' RAJA MUHAMMAD KHURSHlD KHAN, ACTG. C. J.-This appeal by leave calls in question the judgment passed by a Division Bench of the High Court on 26-11-1981. By this judgment the High Court accepting the writ petition, moved by the respondent Aziz-ur-Rehman, declared the election of the appellant as Chairman of Union Council Leepa (District M'abad) as illegal. The main ground in support of its finding advanced by the High Court is that the election was conducted on the 30th of September, 1979 prior to the publication of the Rules framed for the purpose, under section 79 of the Azad. Jammu & Kashmir Local Government Ordinance, 1979 (hereinafter to be called as the Ordinance of 1979), which should have been conducted after the publication of the rules in Government Gazette, which were published a day after the election on 1-10-1979.
2. Syed Manzoor-ul-Hassan Gillani, the learned counsel for the appellant, to assail the judgment of the High Court maintained :-
(i) that the finding of the High Court to the effect that the election of the Chairman conducted on 3C-9-1979, prior to the publication of the Rules is faulty. In his view, such a finding was only permissible if the Ordinance or the Rules framed thereunder would have expressly stated so. As the Ordinance or the Rules do not stipulate such a condition, the rules, he submitted, would be operative from the 26th of September, 1979 when they were promulgated and not from 1-10-1979 when they were published in the Government Gazette ;
(ii) that Aziz-ur-Rehman, respondent, has no locus standi to move the writ petition as he cannot be deemed to be an aggrieved party within the meaning of section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 (hereinafter to be called as the Constitution Act). The respondent, Aziz-ur-Rehman, was not a candidate for the election ; he is therefore only a pro bono publico having no locus standi to move the writ petition. None of his legal rights, he submitted, have been infringed ; and
(iii) that even assuming that the rules would come into force on 1-10-1979 when they were published in the official Gazette the position would not change. In his view the election in that case too could not have been declared as void and at the most it would be said that election of the Chairman shall have effect from 1-10-1979 the date the rules were published in the official Gazette.
3. As against this Mr. B. A. Farooqi, the learned counsel for the respondent, contended that under section 82(4) known as Azad Jammu & Kashmir Local Government Ordinance, 1979, the rules are to be notified in the official Gazette and prior to their publication they would not be operative and, therefore, the election held prior to it was rightly quashed by the High Court.
4. After giving or considered thought to the arguments advanced and looking into the relevant law and rules, we feel that the submissions made by ,A Mr. Manzoor-ul-Hassan Gillani carry substance and must prevail. Our reasons are :-
(a) Section 79(1) of the Ordinance of 1979, which reads :- "(1) The Government may make rules to carry out the purposes of this Ordinance.
(2) . . ' empowers the Government to make rules to carry out the purposes of the Ordinance. In exercise of these powers the Government was pleased to make the Rules called the Azad Jammu & Kashmir Local Government (Election of Chairmen and Vice-Chairmen) Rules, 1979 on 26th of October, 1979. Under sub-rule (2) of rule 1 it is provided that these Rules shall come into force at once. The rules nowhere state that they will come into force when they are published in the official Gazette. It may be observed that no provision even exists in the Ordinance indicating that the Rules would be operative from the date of their publication in the official Gazette. Publication of the Rules in the official Gazette, therefore, does not seem to be a condition precedent for their validity.
Statutory Rules, made by the competent Authority (as the case is before us), ordinarily come into force as soon as they are framed unless of course it is otherwise provided in the relevant law or the rules ; because whenever law requires publication in the Official Gazette as a necessary condition for coming into operation of the statutory rules it expressly says so ;
(b) in the instant case sub-rule (2) of rule 1 of the Rules manifests the intention of the Rule Making Body ; that the rules will come into operation on the same day and naturally, in the absence of any condition in the Ordinance or the rules to the opposite, the rules would come into force on the day they are made ;
(c) subsection (4) of section 81 of the Ordinance of 1979 lays down the purpose of the notification of Rules provided in the official Gazette. Under this provision the publication of the Rules in the official Gazette is only deemed proper for the information of the residents of local area. It does not deal with their propriety or validity. Omission to publish the rules, therefore, would not render the rules in any way illegal or inoperative. If publication of rules in the instant case was a condition precedent to clothe them with sanctity, such a provision must have existed in the Ordinance or Rules."
5. The facts of the case reported as Ghulam Nabi Mir v. Sarkar (1) and relied upon by the learned Judges of the High Court, with all respects to them, are distinguishable and have least similarity with the facts of the present case. At page 125 relevant provision from the Rules of Business, 1951 is reproduced. It reads :- "Legislation or rules having the force of law after receiving the concurrence of the Ministry of Kashmir Affairs shall be published in the Government Gazette and shall then be deemed to have come into force on such date as is specified therein."
6. It would appear that the provision of Rules of Business (relied upon in that case) candidly says that the Rules would have the force of law after receiving the concurrence of the Ministry of Kashmir Affairs and after they are published in the Government Gazette. Obviously this case has nothing common with the facts of the case before us. The Ordinance or the Rules, in the instant case, nowhere state that the Rules would be operative only when they are published in the official Gazette.
7. Amarendra Nath Roy Chowdhury v. Bikash Chandra Ghose and another(2) supports or view. In this case vide Notification No, 1057, the Governor appointed the 23rd of February, 1957, as the date when the Act shall come into fore. By Notification No, 1058 the Governor was pleased to establish on the same day a Civil Court to be called the City Civil Court. The action was valid because it was nowhere in the notification stated that the notification will come into play when it is published in the official Gazette.
8. In view of the above, we hold that publication of the Rules in the official Gazette was not a condition precedent for the validity of the Rules ; the election was validly held on 30th September, 1979, and the finding of the High Court that before publication of the Rules election was void, is.
Incorrect.
9. This brings us to dispose of the next contention of the learned counsel that respondent was not an aggrieved party, competent to file the writ petition. In a. Writ petition the Courts have to consider as to whether the petitioner has the locus standi to invoke the extraordinary writ jurisdiction of the Court. It is the basic principle that a person seeking judicial review of an order must show that he has personal interest in the Act which he challenges before his prayer for review is entertained. It is however, correct that to invoke the writ jurisdiction of the High Court it is not necessary that the vested interest of a person should have been invaded but at the same time to make him an aggrieved party such a person must show that he has an existing right to assail an order which is illegal and also adversely affects his rights whatever they may be. The respondent in this case lacks all these qualifica tions and obviously has no locus standi to sue, he is least interested in the {FOONOTE}}
(1) PLD 1971 Azad J& K 118 (2) AIR 1957 Cal. 534 ' result and is not adversely affected by the election of which he seeks review. He has no personal interest. He is neither a candidate nor interested in any person to hold the office of the Chairman.
He, therefore, is not an aggrieved party as there resides no legal right in him for the performance of a legal duty by the party against whom the mandamus is sought. We are fortified in or view in Ajaib Hussain and another v. Mohammad Fazil and 5 others (1) in which it has been observed :- "We may now advert to examine the validity of the argument that the respondents were not aggrieved party competent to file the writ petition. The argument to us is without foundation. The learned counsel seems to be labouring under a misconception that only a person whose vested rights have been directly invaded by an action can be termed as an aggrieved person. But in or view it is not necessary that a person invoking writ jurisdiction should have a juristic right. It is sufficient if he successfully establishes that he has an existing right to assail an order which is illegal and adversely affects his rights whatever they may be. In this view of the matter if an act is without lawful authority, and a person is adversely affected by such an act, he can seek declaration that such act is without lawful authority adversely affecting his interest."
' Same view prevailed in a case entitled Messrs S. M. Ilyas & Sons Ltd. v. Monopoly Control Authority
(2) it was observed :- "So they have a substantial interest in the matter. And it is by now a fairly settled law that such a person is an aggrieved party within the meaning of Article 199 of the Constitution and as such has locus standi to file and persue a petition under the said article."
' This view is based on a decision given in an earlier case reported as PLD 1969 SC 223. It was observed in this case : "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
10. It is also submitted by the learned counsel that assuming that the rules would be operative when they are published in the official Gazette, it would make no difference because it would be at the most said that the election held prior to the publication of the rules would be valid from 1-11- 1979, when they were published in the official Gazette. He has referred us to Amarendra Nath Roy Chowdhury v. Bikash Chandra Ghose and another (3) in which dealing with section 44 has been held :- "The last point taken relates to appointment of respondent No. 1 as the Chief Judge of the City Civil Court. Mr. Kar argues as follows : he points out that the City Civil Court Act was to come into force on such date as the State Government may by notification in the official Gazette appoint. By section 3 of the Act the State Government may {FOONOTE}}
(1) 1980 CLC 198 (2) PLD 1976 Lab. 834
(3) AIR 1957 Cal. 534 ' by notification in the official Gazette establish a Civil Court to be called a City Civil Court. Section 4 states : "There shall be appointed a Chief Judge of the City Civil Court and as many other Judges of that Court as the State Government thinks fit."
' As I have pointed out above, 3 notifications were published on February 14, 1957. B.y Notification No, 1057-J, the Act came into force on the 23rd day of February, 1957. By Notification No, 1058-J, the City Civil Court was established as a Civil Court and also as a Court of Session called the City Sessions Court. On February 20, 1957, the Governor of West Bengal was pleased to appoint respondent No. 1, then employed as the Additional Chief Presidency Magistrate, Calcutta, to be the Chief Judge of the City Civil Court. The said respondent was asked to join his new office from February 23, 1957, forenoon, which he appears to have done. The three notifications dated February 14, 1957, were all published in an extraordinary issue of the Calcutta Gazette, dated February 20, 1957. Mr. Kar argues that the Act came into force on the 23rd day of February, 1957, and the Court came to be established from 23rd day of February, 1957. He argues that the appointment of the Chief Judge could only be under section 4 of the Act which Act itself did not come into operation on February 20, being the date of appointment, nor had the Court come into existence upon that date. He says that the power of appointment could not be exercised under section 4(1) of the Act on February 20, 1957, since the Act itself did not come into force on that day, and an appointment could not be made of a Judge of a Court which did not exist."
' Same view prevailed in AIR 1962 Madh. Pra.
340.
11. As the appeal succeeds on some other grounds listed above w decline to decide this point and leave it open to be decided in a case where it decision appears to be necessary.
' In view of the above-stated circumstances, we accept this appeal with costs, set aside the judgment of the High Court and hold that the appellant was validly elected as Chairman of Union Council, Leepa.