The above titled writ petition has been filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby following relief is solicited by the petitioner.
"Therefore, it is most respectfully prayed that this writ petition may graciously be accepted and the impugned order dated 16.11.2022 passed by the learned Election Tribunal in Election Petition No. 05/2022 may kindly be set aside and consequently, the Election Petition No. 05/2022 may kindly be dismissed, in the best interest of justice. Any other relief to which the petitioner is entitled under law, justice and equity may also be awarded with costs."
The facts forming the background of the instant writ petition are that the petitioner contested the election for membership of AJ&K Legislative Assembly from Constituency No. LA-XXXV-JAMMU-II held on 25.07.2021, wherein, he has been declared as returned candidate vide Notification dated 27.07.2021. It is stated that Respondent No. 1 challenged the notification dated 27.07.2021 through election petition before the Election Tribunal. The petitioner, herein, filed objections on 8.06.2022 and also filed application for dismissal of election petition. The learned Election Tribunal framed issues on 14.06.2022 and after hearing the parties, on legal Issue decided that the election petition is maintainable. It is alleged that the order passed by the Election Tribunal is illegal against the facts and law and has no legal effect. It is further contended that no other adequate remedy provided by law except to invoke constitutional jurisdiction of this Court for setting aside the impugned order.
Para-wise comments have been filed on behalf of Respondent No. 1, wherein, it is stated that the writ petition is not maintainable as legislative has not been provided any remedy against the order and only an appeal provided against the decision of Election Tribunal, hence, the writ petition is not maintainable. It is further stated that the impugned order passed by the Election Tribunal is in accordance with law and for invoking extraordinary constitutional jurisdiction petitioner was bound to show some jurisdictional defect but he failed to point out any jurisdictional defect in the impugned order. It is submitted that under Section 90 of the AJ&K Elections Act, 2020, Election Tribunal is vested with the powers to dismiss an election petition during trial. It is further submitted that the writ petition has been filed just to prolong the process of litigation and to stop the trial.
I have heard the learned counsel for the parties and gone through the record of the case.
A perusal of record shows that Ch. Maqbool Ahmed, the petitioner, contested the Election for Membership of AJ&K Legislative Assembly from Constituency No. LA-XXXV-JAMMU-II held on 25.07.2021 and was declared as returned candidate vide notification dated 27.07.2021. Ch. Mohammad Ismail, Respondent No. 1, has challenged the notification before the Election Tribunal.
The petitioner, herein, filed an application for dismissal of election petition. The learned Election Tribunal framed issues and decided the legal issues against the petitioner and declared that the election petition as maintainable vide order dated 16.11.2022. The petitioner challenged the impugned order dated 16.11.2022 through this constitutional writ petition.
The learned counsel for the respondents has raised preliminary objection that the writ petition is not maintainable because petitioner has an alternate remedy and in presence of alternate remedy, writ petition is not competent. The Azad Jammu and Kashmir Elections Act, 2020, has been promulgated on 24.06.2020 under Act No. XVIII of 2020, wherein, Section 94(3) of the said Act envisages that any person aggrieved by a decision of the Tribunal may within thirty days of the announcement of the decision appeal to the Supreme Court. The relevant Section 94 is as under:
94. Conclusion of trial: (1)........
(2) .................
(3) Any person aggrieved by a decision of the tribunal may, within thirty days of the announcement of the decision, appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final.
A bare reading of above-reproduced Section reveals that any person aggrieved by a decision of the Tribunal may file an appeal to the Supreme Court within 30 days. In the instant case, the writ petition has been filed against the interim order of Election Tribunal. In case reported as 2015 SCR 159, wherein the Hon'ble Supreme Court of Azad Jammu and Kashmir held that there is no bar in maintaining a writ petition against the interim order passed by the Election Tribunal. The writ petition against interim order is competent. The portion is reproduced as under:
43. We have drawn the conclusion that provision of Section 51(3) are mandatory in nature and verification of election petition is to be attested by the authority referred to in Section 139, CPC, read with Order VI, Rule 15, CPC for verification of pleadings and Section 7 of the Oaths Act, read with Rules 88, 89 and 90 of the High Court Procedure Rules, 1984, in mandatory and Tribunal has no jurisdiction to continue the proceedings in the election petition against the express provision of the Election Ordinance. The dismissal of application for dismissal of election petition under Section 59, leaves the aggrieved person without any remedy and filing of appeal after the decision of election petition is not an efficacious remedy, therefore, the writ petition is competent. Our this view fund Support from the recent judgment of the Supreme Court of Pakistan delivered in the case reported as Zia-ur-Rehman vs. Syed Ahmed Hussain and others [2014 SCMR 1015] whereby the Supreme Court Pakistan declared that question of maintainability of election petition has to be decided as a preliminary question. It was observed as under: ".... If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/Tribunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition.
44. Thus we conclude that there is no bar in maintaining a writ petition against the interim order passed by the Election Tribunal. The writ petition against interim order is competent.
So, the writ petition against interim order of Election Tribunal is competent, hence, preliminary objection raised by the learned counsel for the Respondent No. 1, is overruled.
The contention of the learned counsel for the petitioner that The Respondent No. 1, has violated the legal requirements of Section 81(2) of the Elections Act, 2020, because the Election petition should be presented before the Election Commission, whereas, the respondent has directly approached the Election Tribunal. Section 81(2) of the AJ&K Elections Act, 2020, is reproduced as under:
81. Election Petition
(1) ....
(2) An election petition shall be presented to the Commissioner within such time as may be prescribed and shall be accompanied.
A perusal of record shows that the election petition was filed before the Commissioner. The Election Tribunal has rightly held in its judgment that the Election petition presented before the Election Commissioner and this fact is evident from the notification No. EC/S/ 35577-78/2021 dated 08.09.2021. The said notification speaks that election petition in hand was made over to Election Tribunal for trial. It is true that in certain circumstances, Tribunal can dismiss an election petition while invoking its powers under Section 90 of AJ&K Elections Act, 2020, whereas Section 82 or Section 83 have not been complied with. For proper appreciation Section 90 of AJ&K Elections Act, 2020 is reproduced as under:
90. Dismissal of petition during trial.--The Tribunal shall dismiss an election petition, if:-
(a) the provisions of Section 82 or Section 83 have not been complied; or
(b) the petitioner fails to make the further deposit required under sub-section (4) of Section 89. go, there is no justification to invoke powers under Section 90 of AJ&K Elections, Act, 2020. The Election petition has been filed before the Election Commissioner which was duly made over to the Election Tribunal. So, the objection raised by the learned counsel for the petitioner is repelled.
The next contention of the learned counsel for the petitioner that necessary parties have not been arrayed party in the line of respondents by the respondent, herein, before Election Tribunal and has arrayed contesting candidates in the line of proforma respondents and against them relief cannot be claimed and they were not served properly, so, the election petition is liable to be dismissed. The learned counsel objected that in absence of necessary parties before the Election Tribunal, the respondent has violated the provision of Section 82 of AJ&K Elections, Act, 2020. The Section 82 of Elections Act, 2020 is reproduced as under:
82. Parties to the petition:-The petitioner shall join as Respondents to his election petition.
(a) all contesting candidates; and
(b) any other candidate against whom any allegation, if any, of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondents a copy of his petition.
A bare reading of Section 82 and Section 90 of AJ&K Elections Act, 2020, reveals that Election Petition can be dismissed where the provisions of Section 82 or 90 have not been complied with.
The moot point in the instant case which needs resolution is as to whether failure to serve the proforma respondents in instant case would result to dismiss the election petition filed before the Election Tribunal? It may stated here that it depends upon the circumstances for which the concerned party was impleaded as proforma respondents. In the instant case the respondent, herein, claim relief against petitioner, herein, and the proforma respondents were impleaded just as formality to comply with Section 82. The record shows that the contesting candidates were impleaded as necessary party by the respondent herein before Election Tribunal and the Election Tribunal has rightly held that there is no violation of Section 82 of Elections Act, 2020.
The further contention of the learned counsel for the petitioner that the respondent, herein, has failed to verify and sign documents which were part of record of the Election Tribunal and the petitioner, herein, has violated the Section 83(3) of Elections Acts, 2020. Section 83 (3) of said Act, is reproduced as under:
83. Contents of petition.
(1) .................................
(2) ...............................................................................
(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908, for the verification of pleadings.
The record reveals that all the documents attached with the Petition filed before Election Tribunal are public documents and it is well settled law that the documents which are part of public record need not to be verified. My this view finds support from 2015 SCR 159 and the relevant portion of the judgment is reproduced as under: "We agree with the learned counsel that law is to be applied as but distinction has been drawn between the documents which are part of the public record and such annexures or schedule, which are annexed with election petition in support of additional allegations of substantive character or at least furnish better particulars of allegations made in the petitioner. The law is settled from Pakistan jurisdiction since PLD 1967 Supreme Court 467 and it is consistently being followed that annexures which are part of public record or original or certified copies of record, need not to be verified by the petitioner and need no attestation by the authorities referred to in Section 139. CPC.
It may be stated here that the judgment of Supreme Court is binding on each and every organ of the State. In this regard Reliance may be placed as PLD 2010 Karachi 170.
The Election Tribunal has rightly framed issues and discussed each and every issue in accordance with law. Hence, no illegality or irregularity has been committed by the Election Tribunal. The writ petition being meritless is hereby dismissed with no order as to the costs.