' SHAH JEHAN KHAN, J.--- Regular First Appeal No,71 of 1997 (Messrs Swabi Marbles Corporation (Pvt.) Ltd. And another v. Land Acquisition Collector and others) and R.F.A. No,89 of 1997 (Government of N.-W.F.P. And others v. Swabi Marbles Corporation (Pvt.) Ltd. And others) arising from the same judgment are disposed of by this common judgment.
2. For the extensian of Sheikh Maltoon Township, Mardan and construction of a 200 beds Hospital, the land fully described in the Award No,70/3, dated 28-10-1992 was acquired. Swabi Marble Factory and Brekhna Marble Factory constructed over a part of Khasra No,308 were also demolished and the proprietors of the two factories were awarded a total compensation for the superstructure as Rs,7,13,605.55 including 15 per cent. Compulsory acquisition charges and 8 per cent. Interest for 29 days permissible under the law. In addition to the land beneath the factories at the rate of Rs,1,10,000 per Kanal for the front portion of the acquired land and Rs,90,000 per Kanal for the rear portion of Khasra No,308 in the revenue estate Roria Tehsil and District Mardan.
3. The proprietors of the two factories feeling dissatisfied with the rate of compensation awarded by Land Acquisition Collector filed an objection petition under section 18 of the Land Acquisition Act on 30-11-1992 which was referred to Senior Civil Judge, Mardan as Reference Case No,20/4 of 1996 for " determination of rate of compensation. The Referee Court framed the following issues arising from the objection petition:--
(1) Whether the Objectors have got a cause of action?
(2) Whether the Objectors received compensation without protest, if so, its effect?
(3) Whether the objection petition is within time?
(4) Whether there was any Abadi, trees and machinery in The acquired land, if so, the compensation awarded by the Collector is wrong and inadequate?
(5) Whether Objectors are running the Marble factory in the land acquired, if so, whether they are entitled to the loss of earning and at what rate?
(6) Whether the Collector has wrongly classified and under assessed the suit land, if so, what is the correct classification and market value of land acquired?
(7) Whether the Objectors have sustained any damage at the instance of the respondents, if so, to what extent and effect?
(8) Whether the Objectors are entitled to the enhancement of compensation as prayed for?
(9) Relief.
4. Both the parties adduced their evidence as they wished to produce. In the conclusion the learned Senior Civil Judge, Mardan enhanced the rate of compensation of the superstructure of Swabi Marble Factory to Rs,1,06,50,041 and for the superstructure of Brekhna Marble Factory to Rs,5,79,040 and the compensation for land beneath the two factories was enhanced to Rs,1,60,000 per Kanal. Still feeling aggrieved the objectors have filed R.F.A. No,71 of 1997 and the acquiring department being aggrieved from the enhancement made through the impugned decree and judgment has filed R.F.A. No,89 of 1997.
5. At the very outset learned counsel for the objectors raised a preliminary objection regarding maintainability of appeal filed by acquiring department in view of the judgment reported in WAPDA v. Aurangzeb Khan PLD 1975 Pesh. 1, Province of Punjab v. Naseeruddin 1991. SCMR 2091; Pir Khan v.
Military Estate Officer PLD 1987 SC 485. The learned Advocate-General produced judgment reported in case Military Estate Officer v. Assistant Commissioner-cum-Collector, Quetta and 4 others 1997 CLC 556 wherein a Division Bench of the Quetta High Court has overruled such objection on the strength of judgment delivered by Federal Shariat Court in Shariat Petition No,6 of 1988 which was also upheld in Shariat Appeal No,7 of 1989 in the Shariat Appellate 'Bench of Supreme Court of Pakistan, decided on 18-2-1991. In the said judgment sections 18, 22-A, 50 and 54 of Land Acquisition Act, 1894 were declared against the Injunctions of Islam and recommended amendments to make the law on the subject more consistent and equitable till 30th September, 1991 as the existing law by then not providing a right of cross-objection, leading evidence for determination of rate of compensation and right of appeal, was found in negation of justice and repugnant to the Injunctions of Islam. It was observed that a party who has to pay money from its funds should have been provided a right to make reference, to adduce evidence for the purpose of determining the amount of compensation if dissatisfied from the rate of compensation fixed by Land Acquisition Collector and to prefer an appeal if aggrieved from the findings of Referee Court.
It was held that if the law should not be amended till 30th September, 1991 the existing law will have no effect after the aforesaid date. The judgment of Federal Shariat Court upheld by Shariat Appellate Bench in the Supreme Court of Pakistan was followed in Muhammad Pervez v. Azizullah Khan PLD 1999 Pesh.
53. In these circumstances we reject the preliminary objection regarding maintainability of the appeal filed by Acquiring Department.
6. We heard the learned counsel for the parties on merits and perused the record. The objectors have claimed Rs,5,00,000 per Kanal as rate of compensation for the land measuring 20 Kanals a part of Khasra No,308. Counsel for appellants/objectors stated at the Bar that rate of compensation for the acquired land has already been enhanced by this Court in R.F.A. No,70 of 1997, decided on 18-4-2000 regarding the adjacent lands reported in Abdul Samad Khan and others v. Project Director, Mardan Development Authority 2001 CLC 33 which has now been challenged in the august Supreme Court of Pakistan and the rate of compensation for land be fixed in terms of cited judgment noted above. It was observed in the aforesaid judgment regarding the land sub judice in the instant appeals as follows:-- "In the `Aks Sharja Kishtwar' ,Exh.P.W.3/4 it is evident that Khasra No,308 which includes Khasra No,309 in its centre is lying adjacent to the Dual Carriage, Mardan-Nowshera, G.T. Road. Likewise Khasras Nos.303 to 307 on the North and 3.11 to 315 on the South of Khasra No,308 are also of the same use and character. Khasras Nos.316, 318 to 324 owned by the objectors are adjacent to Dual Carriage Road of Sheikh Maltoon Housing Scheme as shown in Aks Exh.P.W.3/4 and not lesser in value than Khasra No,308 while rest of the acquired Khasras Nos. Are lying in the rear and lesser in value comparatively. The Khasra Nos. Mentioned above either adjacent to Dual Carriage, MardanNowshera Road or adjacent to Dual Carriage Road of Sheikh Maltoon Housing Scheme in the South are equal in potentiality and could be utilized equally as commercial market due to the adjacent Sheikh Maltoon Housing Scheme. In these undisputed facts we feel no hesitation in holding that the rate of compensation for the aforesaid Khasra Nos. Was wrongly fixed on the basis of rate fixed for Roria after relying on Exh.P.W.2/1 and the fair and justifiable rate for these Khasra Nos. Should be fixed at Rs,17,000 per Marla as determined for land lying on Mardan-Nowshera Road through Exh.P.W.2/1. The rate fixed for remaining Khasra Nos. In the impugned udgment Rs,8,000 per Marla merit no interference."
7. In view of the aforesaid finding we are inclined to enhance the rate of compensation for the land beneath the two factories measuring 20 Kanals to Rs,17,000 per Marla.
8. As regards the rate of compensation for the superstructure of the two factories a total compensation was claimed Rs,2,11,96,200 in the objection petition. To substantiate the aforesaid rate of compensation for superstruture Hamoyun Khan, Chief Executive of the National Consulting Engineers was produced as C.W.3. He deposed that on the request of Haji Wazir Muhammad objector Managing Director, Swabi Marble Corporation and Proprietors Brekhna Marble Factory he visited the site on 12-9-1992 and provided his valuation certificate (Exh.O.W.3/1) respecting Swabi Marble and (Exh.O.W.3/2) respecting Brekhna Marble. He also prepared a sketch of the two factories as Exh.O.W.3/3. He admitted that private persons are charged for valuation certificate on the basis of per square foot.
9. Abdullah was produced as 0.W.4 who exhibited his report as 0.W.4/1 showing the total damage caused to the spare parts of the two factories. He also produced an estimate of the damage caused to the gang saw machine as Exh.O.W,4/2, the cost of damage caused to the electric goods workshop, air compressor, marble tiles/slabs in Swabi Marble Factory as Exhs.O.W.4/3 to 0.W.4/6, and the cost of damage to the marble tiles/slabs in Brekhna Marble Factory as Exh.O.W.4/7 and estimated cost of damage caused to the electrical implements of Brekhna Marble Factory as Exh.O.W.4/8. He has admitted that the assessment/ estimate was drawn by an employee of the owner and he has just signed it. The aforesaid damage reports are not believable being prepared after the dismantling of two factories. The witness is not a technically qualified person but a matriculate. The aforesaid documents wete prepared by employees of the objector and the witness has just signed it along those employees and the same were handed over to the objector.
10. The acquiring department has produced Mian Khaliq Shah, S.D.O., C&W Secretariat, Peshawar as R.W.1 and Said Kamal Shah, Assistant Director, M.D.A., Mardan as R.W.2. On the request of M.D.A. Both the witnesses alongwith technical staff visited the site and prepared their estimate as Exh.R.W.1/1.
No site plan was prepared and even the measurement notices were not prepared by the two witnesses and allegedly made by M.D.A. Staff. No specification was obtained from the objectors.
Both the witnesses are employees of the Provincial Government and M.D.A., thus partisan and the estimate drawn by them Exh.P.W.1/1 was rightly turned down by the Referee Court vide his detailed discussion under Issue No,4.
11. Hamayun Khan (O.W.3) is qualified Civil Engineer who inspected the site of the two Marble Factories on 12-9-1992 and prepared a detailed report Exh.O.W.3/1. He has drawn the total estimated cost of the damage caused as Rs,1,06,50,041 for Swabi Marble Factory and Rs,5,79,040 for Brekhna Marble Factory. The said report was accepted by the Referee Court in his impugned decree and judgment and the objectors cannot be allowed to claim more than the evidence led by them. The acquiring department has miserably failed to shatter the deposition of Hamayun Khan (O.W.3) though subjected to lengthy cross-examination.
12. As a result of the above discussion we arrived at the conclusion that the impugned decree and judgment is not suffering from any illegality, misreading or non-reading of evidence and has rightly given effect to Exh.O.W.3/1 for fixation of the value of the superstructure of two factories Swabi Marble Corporation and Brekhna Marble Factory. Both these appeals are hereby dismissed except to modify the rate of -compensation for the acquired land to Rs,17,000 per Marla on the strength of judgment reported in 2001 CLC 33.
' No order as to costs.
Appeals dismissed.
2002 CLC 1947 [Azad MX] Before Syed Manzoor Hussain Gilani, CJ Sardar NASIM AHMED SARFRAZ--- Petitioner versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary at Muzaffarabad and 2 others---Respondents Writ Petition No,404 of 2001, decided on 29th September, 2001.
(a) Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970--- ----S. 5(2)---Azad Jammu and Kashmir Interim Constitution Act LVIII of 1974), Ss.21, 24(2)(d) & 44-- -Writ petition---Election for Azad Jammu and Kashmir Council---Disqualification of candidate- Election of returned candidate had been called in question on the ground that he holding office of Secretary, Kashmir Liberation Cell at the time when he filed nomination papers and was declared elected and that returned candidate could neither be a candidate nor could hold membership of Council in view of S.24(2)(d) of Azad Jammu and Kashmir Interim Constitution Act, 1974 as Office of Secretary, Kashmir Liberation Cell held by him was a wholetime public office, remunerated by salary and was office of profit in service of Azad Jammu and Kashmir---Validity--Office of Secretary, Kashmir Liberation Cell which the returned candidate was holding at the time of his election as member of Azad Jammu and Kashmir Council was excluded from purview of office of profit in service of Azad Jammu and Kashmir under Ordinance XXXVI of 2000 promulgated prior to holding'of election of returned candidate--- Disqualification of returned candidate, if any, from being a member of Council, in circumstances, had been removed by the promulgation of the Ordinance, 2000 though it stood repealed due to afflux of time four months after its promulgation as same was neither placed before Assembly nor was repromulgated---Disqualification of returned candidate, if any, from being member of Council; having arisen after his election on repeal of Ordinance, 2000 by efflux of time, question could be decided by Chief Election Commissioner under S.21(4-B) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Writ petition was dismissed, in circumstances.
[pp. 1949, 1950, 1951, 1952, 1953, 1955] A, B, C, D, E, F, G & I
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----S. 44---Writ jurisdiction---Inherent powers of Court, when to be reversed---Courts, no doubt, were jealous in assuming and extending their jurisdiction under principles of judicial activism but they should not subvert express provisions of Constitution---Only in an ambiguous or anomalous position of law Court should assume jurisdiction by having resort to inherent powers to fill void in law, but where provisions of law were clear and parties also admitted facts which left no ambiguity, it would be sheer adventurism and transgression to extend or assume jurisdiction. [p. 1955] H PLJ 1998 AJK 140; 1999 MLD 268; PLD 1990 Azad J&K 61; 1999 MLD 261; 1986 SCMR 1701; PLD 1988 SC 118; 1996 SCR 7; 1999 PLC (C.S.) 947; 2001 PLC (C.S.) 28; 1995 MLD 1350; PLD 1987 Lah. 251; 1992 SCR 214; PLD 1980 SC (AJ&K) 5; 1999 PLC (C.S.) 239; 1990 SCR 471; PLD 1995 SC (AJ&K) 1; PLD 1988 SC 1; 1995 MLD 1299 and 1997 MLD 2861 ref. Khawaja Shahad Ahmed for Petitioner.
M. Tabbassam Aftab Alvi and Muneer Ahmed Farooqi for Respondents.
' This petition under section 44 of the Interim Constitution Act, 1974, is filed to call in question the Notification, dated 30-9-2000, whereby respondent No,3, Sardar Muhammad Sawar Khan is declared elected as member of Azad Jammu and Kashmir Council, besides three others.
2. The case of the petitioner is that he was a candidate for one of the seats of Azad Jammu and Kashmir Council out of four, which fell vacant in September, 2000. In consequence of the elections, 8.3 votes were polled in favour of the petitioner but he could not succeed as others obtained more votes than the petitioner. The election of respondent No,3, as member of the Council, is called in question on the ground that he was holding office of Secretary, Kashmir Liberation Cell at the time when he filed nomination papers and was declared elected. It is stated that the office of Secretary, Kashmir Liberation Cell is a whole time public office and remunerated by salary and is an office of profit in the service of Azad Jammu and Kashmir, thus the respondent could neither be a candidate nor can hold the membership of the Council in view of clause (d) of subsection (2) of section 24 of the Interim Constitution Act, 1974. It is further stated that the respondents maneuvered to have an Ordinance numbered XXXVI (Ordinance) promulgated on 22-9-2000 through which the office of Secretary, Kashmir Liberation Cell was excluded from operation of section 5(2) of Azad Jammu and Kashmir Elections Ordinance, 1970 and disqualification created by the above provision was removed through the Ordinance. The Ordinance was neither placed before the Assembly nor was repromulgated on account of which it stands repealed by efflux of time on 22-1-1001. The petitioner contends that the respondent No,3 was not qualified to contest the election at the relevant time but promulgation of the Ordinance removed his disqualification and after the Ordinance having expired, respondent No,3 is holding the office without lawful authority and the same is required to be declared vacant and the petitioner as eleced member of the Council for having obtained 8.3 votes.
3. Respondents Nos.1 and 2, through written statement, have defended the election of respondent No,3 and respondent No,3 through a separate written statement, besides objecting to the maintainability of the petition, has defended the election. Preliminary objections have been raised in the written statements to the maintainability of the petition i,e, that the petitioner did not raise any objection at the time of filing of nomination paper by the respondent; that the petitioner accepted the election of respondent No,3 at the relevant time and did not file any petition before the Election Tribunal; and, that present petition is hit by rule of laches for having been filed after ten months of election. It is further stated in the written statement that the respondent contested the elections on the basis of Ordinance XXXVI of 2000 which excluded the office of Secretary, Kashmir Liberation Cell from the service of Azad Kashmir as office of profit. It is stated by respondent No,3 that besides office of Secretary, Kashmir Liberation Cell having been excluded from the purview of office of profit or service of Azad Jammu and Kashmir, he had resigned at the time of filing of nomination papers, hence no disqualification is 'attached to him. It is further stated that the office of Secretary, Kashmir Liberation Cell is not regularized by any statutory rule and is a discretionary post not a whole time office, therefore, the election is not hit by section 24(2)(d) of the Constitution.
4. The learned counsel for the petitioner contended that service of Azad Jammu and Kashmir is defined in section 2 of the Constitution under which all other offices not excluded from the service of Azad Kashmir stands included in the service of Azad Kashmir and the Ordinance excluding the office of Secretary, Kashmir Liberation Cell from service of Azad Jammu and Kashmir is repugnant to the definition of service of Azad Kashmir given in section 2 of the Constitution. According to the learned counsel, as respondent No,3 was disqualified at the time of election, the Ordinance could not remove the disqualification. The learned counsel further contended that the respondent was holding the office of Secretary, Kashmir Liberation Cell till 6-8-2001 when his resignation was accepted by the Prime Minister and he has also drawn salary of the office etc. Till August, 2001, which is indicative of the fact that he was holding office of Secretary, Kashmir Liberation Cell till then and in view of it he is disqualified from holding office. It is also contended that as the respondent has admitted himself to be in the service of Azad Kashmir on account of which the Ordinance was got issued and as soon as the same elapsed, the disqualification stands revived.
He further contended that the application showing resignation of the respondent and its acceptance by the Prime Minister is afterthought, concocted and mala fide exercise. Further argument of the learned counsel is that the principle of laches and estoppel does not apply in the case as the respondent suffers from Constitutional disqualification and it is not waived for failure of the petitioner to raise objection against the nomination. The learned counsel relied upon PLJ 1998 AJK 140 and 1999 MLD 268. He also contended that the Constitution does not exclude the jurisdiction of the High Court to take notice of the illegality of the election or disqualification of a member. He relied upon PLD 1990 Azad J&K 63 and 1999 MLD 261 in this behalf. The learned counsel in retrospect of above arguments contended that as the respondent was holding the office of profit in the service of Azad Jammu and Kashmir at the time of the election and the Ordinance on the basis of which he contested the election stands repealed with the efflux of time, the respondent stands disqualified and the petitioner is entitled to be declared a member of the Council. He placed reliance upon 1986 SCMR 1701 and PLD 1988 SC 118.
5. The learned counsel for the respondents, Mr. M. Tabbassam Aftab Alvi, arguing the case contended that the petitioner did not raise any objection to the election at the time of filing of nomination papers, hence on account of acquiescence by conduct the petitioner is estopped and cannot be allowed to challenge the election after having once failed in raising objection in time. He relied upon 1996 SCR 7; 1999 PLC (C.S.) 947 and 2001 PLC (C.S.)
28. He further contended that the disqualification, if any, attached to the respondent to be a candidate and now member, for being as Secretary, Kashmir Liberation Cell was removed by the Ordinance promulgated on 22-9-2000 while the election was held on 30-9-2000. According to him, as the respondent was not disqualified at the time of election, hence the petition is not maintainable. He also contended that the Ordinance was promulgated on 22-9-2000 and election notification was issued on 30-9-2000 while present petition is filed on 17-6-2001, therefore, it is hit by rule of laches. He placed reliance upon 1995 MLD 1350, PLD 1987 Lah. 251 and 1992 SCR 214. The learned counsel further contended that alternate remedy was available to the petitioner by way of filing of election petition before competent Authority and having failed to avail the same, the petition is not maintainable. The learned counsel relied upon PLD 1980 SC (AJ&K) 5, 1999 PLC (C.S.) 239, 1990 SCR 471, PLD 1995 SC (AJ&K) 1 and PLD 1988 SC 1. He also contended that under section 6 of General Clauses Act, the actions taken under a validly promulgated law i,e, the Ordinance, are valid notwithstanding of its being repealed later. In this behalf the learned counsel relied upon 1995 MLD 1299, 1997 MLD 2861.
He also contended that the Legislature was competent to exclude any office from operation of office of profit or service of Azad Kashmir under Second Schedule of the Constitution in view of clause (d), subsection (2) of section 24 of the Constitution which, authorizes exclusion of any other office under an Act of the Assembly from the office of profit and the service of Azad Kashmir or Service of Pakistan, besides other offices mentioned therein.
6. After hearing the learned Advocates for the parties, I have gone through pleadings of the parties as well as law cited at Bar.
7. Before dilating upon the arguments addressed by the learned Advocates for the parties at Bar, I deem it proper to record facts which are admitted between the parties which would help to resolve the controversy without going into details of arguments. Election of respondent No,3 as member of the Council, his being Secretary of Kashmir Liberation Cell at the time of election, acceptance of his resignation by the Government on 6-8-2001, issuance of Ordinance No,XXXVI of 2000, dated 22-9- 2000 excluding the office of Secretary, Kashmir Liberation Cell from service of Azad Kashmir, its repeal by efflux of time on expiry of four 'months on 22-1-2001, failure of the petitioner to raise objections to the nomination papers filed by respondent No,3, are the facts which are admitted between the parties. As far the acceptance of resignation from office of the Secretary, Kashmir Liberation Cell by the then Prime Minister supported by his affidavt filed in the Court today is concerned, it is disputed fact, hence no finding will be given on it, as the case can otherwise be decided.
8. I would first like to take up the point raised by the learned Advocate for the petitioner that respondent No,3 was holding office of profit in the service of Azad Kashmir for being appointed as Secretary, Kashmir Liberation Cell. The service of Azad Kashmir is defined in section 2 of the Constitution, as follows:-- Service of Azad Jammu and Kashmir'ns any service, post or office in connection with the affairs of Azad Jammu and Kashmir, including the Council, but does not include service as Chairman of the Council, President, Speaker, Deputy Speaker, Prime Minster, Minister, Federal Minister, Incharge of the Council Secretariat or Advisor appointed under section 21, [Parliamentary Secretary, Advisor to the Prime Minister] or a Member of the Assembly or Member of the Council.
9. Under section 21(4) of , the Constitution qualification and disqualification for being elected, as, and for being as member, of the Council, are the same as these are for being elected, as, and for being a member of the Assembly. The "disqualification" attributed against the respondents is for his being in the service of Azad Kashmir. Undef clause (d) subsection (2) of section 24 of the Constitution the disqualification for being as candidate or Member of Council on account of being in the service of Azad Kashmir is provided as follows:-- "(d) he holds any office of profit in the service of Azad Jammu and Kashmir or in the service of Pakistan other than an office which is not a wholetime office remunerated either by salary or by fee er than an office specified in the Second Schedule."
' Perusal of the above reveals that disqualification is further subjected to exceptions specified in Second Schedule of the Constitution, which is as follows:-- "Second Schedule
(1) An office which is not a whole time office remunerated either by salary or by fee.
(2) The office of Lamberdar, Inamdar, Sufedposh and Zaildar, whether called by this or any other title.
(3) The offices of the Chairman of the Union Council, Union Committee and Town Committee and of the Vice-Chairman of the Municipal Committee and the District Council.
(4) Reserve of the'Armed Forces.
(5) other office which is declared by an Act of the Assembly not to disqualify its holder from being elected as or from being a member of the Assembly."
' Clause (5) of the above Schedule is of importance as far fate of this case is concerned.
10. Though it is admitted that the Ordinance was not placed before the Assembly, thus, it could not become an act of the assembly, however, it had same force from the date of its promulgation as an Act of the assembly in view of section 41(2) of the Constitution, which is as follows:-- "41(2). An Ordinance promulgated under this section shall have the same force and effect as an act of .The Assembly and shall be subject to like restrictions as the power of the Assembly to make law, but every such Ordinance."
11. Under the Ordinance, the office of Secretary, Kashmir Liberation Cell was excluded from the office of profit in the service of Azad Kashmir. Under clause (5) of above-referred Schedule, the Legislature was well within its power to do so. Thus, in view of the above clause it becomes crystal clear that the respondent was then not disqualified to be a candidate and then a member of the Council. It is because of this reason that no objection was raised to the nomination of the respondent neither was election challenged till the Ordinance remained in force. This position is also 'admitted by the learned Advocate filing the petition in para. 3 thereof which is as follows:-- "That non-petitioner No,3 at the time of election was Secretary, Kashmir Liberation Cell. Who manoeuvred issuance of an Ordinance through non-applicant No,1 by which the office of Secretary, Kashmir Liberation Cell was excluded from operation of ton 5, subsection (2), clause (iv) of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970. And the disqualification created by the said Ordinance was removed through amended Ordinance No,XXVI of 2000."
12. In view of above Constitutional and admitted factual position the respondent was not disqualified at the time of election, and the disqualification, if any, attached to the respondent, arose after the Ordinance stood repealed on 22-1-2001 due to efflux of time and it is also admitted by the Advocate for the petitioner in para. 6 of the petition, as follows:-- "That the Ordinance, dated 22-9-2000 stands repealed by efflux of time as the same has neither been placed before the Assembly during 120 days nor has the same been repeated since 22-1-2001 till today-affidavit attached."
' Thus, the question of disqualification of the respondent has arisen after his election, which took place and was notified on 30-9-2000. This is also admitted in para.8 of the petition unequivocally which is as follows:-- "That subject controversy ates to post election time the non-petitioner acted unconstitutionally."
12. Under subsection (4-B) of section 21 of the Constitution, if the disqualification is incurred after election that question can be resolved by Chief Election Commissioner only on reference to be made by Chairman of Azad Jammu and Kashmir Council. Relevant subsection of section 21 of the Constitution is reproduced below:-- "(4-B). If any question arises whether a member has, er his election, become disqualified from being a member of the Council, Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the - member shall cease to be a member and his seat shall become vacant."
13. Argument of the learned Advocate for the petitioner that the High Court should take notice of the illegality and decide the matter itself, amounts to far-fetched interpretation, which is in negation of clear provision of the Constitution. His reliance upon 1998 SCR 383 (Iqbal, Razzaq Butt v.
Abdul Razzaq Butt and 6 others) does not apply in the case in hand in which it was held that Election Tribunal cannot set aside the decision of Returning Officer accepting nomination papers of a candidate even if the same is done illegally or if the candidate is not qualified to be elected as the Member, while the question involved in this case is with respect to disqualification of the respondent incurred after election, not relating to nomination. The reliance placed upon Chaudhry Akhtar Hussain and others v. Election Commissioner and 4 others PLD 1990 (AJ&K) 61 is equally untenable as it was a pre-election matter while the dispute in the case in hand relates to "post- election matter" which is admitted by the petitioner through his Advocate in his petition.
14. The Courts, no doubt, are jealous in assuming and extending their jurisdiction under the principles of judicial activism but it should not subvert the express provisions of the Constitution. It is only in an ambiguous or anomalous position of law that the Court should assume the jurisdiction by having resort to its inherent powers to fill the void in the law, but where the provisions of law are clear and parties also admit the facts which leave no ambiguity, it would be adventurism and transgression to extend or assume the jurisdiction.
15. The objections raised to the maintainability of the petition by the learned Advocates for the .Respondents, based on the ground of laches, acquiescence and alternate remedy can also not be gone into in this case, for the reason that as the matter relating to disqualification has to be decided by Chief Election Commissioner, any opinion on these points would influence his mind, who alone is competent to look into all aspects of the case.
16. The Chairman, Azad Jammu and Kashmir Council is not impleaded as party by the petitioner, hence, no direction can be issued by this Court to the Chairman for making a reference to the Chief Election Commissioner.
17. The upshot of above discussion is that the office of Secretary, Kashmir Liberation Cell which the respondent was holding at the time of his election as member of the Azad Jammu and Kashmir Council was excluded from the purview of office of profit in the service of Azad Jammu and Kashmir under Ordinance No,XXXVI of 2000, and his disqualification, if any, from being a member of the Council has arisen after his election on the repeal of the said Ordinance by efflux of time, hence the question can be decided by the Chief Election Commissioner under subsection (4-B) of section 21 of the Constitution. The petition is, I therefore, dismissed, with costs.