Sardar NASIM AHMED SARFRAZ Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

ORDER

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, 21000. 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 manoeuvred 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 The Ordinance was neither placed before the Assembly nor was repromulgated on account of which it stands repealed by efflux of time on 22‑1‑2001 The petitioner contends that the respondent No.3 was not qualified to contest the election at the relevant time but promulgation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 elected member of the Council for having obtained 8.3 votes.

3. Respondents Nos.l 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 it 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 affidavit 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' means 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. Under 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 other 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 wholetime 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) Any 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 section 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 relates to post election time and 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, after his election, become disqualified from being a member of the Council, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has bee‑ere 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 ate 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, therefore, dismissed, with costs.

H.B.T./32/AJ&K

Petition dismissed.