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Petitioner: Sardar SIKANDAR HAYAT KHAN VS Respondent: Syed GHULAM MUJTABA BOKHARI and
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Basharat Ahmed Sheikh, Sardar Said Muhammad Khan Title:Sardar SIKANDAR HAYAT KHAN vs Syed GHULAM MUJTABA BOKHARI and
JUDGMENT
Reported As: PLD 1991 Supreme Court (AJ&K) 1 Result: Appeals dismissed Judgment JUDGMENT SARDAR SAID MUHAMMAD KHAN, ACTG. C.J.---As the above entitled two appeals arise out of a single judgment of the High Court and identical law points are involved in these appeals, I propose to dispose of the same by the single order. Brief facts giving rise to the present appeals are that two separate writ petitions were filed: One by Syed Ghulam Mujtaba Bokhari and other by Ch. Ghulam Sabir and Ch. Akhtar Hussain, respondents, whereby the order of acceptance of the nomination paper of the appellant to contest election to the Azad Jammu and Kashmir Legislative Assembly from the Constituency LA-34, Jammu and others-- 6 and order passed by the Chief Election Commissioner on appeal were challenged. The grievance of respondents was that Sardar Sikandar Hayat Khan, appellant herein, was the resident of village Krela-Manjhan, Tehsil Nakyal, District Kotli and was also enrolled in the electoral rolls of that area at serial No.387; the relevant constituency is described as LA-9 Kotli-2. Thus, according to the respondents, the appellant was not qualified to contest election from the Constituency LA-34, Jammu and others-- 6, as only a person satisfying the conditions envisaged in clause (3) of section 2 of the Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970 (hereinafter shall be called as Ordinance VI of 1970), could contest election from the said constituency. Their case is that the aforesaid provision postulates that only refugees other than those mentioned in clause (2) of section 2 of the said Ordinance and persons who originally resided in the Azad Kashmir territory
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but are now residing in the area envisaged in clause (3) of section 2 of Ordinance VI of 1970, were competent to contest elections against a seat falling in the category of the said provision. It was further the case of the respondents that the entry in the electoral rolls of LA-34 Jammu and others 6 was manoeuvred by the appellant through his influence and was violative of the relevant rules because the appellant was not only entered as a voter in Constituency LA-9 Kotli-2 at serial No.387 but was also entered as a voter in the electoral rolls of two other electoral areas situated within the territorial limits of Azad Jammu and Kashmir State. According to the respondents, even if a person resides at more than one places, in view of the provisions contained in section 12 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970 (hereinafter shall he called the Ordinance I of 1970), he can be regarded resident of only one electoral area for the purpose of election. The High Court accepted both the writ petitions and held that the order of Returning Officer whereby he accepted the nomination paper of the appellant and the order passed on appeal by the Chief Election Commissioner were violative of the relevant law on the subject. Thus, it was opined that the appellant was debarred from contesting the election from the constituency in question because he did not ordinarily reside within territorial limits of the area which comprises the constituency in question. Before dealing with the points involved in the case, it would be expedient to reproduce the relevant provisions contained in Ordinance I of 1970 and Ordiance VI of 1970. Sections 12 and 13 of Ordinance I of 1970 are as under:-- "12. Meaning of 'resident'.---(1) Save as hereinafter provided, a person shall be deemed to be resident in an electoral area if he-- (a) ordinarily resides in that area; or (b) owns or is in possession of dwelling house or immovable property in an electoral area in the territories administered by the Government: Provided that where any such person owns or possesses more than one dwelling house or other immovable property in more than one electoral area in such territories, he, his wife and children ordinarily resident with him, if otherwise elegible for enrolment, may at his option be enrolled in any one of such areas. (2) A person who for any reason resides in an electoral area other than electoral area in which he would have but for such reason been resident shall, unless he otherwise indicates in writing to the Registration Officer, be deemed to be resident in the latter electoral area. (3) The wife of any such person as is referred to in subsection (2) shall, if she ordinarily resides with such person, be deemed to be resident in the electoral area in which her husband is deemed to be resident under that subsection. (4) A person who is detained in prison or other legal custody shall be deemed to be resident in the electoral area in which he would have been resident if he had not been so detained. (5) Where the resident of a State subject is in doubt, he may himself indicate the electoral area on the electoral roll of which he desires to be enrolled. 13. No person to be enrolled more than once or in more than one electoral area.---No person shall be entitled to be enrolled-- (a) on the electoral roll for any electoral area more than once; or (b) on the electoral rolls for more than one electoral area." Section 2 of Ordinance VI of 1970 is reproduced as under:-- "2. Composition of the Legislative Assembly.---As soon as may be after the promulgation of this Ordinance and notwithstanding anything contained in the Azad Jammu and Kashmir Government Act, 1968, there shall be constituted in the manner hereinafter appearing a Legislative Assembly consisting of--
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(1) twenty-eight members to be elected by the State subjects residing in the territories now under the administration of the Azad Government of the State of Jammu and Kashmir; (2) six members to be elected from amongst themselves by the refugees from the occupied areas of districts of Muzaffarabad, Anantnag (Islamabad) and Baramula as these existed on 14th day of August, 1947, who are now residing in any of the provinces of the Punjab, Balochistan, Sindh and North-West Frontier Province; (3) six members to be elected from amongst themselves by such of the State subjects from other parts of the State of Jammu and Kashmir, and State subjects originally residing in territories under the administration of Azad Government of the State of Jammu and Kashmir, as are now residing in the provinces referred to in clause (2); (4) It has been contended on behalf of the appellant that in view of the provisions contained in section 24 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter shall be called as the Interim Constitution Act), the provisions contained in section 2 of the Ordinance VI of 1970 are nullity because the same arc violative of the aforesaid Constitutional provisions. According to the learned counsel for the appellant, subsection (1) of section 24 of the Interim Constitution Act envisages only three qualifications for contesting elections to the Azad Jammu and Kashmir Legislative Assembly, namely that:-- (a) he is a State subject; (b) he is not less than 25 years of age; and (c) his name appears on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan. The learned counsel for the appellant submitted that any disqualification attached by or under a subordinate legislation which is found to be violative of the abovementioned three conditions cannot be regarded as a valid law and, thus, is of no legal consequence. It was contended on the aforesaid premises that as the distribution of the seats envisaged in clauses (2) and (3) of section 2 of the Ordinance VI of 1970 is derogatory to the aforesaid Constitutional provision, the appellant could not be debarred from contesting election from the Constituency LA-34 Jammu and others 6. The learned counsel also argued that a person who is enrolled as a voter in any of the constituencies situated in the territory of Pakistan or the State of Azad Jammu and Kashmir is legally competent to contest election to the Azad Jammu and Kashmir Legislative Assembly from any constituency irrespective of the fact as to whether his name is entered in the electoral roll of the relevant constituency. It was submitted that reservation of the seats or distribution of the same would not create a bar to contest for any such seat because the provisions contained in section 2 of Ordinance VI of 1970 are violative of section 24 of the Interim Constitution Act, 1974. In reply it was contended that subsection (1) of section 24 of the Interim Constitution Act cannot be read in isolation; the same is to be read alongwith disqualifications postulated under subsection (2) of section 24 and any other disqualification imposed by virtue of clause (f) of subsection (2) of section 24 which stipulates that a person can be disqualified from contesting election to Legislative Assembly by this Act or by or under any other law. It was vehemently argued that the expression "by this Act" and expression "by or under any other law" stipulate that a disqualification can be imposed for contesting election to the Legislative Assembly either in explicit terms or by necessary implication. It was contended that the provisions contained in section 2 of the Ordinance VI of 1970 cannot be regarded to be violative of the provisions contained in section 24 of the Interim Constitution Act, as these provisions are in consonance with the letter and spirit of the provisions contained in section 24 of the Interim Constitution Act and are protected under clause (f) of subsection (2) of section 24 of the Interim Constitution Act. A disqualification can he imposed for contesting election to the Legislative Assembly as has been done under Ordinance VI of 1970. It was
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further maintained that although the provisions contained in section 2 of the Ordinance VI of 1970 do not speak of disqualification in explicit terms but those are apparent and can be easily spelled out from the aforesaid provisions which place an embargo on contesting election in terms that the election to six seats contained in clause (2) and six seats envisaged in clause (3) of section 2 of Ordinance VI of 1970 could be contested only by a person who satisfies the relevant conditions, i.e. If he is a refugee from an area mentioned in the aforesaid clauses and is residing in any of the provinces of Pakistan or is a migrant from Azad Kashmir territory and is residing in any of the said provinces. The case of the respondents is that as the appellant, Sardar Sikandar Hayat Khan, was neither a refugee from ,an area envisaged under the aforesaid provisions or a migrant from the territory of the Azad Jammu and Kashmir State, nor he ordinarily resides in the relevant area, he was not legally competent to contest the election from the constituency in question. It was contended that a person must be resident within the meaning of section 12 of Ordinance I of 1970 (as amended uptodate). It was further argued that in view of the provisions contained in section 12 of Ordinance I of 1970, a person may be resident of more than one places but for the purpose of election he will be deemed to be the resident of only one place and could be entered as a voter in the electoral roll of only one of such electoral areas. The artificial meaning ascribed to the word 'resident' under section 12 of Ordinance I of 1970 does not leave any room for the enrolment of a person as a voter in more than one electoral areas or more than once in the same electoral area. The first question which needs to be resolved is as to whether the provisions contained in section 2 of Ordinance VI of 1970 are violative of the Constitutional provisions contained in section 24 of the Interim Constitution Act; and whether the conditions envisaged in clauses (2) and (3) of section 2 of the aforesaid Ordinance would debar a person from contesting the elections against a reserved seat envisaged under the aforesaid provisions. A plain reading of section 24 of the Interim Constitution Act clearly reveals that general qualifications for contesting election to the Azad Jammu and Kashmir Legislative Assembly envisaged in subsection (1) of section 24 of the Interim. Constitution Act are to be read jointly with disqualifications enumerated under subsection (2) of section 24 of the Interim Constitution Act. The general qualifications envisaged under subsection (1) of section 24 do not bestow an absolute right upon a person to contest election irrespective of the disqualifications which are laid down under subsection (2) of section 24. Any of the disqualifications envisaged under the aforesaid provisions or by or under law envisaged under clause (1) of section 24 of the Interim Constitution Act, would disentitle a person to contest elections to the Legislative Assembly, despite the fact that he possesses all the three qualifications laid down under subsection (1) of section 24 of the Interim Constitution Act. Any disqualification imposed by a subordinate legislation as envisaged under clause (f) of subsection (2) of section 24 of the Interim Constitution Act would equally debar a person from contesting election and the disqualifications so imposed would be as good as any disqualification enumerated in subsection (2) of section 24 of the Interim Constitution Act, because a disqualification imposed by subordinate legislation would have sanction of Constitutional provisions contained in clause (f) of subsection (2) of section 24 which envisage that a disqualification can be imposed by any other law. The next question which needs to be resolved is as to whether the condition that a person who intends to contest election against any of the reserved seats envisaged in clauses (2) and (3) of section 2 of Ordinance VI of 1970 would be a disqualification within the meanings of subsection (2) of section 24 of the Interim Constitution Act. The answer to the question is in affirmative. The basic rule of interpretation is that while interpreting a statutory provision, the intention of the Legislature is to be ascertained. It has not been controverted that all election laws are statutes in pari materia and the same are to be read together in aid of each other. A reference may be made to cases reported as Malik Muhammad Din & Sons v. Trustees of the Port of Karachi PLD 1966 Kar. 518, J.K.
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Steel Ltd. v. Union of India AIR 1970 SC 1173 and Muhammad Baqar v. S. Muhammad Casim AIR 1932 Oudh 10 which support the aforesaid proposition. The history of the legislation on the subject in question reveals that the reservation of seats for refugees and migrants from Azad Kashmir was made with the intention to give representation to all the sections of the State subjects, i.e., the refugees from Kashmir Valley, refugees from the Jammu and other parts of the State including the migr. s from the Azad Jammu and Kashmir who, at the relevant time, were residing in any of the provinces of Pakistan. The learned counsel for the appellant vehemently argued that the provisions contained in section 2 of Ordinance VI of 1970 are merely regulatory in nature and those cannot be interpreted to impose any disqualification. Assuming for the sake of arguments that the word 'disqualification' is not a proper term to signify the conditions envisaged under section 2 of Ordinance VI of 1970, the fact remains that the election to the reserved seats cannot be contested until and unless the conditions precedent laid down in the Ordinance are fulfilled, i.e., that the person falls within one of the categories of State subjects envisaged therein; and he is resident of any of four provinces of Pakistan. Whether we term the embargo as `disqualifications' or 'conditions', it would not make any difference so far as the consequences of the aforesaid provisions are concerned. The next point which falls for consideration is as to whether the appellant falls within the ambit of provisions contained in clause (3) of section 2 of Ordinance VI of 1970. It is not denied that the appellant had been previously contesting the elections to Legislative Assembly from Constituency LA-9 Kotli-2 and has also contested present election from there. He is entered as a voter in Azad Kashmir in more than one constituencies. It is also not controverted that a person cannot be entered as a voter twice in the same electoral area or in different electoral areas, in view of the provisions contained in section 13 of Ordinance I of 1970; it is also not disputed that for the purpose of election laws a person can be regarded resident of only one of the electoral areas or electoral units even if he owns immovable property in more than one such places in which case he has to make a choice with regard to his place of residence as envisaged in the provisions contained in section 12 of Ordinance I of 1970. The learned counsel for the appellant have contended that the violation of any of provisions of sections 12 and 13 of Ordinance I of 1970, such as failing to make choice of residence or entry of the appellant as a voter in more than one electoral areas would not debar him from contesting election from the Constituency LA-34 Jammu and others 6, if he shows that he ordinarily resides in the said constituency. It was not controverted that clause (b) of subsection (1) of section 12 of Ordinance I of 1970 would not be attracted in case of the appellant because the aforesaid provisions visualise that a person seeking to be registered as a voter must own or be in possession of a house or other immovable property in an electoral area in the territories administered by the Government. The word `Government' has been defined in the relevant Ordinance itself which means the Government of Azad Jammu and Kashmir State. Thus, even if the appellant owns immovable property in the constituency in question, it would not entitle him to contest election from the said constituency because that is not under the administrative control of the Government of Azad Jammu and Kashmir State. It was conceded at the bar that the case of the appellant is to be adjudged in view of the provisions contained in clause (a) of subsection (1) of section 12 which says that for being qualified to be entered as a voter, the person must be ordinarily residing in the relevant area. The perusal of the judgment of the High Court as well as the arguments advanced in this Court tend to show that the case of the appellant is that he would be deemed to be resident of the constituency in question because he has been residing in the house of one Hamid Akhtar who happens to be his friend or is merely acquainted with him. The said house is admittedly situated in Rawalpindi which forms a part of the constituency in question for election purposes. The findings of the High Court on the point are that a person cannot become a resident of a place within the meanings of clause (a) of subsection (1) of section 12 of Ordinance I
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of 1970 merely by staying with a person for certain pdriod as relative or friend, especially so when the person concerned is resident of another place, as in case of the appellant who is resident of village Krela-Manjhan from where he had been contesting elections previously and has also contested the present election. It has also been half-heartedly argued that the appellant's father owned some immovable property in the Indian held area for which he had submitted a claim under the relevant law and was paid compensation. In the instant case, the question whether the appellant is a refugee or not; or whether he owns immovable property in the constituency in question is immaterial in view of the provisions contained in section 12 of Ordinance I of 1970. The moot point in the case which needs to be resolved is as to whether the appellant can be deemed to be a resident of the constituency in question because he has been residing in the house mentioned above. It may be observed here that even if it is assumed that the appellant is a refugee, he would have to show that he is a resident of the electoral area in question within the meanings of section 12 of Ordinance I of 1970. I have given my deep thought to the argument advanced at the bar and I am not impressed by the argument that the appellant, who is a permanent resident of village Krela-Manjhan and has been residing for the last five years at Muzaffarabad as Prime Minister of the State of Azad Jammu and Kashmir, can be regarded a resident of the constituency in question merely because he has been lodging with Hamid Akhtar who is his friend or is merely an acquaintance. The expression "ordinarily resides" signifies more than a casual dwelling at a certain place. It may not be a permanent dwelling either but it is definitely not a temporary dwelling as in the case of the appellant. The expression 'ordinarily resides' implies that a person lives at a place with his wife or children, if any, and resides there for reasonable period and follows there the ordinary pursuits of his life occasioned by the nature of his profession. One may reside at a particular place say for a year or more in connection with business or due to some other engagements but he cannot be regarded to be an ordinary resident of that place within the meanings of section 12 of Ordinance I of 1970. It has been strenuously argued on behalf of the appellant that as the appellant has been entered in the electoral rolls of the constituency LA-34 Jammu and others 6, it would be presumed that he is resident of the said constituency. It has been further maintained that presumption arising from the aforesaid entry has not been rebutted in the instant case because there is no evidence to the contrary. It was argued that onus of proof that appellant was not resident of constituency in question was on the respondents. The question of onus of proof or rebutting a fact is to be seen in the context of the pleadings of the parties. The respondents have alleged that the appellant cannot be regarded as resident of the constituency in question and have stated the reasons in support of their averments in their writ petitions. The appellant had to plead in his written statement as to how he would be deemed as ordinary resident of the constituency in question. In other words he had to spell out all the circumstances on which he relies to substantiate his claim that he is resident of the constituency in question. Mere assertion by the appellant in his pleadings that he is a resident of the constituency because he is entered as such in the electoral rolls of the constituency is not sufficient to establish his case. If the respondents show on the strength of the admitted facts that the appellant cannot be regarded to be a resident of the constituency in question as envisaged in the relevant law, the onus would shift to the appellant and he cannot be deemed to have discharged the same merely on the basis of presumption which arises from the entry in the electoral rolls. The fact that the appellant could not have been entered as a voter in more than one electoral areas or election units is sufficient to rebut the initial presumption in favour of the appellant regarding his ordinary place of residence, because even if he was resident of more than one places, he could not be entered as a voter in the electoral rolls in view of the provisions contained in section 12 read with section 13 of Ordinance I of 1970. It has been contended that under section 8(2) of Ordinance I of 1970, the electoral rolls of the voters residing in Pakistan
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are not to be prepared with reference to any 'electoral area' and, thus, section 13 which prohibits the entry of a voter in more than one electoral areas would not be attracted in the case of the appellant. It is correct that section 8(2) contained in Ordinance I of 1970 envisages that electoral rolls of voters residing in Pakistan would not be prepared with reference to any 'electoral area', but all the same sections 10 and 12 of Ordinance I of 1970 envisage the preparation of electoral rolls of the 'electoral areas'. If the argument is accepted that the electoral rolls of the residents in Pakistan were not to be prepared on the basis ,of 'electoral area', as such the use of the aforesaid expression in sections 10 and 12 of the Ordinance would be only applicable in case of area comprising the territory of the State of Azad Jammu and Kashmir. Then the question would arise under which of the provisions of Ordinance I of 1970, the electoral rolls of the residents of the provinces of Pakistan would be prepared. There is no other provision in Ordinance in that regard. Thus, irrespective of the provisions contained in subsection (2) of section 8, in view of the provisions contained in sections 10 and 12 of the Ordinance I of 1970, the…
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