1. Syed Shahid Bahar, J. The titled writ petition has been filed by the petitioners under Article 44 of Azad Jammu and Kashmir Interim Constitution, 1974, through which they have challenged the impugned order dated 25.01.2022 passed by Respondent No. 1 (District & Sessions Judge/Delimitation Authority Hattian Jehlum Valley). It is prayed that respondents may be directed to divide the population of ward No. 1, 2 & 3 rationally as per the judgment of the Apex Court of Azad Jammu & Kashmir and guidelines issued by Election Commission Local Bodies.
2. Brief facts of the case as per petitioners are that Tehsil Leepa Valley previously consisting upon 2 union councils and the official respondents while delimiting as per the direction of the Apex Court divided Tehsil Leepa, into 3 union councils known as Banamoula, Nokot and Leepa. It is averred that official respondents constituted 06 wards for each union council of Tehsil Leepa Valley. It is further averred that private respondents filed objections before Respondent No. 1, Delimitation Authority Hattian (Jehlum Valley). Respondent No. 1 also sought comments from Respondent No. 2, who filed the same wherein it has been submitted that the population' of village Mandakulli and Kullimanda is less than the required population for constituting an independent ward whereas the adjacent village Channiyan Chamoula's population is 1577 which is almost within the limit of an independent ward and the population of village Nokot sharki is also less than the required population, therefore, by adding both the villages the ward Nokot Sharki has been constituted which is in accordance with law and required and required no interference. It is contended that Respondents No. 1 after hearing the appeal/objections of private respondents vide order dated 25.01.2022 directed the Respondent No. 2 to shift the population of village Kullimandal and Mandakulli with the adjacent village Channiyaan Chamoula and 368 persons from the village Channiyaan Chamoula be added in Nokot Sharki. It is contended that the order of Respondent No. 1 (Delimitation Authority Jhelum Valley) is against the law, against the geographical location, hence, not maintainable and liable to be set aside.
3. The learned counsel for the petitioner reiterated the facts and grounds narrated in the petition and prayed for acceptance of the writ petition by setting aside the impugned order passed by Delimitation Authority Jehlum Valley.
4. Mr. Tahir Aziz, the learned Legal Advisor for Election Commission of AJ&K appeared before the Court and raised preliminary objection that the Notification issued by the concerned authority has not been challenged by the petitioners, hence, the writ petition on this score is liable to be dismissed.
5. He further argued that that order impugned herein has been passed in accordance with law and according to dicta of Hon'ble Apex Court, hence, needs no interference by this Court. He lastly prayed for dismissal of the writ petition.
6. The learned counsel for Respondent No. 5 supported the arguments of the learned Legal Advisor for Election Commission and argued that the impugned order passed by the Delimitation Authority Jehlum Valley is in accordance with law and facts which needs no indulgence by this Court. The learned counsel prayed for dismissal of the writ petition.
7. Pro and contra arguments heard. Record perused.
8. The claim of the petitioners is that by accepting the instant petition, the impugned order of District Delimitation Authority Jehlum Valley dated 25.01.2022, and prayed for setting aside, as the same has not been passed in line with the scheme of law.
9. First of all we would like to reproduce the notification dated 20:12.2021, the same is as infra:- "AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR SECRETARIAT LOCAL GOVERNMENT & RURAL DEVELOPMENT"
10. "Muzaffarabad" Dated 20-12-2021 Notification No. SLJ/Section-II/14118-30/2021. In exercise of the powers conferred by Section 89 of Azad Jammu & Kashmir Local Government Act, 1990, the Government is pleased to direct that the following further amendments shall be made in the Azad Jammu & Kashmir Local Government Rules, 1983:- In the aforesaid Rules:--
(a) In Rule 7, in clause (c) of sub-rule (1), for the figures "5,000" and "12,000", the figures "10,000" and "15,000" shall be substituted respectively.
(b) In rule 7, clause (c) of sub-rule (6) shall be substituted as follows:-
(c) that where a ward is single-member ward of Union Council its population shall not be less than 1,500 and more than 2,000;
(ii) that where a ward is single member ward of Municipal Corporation its population shall not be less than 35,00 and more than "5,000";
(iii) that where a ward is a single member ward of Municipal Committee its population shall not be less than 3,000 and more than 4,000",
(iv) that where a ward is a single member ward of Town Corporation its population shall not be less than 2,000 and more than 3,000;
2. Notification issued vide No. SLG/Section-11/6543-55/2017 dated 21.04.2017 shall stand repealed.
11. Section Officer Local Govt. & Rural Development It is worthwhile to mention here that the notification dated 20.12.2021 was issued under the guidelines of the Hon'ble Supreme Court of Azad Jammu & Kashmir whereby a criteria/formula has been fixed for the purpose of delimitation.
12. The Hon'ble Apex Court of Azad Jammu & Kashmir in case reported 2021 SCR 144 laid down as under: "The perusal of the case law cited hereinabove, it becomes crystal clear that the process of delimitation has to ensure that the voting equality is not disturbed and vote of one citizen must in no manner be less than the vote of another citizen. Other than population parity, geographical compactness, the homogeneity of interest of the community needs to be factored in setting the parameters of delimitation. Delimitation is a judicious exercise of delineating electoral area, vigilantly guarding against any possible fear of vote dilution, disenfranchisement or corrupt practices. Unfair or partisan delineation can lead to skewed results, tarnishing electoral integrity, making a mockery of the election and turning the constitutional principle of 'political justice' on its head. It is commonsensical that 'Delimitation must be a neutral exercise, conducted by a neutral body. Any partisan political intervention and drawing up of political constituencies under the dictates of the political party in power is bound to lead to gerrymandering and unjust political windfall, tarnishing the sanctity of elections and crippling the faith of an ordinary man in the system of democracy. In the light of the main argument, advanced commonly by the counsel for the appellants, in all the appeals, the important question which requires consideration is; whether delimitation process was just and transparent and in accordance with the provisions of Section 7 of the Azad Jammu and Kashmir Delimitation of Constituencies Ordinance, 1970, as well as the guidelines given by the superior Courts in this regard or not."
13. In the above cited case law, the Hon'ble Apex Court has enunciated clear cut guidelines in setting the parameters of delimitation i.e. population parity, geographical compactness, the homogeneity of interest of the community etc. The Hon'ble Apex Court also protected, the notification dated 20.12.2021 regarding the formula laid down in the notification and no barrier has been placed on the remedy against the illegalities if committed during the process of delimitation.
14. While perusing the impugned delimitation and final proposal of Delimitation Committee with regard to the concerned areas shows that the same has been passed keeping in view the laid down law on the subject. It may be mentioned here that according to clause 18 of the Azad Jammu & Kashmir Election Act 2020 any proceedings taken by the authority cannot be challenged in any Court until the same is against the scheme of law, the relevant clause is as under: "The validity of the delimitation or formation of any constituency, or of any proceedings taken or anything done by or under the authority of the commission, under this Act shall not be called in question in any Court."
15. The Hon'ble Supreme Court in case titled "Inhabitants of constituency No. LAXXVII vs. Waheed Mughal & others, reported as 2021 SCR 144, ordained as infra: "mere on the wish of the someone, a well-reasoned/speaking order passed by the competent forum cannot be annulled."
16. It may be mentioned here that remedy of writ is an extraordinary remedy which can only be exercised as per dictate of Article 44 of Azad Jammu & Kashmir Interim Constitution, 1974: It is pertinent to mention here that the factual controversy cannot be resolved through the instant constitutional petition.
17. In order to appreciate the controversy involved in the instant petition, it would be advantageous to first have a recourse to the guiding principles enunciated by the Hon'ble Supreme Court in the judgment dated 21.12.2021 titled as 'Azad Govt. and others vs. Inhabitants of village Hajira and others". As per the judgment supra, if order of Delimitation Authority is within the four corners and according to above principles and fully decorated by the flash of law then indulgence by this Court in extra ordinary jurisdiction conferred by Article 44 of the Constitution is not justified.
18. It is pertinent to mention here that delimitation officer/ authority is under legal., obligation to entertain objections/evidence from all corners and mull over and adjudicate the same in judicious manner.
19. Be that as it ma geographical feasibility uo attaching or including i.e. union council/ward etc in connection with the specific stance, stated positions and over all narrative of the public at large from the relevant areas, is purely a question of fact, and basically it is bounded responsibility of the election authority to entertain such like objections in judicious manner and by affording a reasons opportunity to all the concerned people and thereafter decide the matter in light of the evidence/statements that too by following the scheme of law and dicta of the Apex Court.
20. Appellate Authority is much burdened to ass well reasoned orders while embarking upon the matter_impugned in its appellate capacity.
21. It is pertinent to mention here that no restraining order has been gassed by this Court pertaining to the matter of delimitation in the instant petition and in some other such like petitions. thus, mere pendency of writ petitions against the decision of Delimitation Appellate Authorities or for that matter any other ancillary and connected issue ipso facto cannot be considered as barrier for the relevant authority to take any step independently regarding to delimitation and election process in accordance with law and dicta of the Hon'ble Supreme Court of AJ&K.
22. In light of what has been discussed above, finding no substance in this writ petition, the same is hereby dismissed in limine. Copy of this order be immediately furnished to Chief Election Commissioner of AJ&K as well as other concerned Departments alongwith Chief Secretary, Azad Government of the State of Jammu & Kashmir, Muzaffarabad.