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2018 DIGILAW 916 (JK)

Aurshid Hussain v. State of J&K

2018-11-29

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of the present petition, the petitioner inter alia seeks issuance of an appropriate writ, order or direction in the nature of certiorari for quashing Order No.CEO/Pyt/2018/722 dated 22.11.2018 issued by respondent No.5. A further prayer has been made for issuance of writ of mandamus whereby directing the respondents not to enforce order impugned dated 22.11.2018 issued by respondent No.5. 2. Brief facts of the case are that the petitioner being resident of Panchayat Halqa Behota Lower has filed Nomination Form for the post of Sarpanch for Panchayat Halqa Behota Lower. The private respondent also filed his Nomination Form for the post of Sarpanch Panchayat Halqa Behota Lower, but his Nomination Form was rejected by Returning Officer on the complaint filed by petitioner with respect to his eligibility as the private respondent was/is actually and physically residing in Panchayat Halqa Behota Upper. Thereafter petitioner filed an application before respondent No.4 for deletion of the name of private respondent from Panchayat Halqa Behota Lower as the private respondent was/is a resident of Panchayat Halqa Behota Upper and respondent No.4 by considering this aspect of the matter deleted the name of private respondent from the Electoral Voter List of Panchayat Halqa Behota Lower. When the controversy with respect to residential status of private respondent arose, the respondent No.4 directed the Block Development Officer, Marmat, to conduct spot verification, who after conducting a spot verification, submitted his report being No.BDO/M/2018-19/712 dated 12.11.2018, in which, it was reported that private respondent enrolled in Assembly Voter List in Panchayat Upper Behota and also the private respondent during the Panchayat Election 2012 was enrolled in Ward No.4 of Panchayat Upper Behota. Moreover, Lumberdar of the area has also reported that the private respondent has casted his vote in Panchayat Upper Behota during Panchayat Elections 2011 and during the Assembly Elections 2014 and as per the Census 2010-11 the private respondent is enrolled in Panchayat Upper Behota and till date his name exists in the Voter List of Panchayat Upper Behota. Moreover, Lumberdar of the area has also reported that the private respondent has casted his vote in Panchayat Upper Behota during Panchayat Elections 2011 and during the Assembly Elections 2014 and as per the Census 2010-11 the private respondent is enrolled in Panchayat Upper Behota and till date his name exists in the Voter List of Panchayat Upper Behota. The private respondent being aggrieved of deletion of his name from the Voter Lists of Panchayat Lower Behota, filed an appeal before the respondent No.5who without knowing the ground reality vide Order dated 22.11.2018 set aside the order dated 12.11.2018 passed by respondent No.4, with further direction to include the name of private respondent in Electoral Voter List of Panchayat Lower Behota. It is further stated that the order impugned is further bad as the private respondent just for the sake of contesting Panchayat Elections has fraudulently obtained Ration Card for Panchayat Halqa Lower Behota from Fair Price Shop Shamus Din on 30.10.2018 when the fact remains that the said Shamus Din has died prior than 30.10.2018 and it is only the private respondent who unlawfully got this Ration Card issued which clearly indicates the magnitude of influence used by private respondent for contesting Panchayat Elections. 3. During the course of arguments, learned counsel for the petitioner has argued that there is no provision of appeal in the Panchayat Raj Act under which the respondent No.5 can entertain and decide the appeal filed by the private respondent. The order impugned is bad on the ground that the private respondent is actually and physically residing at Samroli along with his family members and moreover, the private respondent is having his own house at Samroli and is also running a business of Sweet Shop under the name and style of “Iqra Sweets”. The order impugned is also bad as the same has been issued with the total non application of mind and has been issued without being heard to the petitioner. Whereas Ms. Seema Shekhar, learned Sr. AAG has argued that this petition pertains to disputed question of fact, which cannot be decided in this petition. She has further argued that this petition is not maintainable as the order impugned has already been executed and a fresh notification of Panchayat Election has been issued. 4. I have considered the rival contentions of learned counsel for the petitioner as well as the State counsel. She has further argued that this petition is not maintainable as the order impugned has already been executed and a fresh notification of Panchayat Election has been issued. 4. I have considered the rival contentions of learned counsel for the petitioner as well as the State counsel. 5. From perusal of the file it reveals that the respondent No.5 herein filed nomination paper for Panchayat election in Halqa Panchayat Behota Lower but his nomination was rejected vide order dated 12.11.2018 passed by the Returning Officer on the objections filed by the petitioner herein with regard to the eligibility i.e., the respondent No.5 is actually residing in Panchayat Halqa Upper. Thereafter, respondent No.5 filed an appeal, the same was accepted by the Chief Electoral Officer, J&K vide order dated 22.11.2018. It is apt to reproduce the impugned order as under: Office of the Election Authority Under J&K Panchayati Raj Act 1989 (Chief Electoral Officer, J&K) Subject: Appeal titled Mushtaq Ahmad Bhat versus Returning Officer, Sarpanch Constituency Behota Lower Block Marmat, Doda and other ORDER No.CEO/Pyt/2018/722 DATED:22.11.2018 Whereas, the appellant preferred to file the afore titled appeal seeking quashment of Order No.ENT/D/18/3645-47 dated 12-11-2018 passed by respondent No.2 (Electoral Registration Officer, Doda) and also sought to allow the appellant to contest the Panchayat elections as Sarpanch from Panchayat Halqa Behota Lower and Whereas, report in the matter was sought and also principle of audi alterum partem was duly followed by way of providing opportunity of hearing to the petitioner in the instant matter through his counsel: and Whereas, a report has also been received from the District Panchayat Election Officer, (Deputy Commissioner) Doda accompanied with relevant documents: and Whereas, after hearing the Ld. Counsel for petitioner and upon perusal of the records, it is revealed that the petitioner was registered as voter at both the Panchayats i.e., Panchayat Halqa Upper-Behota as well as Panchayat Halqa Behota lower; however his name has been deleted in the supplementary list of electoral roll of Panchayat Lower Behota without giving an opportunity of being heard and as a sequel thereto, his nomination as Sarpanch for Halqa Panchayat Behota Lower was rejected by concerned Returning Officer. It has been reported that the appellant as well as his family has dwelling units as well as land ownership in both the Panchayat. It has been reported that the appellant as well as his family has dwelling units as well as land ownership in both the Panchayat. As such, he should have been provided an opportunity for enrollment as voter on the electoral roll of any of the two Panchayats, which otherwise was not provided. During hearing, the appellant has expressed to be enrolled in Panchayat Halqa Behota Lower Block Marmat, District Doda; and Whereas, it is apparent that the rejection of nomination of the appellant as Sarpanch for Panchayat Halqa Behota Lower, Block Marmat, was improper and as a result, the election process of Sarpanch seat for Panchat Halqa Behota Lower from the date of scrutiny onwards has got vitiated: Now, therefore, consequent upon the above and taking into consideration the factual matrix the undersigned hereby orders as under: 1. That the order No. ENT/D/18/3645-47 dated 12-11-2018 passed by concerned Electoral Registration Officer is set aside and the name of the appellant Mushtaq Ahmad Bhat S/o Sher Mohd. Bhat shall be included in the electoral roll/voter list of Panchayat Halqa Behota Lower and simultaneously deleted from the Electoral Roll of Panchayat Halqa Upper Behota. Block Marmat, District Doda. 2. That the rejection being improper, therefore, the election process, right from the scrutiny of nominations onwards, for Sarpanch seat for Halqa Panchayat Behota District Doda. shall be taken afresh and various dates, in this regard, shall be notified separately by way of issuance of a fresh notification. (Shaleen Kabra)IAS Election Authority Under J&K Panchayati Raj Act, 1989 (Chief Electoral Officer, J&K) 6. The first argument of learned counsel for the petitioner is that there is no provision of appeal in the J&K Panchayati Raj Act, 1989. This argument does not hold good. Section 6 of the J&K Panchayati Raj Act, 1989 reads as under: “6. (Shaleen Kabra)IAS Election Authority Under J&K Panchayati Raj Act, 1989 (Chief Electoral Officer, J&K) 6. The first argument of learned counsel for the petitioner is that there is no provision of appeal in the J&K Panchayati Raj Act, 1989. This argument does not hold good. Section 6 of the J&K Panchayati Raj Act, 1989 reads as under: “6. Disqualification for membership-(1) A person shall be disqualified to be a member of Halqa Panchayat if he- (a) is not a permanent resident of the State; or (b) is in the employment of the Government or any local body: or (c) is under (twenty-one years) of age; or (d) is of unsound mind and stands so declared by a competent Court; or (e) has been adjudged insolvent by a competent Court, or (f) is a salaried servant of a Halqa Panchayat; or (g) is a Lambardar or Village Chowkidar; or (h) has been dismissed from the service of the Government, a local body or a Halaqa Panchayat; (i) has been convicted of and sentenced for an offence (other than an offence of a political nature) punishable with imprisonment for not less than two years, unless a period of three years, or such less period as the Government may allow in any particular case, has elapsed since his release; provided that this clause shall not apply to an offender who has been released under the provisions of Section 562oftheCodeofCriminal Procedure, Samvat 1989 or under the Jammu and Kashmir Probation of Offenders Act, 1966. (2) Subject to the provisions of sub-section (1), no person shall be qualified to be chosen as a member of Halqa Panchayat unless his name is included in the electoral roll of such Halqa Panchayat; Provided that any person aggrieved by an order under this section shall have a right of appeal to such authority as may be prescribed.” 7. From bare perusal of the proviso of this section, it is evident that a candidate whose nomination paper has been rejected has a statutory right to file appeal before the authority. The said authority has been defined under rule 3 of the J&K Panchayati Raj Act, who is the Chief Electoral Officer, J&K. Therefore, the petitioner was having a statutory right to file appeal before the Chief Electoral Officer. Even otherwise the order has already been implemented. The said authority has been defined under rule 3 of the J&K Panchayati Raj Act, who is the Chief Electoral Officer, J&K. Therefore, the petitioner was having a statutory right to file appeal before the Chief Electoral Officer. Even otherwise the order has already been implemented. In this regard a notification dated 22.11.2018 has been issued by the Chief Electoral Officer, J&K, which reads as under: “Under J&K Panchayati Raj Act, 1989 (Chief Electoral Officer, J&K) “Greater Participation for a Stronger Democracy” Notification JAMMU, DATED THE 22nd NOVEMBER, 2018 Whereas, in term, of the Notification dated 03-11-2018, inter alia, various dates were appointed for the conduct of elections to elect Sarpanchs and Panchs for Halqa Panchayat Behota Lower Block Marmat, Doda, and Whereas, one Mushtaq Ahmad Bhat S/o Sher Mohd. Bhat had also filed his nomination for Sarpanch seat in Halqa Panchayat Behota Lower, Block Marmat, Doda but the same was rejected at the time of scrutiny by concerned Returning Officer; and Whereas, aggrieved of the same, an appeal was filed by him before the Election Authority and the same has been decided in his favour vide order No.CEO/Pyt/2018/722dated22-11-2018, and Whereas, such improper rejection has resulted in vitiation of the election process from the date of scrutiny onwards for Sarpanch seat for the Halqa Panchayat Behota Lower, Block Marmat, Doda; Now, therefore, considering the above, in exercise of powers under Section 36 of J&K Panchayati Raj Act. 1959, read with Rule 8 of the J&K Panchavati Raj Rules, 1996, the Election Authority (Chief Electoral Officer, J&K) hereby notifies and, accordingly, appoints the following dates for the conduct of elections to elect Sarpanhes in respect of Halqa Panchayat Behota Loner, Block Marmat Doda as under: (a) the 24th November, 2018 (Saturday) as the date for the scrutiny of nominations (b) the 26th November, 2018 (Monday) as the last date for withdrawal of candidature. (c) the 1st December, 2018 (Saturday) as the date on which a poll, if necessary, shall be taken from 08:00 am to 02.00 pm (d) the 1st December 2018 (Saturday) as the date of counting, unless notified otherwise (e) the 17the December,2018 (Monday) as the date before which the election shall be completed. (c) the 1st December, 2018 (Saturday) as the date on which a poll, if necessary, shall be taken from 08:00 am to 02.00 pm (d) the 1st December 2018 (Saturday) as the date of counting, unless notified otherwise (e) the 17the December,2018 (Monday) as the date before which the election shall be completed. Further, consequent upon the above, the date on which a poll, if necessary, for all or any of the constituencies of Halqa Panchayat Behota Lower, Block Marmat District Doda, notified vide Notification dated 03.11.2018, shall now be held on 01.12.2018 instead of 29.11.2018. (SaleenKabra)IAS Election Authority Under J&K Panchayati Raj Act, 1989 (Chief Electoral Officer, J&K) 8. The other grounds taken in this writ petition pertain to the disputed question of facts which cannot be adjudicated upon in this petition. Even otherwise once the election process has been started, it cannot be stalled. In view of the above, I find no merit in this petition. In the result, the same is dismissed along with connected applications.