Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 147 (JK)

Mubarak Ahmad Shah v. State

2015-04-03

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT In terms of SRO 326 dated 15th July, 2013, Election Notification was issued for electing the members for constituting the 3rd LAHDC Kargil. The petitioner as also the private respondent responded to the aforesaid notification for Constituency Ranbir-pora Drass. The petitioner sought election to the said constituency as a candidate of Jammu and Kashmir National Conference. In the elections, the private respondent, who belongs to Indian National Congress, was declared elected. The petitioner filed an application before the Deputy Commissioner (Election Authority), Kargil, wherein he prayed that the results of constituency Ranbir-Pora, Drass be kept under abeyance and necessary instructions be issued to defer the oath taking ceremony till the matter is sorted out. The application was filed on the ground that about 70 polled votes were wrongly rejected. The Deputy Commissioner (Election authority), Kargil dismissed the application vide his order dated 12th September, 2013. It is this order which is called in question in this writ petition. The elections to Ladakh Autonomous Hill Development Council, Kargil are being conducted in accordance with the Ladakh Autonomous Hill Development Council Act, 1997 (for short ‘Act of 1997’) and Ladakh Autonomous Hill Development Councils (Election) Rules, 1995 (for short ‘Rules of 1995’). Section 12 of the Act of 1997 deals with the disputes regarding the elections, the said Section is taken note of:- “...(1) No election shall be called in question except by an election petition presented in such manner as may be prescribed and before such authority as may be appointed by Government, from time to time, by notification in the Government Gazette. Provided that no person below the rank of a District Judge shall be appointed for the purpose of this section. (2) No election shall be called in question except on any one or more of the following grounds, namely:- (a) that on the date of his election the returned candidate was not qualified or was disqualified, to be chosen to fill the seat in the council; (b) that a corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Explanation— For the purposes of this section “corrupt practice” shall mean any of the corrupt practices specified in section 132 of the Jammu and Kashmir Representation of the people Act, 1957; (c) that any nomination has been improperly rejected; (d) that the result of the election in so far as it concerns the returned candidate has been materially affected. (i) by any improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent; or (iii) by the improper reception, refusal or rejection of any vote; or (iv) by the receipt of any vote which is void; or (v) by any non-compliance with provisions of this Act or of any rules or orders made thereunder. (3) At the conclusion of the trail of an election petition the authority appointed under sub-section (1) shall make an order. (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidates to have been duly elected. (4) If a petitioner in addition to calling in question the election of a returned candidate makes a declaration that he himself or any other candidate has been duly elected and the authority under sub-section (1) is of opinion that- (a) in fact the petitioner or such other candidate has received the majority of valid votes; or (b) but for the votes obtained by the returned candidate by corrupt practice the petitioner or such other candidate would have obtained the majority of the valid votes, the authority as aforesaid shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. The Section 12 is a complete Code in itself. It prescribes that no election shall be called in question except by an election petition presented in such manner as may be prescribed, and before such authority as may be appointed by Government, from time to time, by notification in the Government Gazette. The proviso attached to Sub Section (1) of Section 12, provide that no person below the rank of District Judge shall be appointed for the purpose of this section. The proviso attached to Sub Section (1) of Section 12, provide that no person below the rank of District Judge shall be appointed for the purpose of this section. The Government, vide Notification SRO 311 dated 17th October, 2008, in exercise of powers conferred by Sub Section (1) of Section 12 of Act of 1997 has appointed District and Session Judge, Kargil as the authority for purposes of the said section. Copy of the notification produced by learned counsel for the respondents is taken on record. In view of the mandate contained in Section 12 of the Act of 1997, the only mode and method to call in question the election, is by way of filing of election petition in accordance with the manner prescribed in terms of Rules of 1995. The procedure has been prescribed and in terms of Sub Section (1) of Section 12, the Government has appointed the District Judge as the authority to hear such election petitions. In this petition, the petitioner has not challenged the election of private respondent, but has raised the dispute about the rejection of 70 polled votes that too by filing of an application before the Deputy Commissioner (Election Authority), Kargil. After declaration of the results the only manner provided for challenging the election on any prescribed ground is detailed out in Section 12 of the Act of 1997. One of the grounds prescribed in Explanation (III) of Sub Section 2 (b) of Section 12 is that election petition can be filed on the ground of improper reception, refusal or rejection of any vote. In the fact situation of this case and in view of the aforesaid legal position, the application/representation filed by the petitioner before the Deputy Commissioner (Election Authority), Kargil was inconsequential and the order passed thereon by the Deputy Commissioner (Election Authority), Kargil is also inconsequential. The elections can be challenged only in the manner prescribed in the Act of 1997 and Rules of 1995 and not by any other mode or method. The arguments of learned counsel for the petitioner that notification was to be issued from time to time as prescribed in Section 12 (1), would mean that in every election, fresh notification for appointing the authority to hear the petitions was required to be issued by the Government, is not in consonance with the scheme of the Act of 1997. The arguments of learned counsel for the petitioner that notification was to be issued from time to time as prescribed in Section 12 (1), would mean that in every election, fresh notification for appointing the authority to hear the petitions was required to be issued by the Government, is not in consonance with the scheme of the Act of 1997. The requirement of Sub Section (1) of Section 12 is for appointing the Authority to hear the election petitions. Discretion is given to the Government to appoint the authority from time to time. The Government may appoint the authority either once or more than one times. In this case the District and Session Judge has been appointed as the authority vide Notification SRO 311 dated 17th October, 2008, so that notification will hold the ground until such time a fresh notification is issued by the Government For the above stated reasons this writ petition along with connected I.A’s is disposed of in the following manner:- It is declared that the application/representation filed by the petitioner in respect of rejected votes before the Deputy Commissioner (Election Authority), Kargil is inconsequential and without support of law. Consequently the order passed by the Deputy Commissioner (Election Authority), Kargil is rendered inconsequential and has no force in law.