under rule 20. At the cost of repetition, it is reiterated that as electoral rolls were finally published by Registration Officer, hence, only remedy available to petitioner was to move an application under the aforesaid provisions. We are, therefore, of the considered view that while dismissing application of petitioner the basic provisions of the aforesaid Rule were violated by the Registration Officer Rawalakot, while recording order dated 6th August 2016.
12. The petitioner after rejection of his application by the concerned Registration Officer-respondent No,2, through order dated 6th August, 2016, was constrained to move another application before the Chief Election Commissioner, for inclusion.Of his name in the concerned electoral roll on 6th August, 2016. The proposition that whether after final publication of electoral rolls the Chief Election Commissioner, could entertain application moved by petitioner? Before embarking upon the aforesaid proposition, it seems appropriate to reproduce Sections 10-A, 13-A and 15 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, which reads as follows:-- "10-A. Departure from normal procedure in exceptional circumstances. ---Where the Commissioner is satisfied that it is not possible to follow the procedure laid down for the preparation, amendment, revision and correction of an electoral roll in respect of any electoral area, he may direct that an electoral roll for such electoral area shall be prepared in such a manner as he deems fit." "13-A. Preparation and revision of electoral rolls.---(1) The Commissioner may, at any time, by order direct that an electoral roll of any electoral area, be prepared afresh or revised, if he, for any reason, considers such preparation or revision to be necessary. "
"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 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."
' A bare reading of section 10-A reveals that where the Commissioner is satisfied that it is not possible to follow the procedure laid down for the preparation, amendment, revision and correction of an electoral roll in respect of any electoral area, he may direct that an electoral roll for such electoral area be prepared in such a manner as he deems fit. However, section 13-A empowers the Commissioner that an electoral roll of any electoral area, be prepared afresh or revised, if he considers such preparation or revision to be necessary. As per section 15(a) the Chief Election Commissioner, enjoys vast powers to include name of any person, at any time to enroll in electoral rolls. The application, therefore, moved by petitioner before the Chief Election Commissioner, as per or humble view, was maintainable which was returned in original for want of jurisdiction through the impugned order dated 08th August 2016. Our reading and analysis of these provisions have led us to the irresistible conclusion that the Chief Election Commissioner; has the powers to correct electoral rolls both before and after their final publication. The same view was expressed by the Lahore High Court in case titled. Mian Karam Illahi v. The Revising Authority of the Electoral Rolls, District Jhelum [PLD 1975 Journal 54]. At pages 56 and 57 of the report it was held as under:-- "....After giving a careful thought to the whole matter, I have come to the conclusion that it would be wrong to place limitations of time on the Chief Election Commissioner's powers under section 27 of the Act and to confine their exercise only to a point of time after the publication of the rolls and not before that. In the first place, the opening words of section 27 make it clear that the Commissioner can make an order under that section "at any time". This is consistent with the constitutional obligation of the Chief Election Commissioner under Article 219 of the Constitution, as he is charged under that Article with the duty of preparing the electoral rolls and this preparation, with all conscientious care and precision cannot be possible if the Chief Election Commissioner does not have the powers to remove defects and mistakes while the rolls are under preparation. It seems to. Me to be absolutely anomalous to hold that while the Chief Election Commissioner has the powers to rectify mistakes after they have crept into the rolls, when finally published, but he does not have the power to prevent the occurrence of those mistakes in the electoral rolls while they are under preparation."
13. The observations of the learned Chief Election Commissioner, that order recorded by Registration Officer dated 6th August, 2016, was neither appealable nor revisable are against the contents of application moved under sections 10-A, 13-A and 15 of the Ordinance, which was neither appeal nor revision, hence, we have reached to the conclusion after deep deliberation that the impugned order dated 08th August, 2016, passed by the Chief Election Commissioner, is bad in law, hence, the same is also not sustainable.
14. The contention of Mujahid Hussain Naqvi, Advocate, respondent No,4, that against the impugned order dated 6th August, 2016, issued by Registration Officer Rawalakot and order dated 8th August, passer by the Chief Election Commissioner, petitioner has got an alternate and adequate remedy of revision before Revising Authority, hence, writ petition is not maintainable, is fallacious, which is hereby turned down.
15. The contention of Mujahid Hussain Naqvi, Advocate, that petitioner has not invoked jurisdiction of this Court with clean hands is also frivolous. Nothing has been cited at Bar from record that how petitioner has not invoked writ jurisdiction with clean hands, therefore, the contention, is without any substance which is overruled.
16. The crux of above discussion is that by accepting the instant writ petition the impugned order dated 6th August, 2016, recorded by Registration Officer Rawalakot and order dated 8th August, 2016, passed by the Chief Election Commissioner, are hereby set at naught, as without lawful authority, hence, having no legal effect. The name of petitioner on the basis of ad-interim order dated 09th August, 2016, of this Court had already been included by Registration Officer Rawalakot, in the concerned electoral roll and on the basis of the same, he also participated in the election as per schedule held on 16th August, 2016, who is now elected for the slot of President of Azad Jammu and Kashmir, without any embargo as postulated under section 5(4) of the Interim Constitution Act, 1974. The writ petition is accepted in the manners as indicated herein above, however, with no order as to the costs.