Tassadiq Hussain vs Mohd. Rashid Qureshi & Ors

2. The facts, giving rise to the instant appeal, are as under:

According to the election schedule, the polling was to take place on April 11, 2005 and election process was to be completed on April 15, 2005.

For the reserved seat for resident of Poonch District, three candidates, namely, Mr. Mohd. Rashid Qureshi, i.e., the respondent No. 1 herein, Mr. Tassadaq Hussain, 4 i.e., the appellant herein and one Mr. Imtiyaz Ali Banday filed their nomination papers with the Returning Officer. The respondent No. 1 was the sponsored candidate of National Conference Political Party whereas two other candidates were sponsored by People's Democratic Party. Mr. Imtiyaz Ali Banday did not contest the election and withdrew his candidature on the last date fixed for withdrawal of the nominations. Admittedly, the respondent No. 1 is a resident of Tehsil Mendhar, District Poonch, whereas the appellant is resident of Village Larkoti, Tehsil Budhal, Kotranka, District Rajouri. At the time of scrutiny of nomination papers, the respondent No. 1 raised an objection to the candidature of the appellant before the Returning Officer, stating that the appellant being a resident of District Rajouri was not eligible to contest the election for the seat reserved for a resident of Poonch District and, therefore, his nomination be rejected. The Returning Officer, taking into consideration clarification given by the Election Commission of India vide letter No. 332/JK-LC/2005 5 dated March 30, 2005, rejected the objection raised by the respondent No. 1 and accepted the nomination papers of the appellant. While accepting the nomination papers of the appellant, the Returning Officer recorded reasons and observed that any change/alteration in the boundaries of Poonch District by an administrative or statutory order would not deprive the residents of the erstwhile Poonch District of the right to such reservation as is provided to them under the proviso to sub-Section (3) of Section 50 of the Constitution. Thereafter, the election was held and the appellant got 60 votes of the Members of the Legislative Assembly of the State as against 28 votes cast in favour of the respondent No. 1. Thus, the appellant was declared to have been elected as a member of the Legislative Council by the Returning Officer for the seat reserved for a resident of Poonch District.

3. Being aggrieved by this, the respondent No. 1 filed Election Petition No. 1 of 2005 before the High 6 Court of Jammu and Kashmir and challenged election of the appellant to the Legislative Council held in the year 2005 on the ground that the appellant, being ineligible to contest the election, his election was null and void. The respondent No. 1 further prayed that after declaring the election of the appellant as null and void, he should be declared to have been elected as Member of Legislative Council in place of the appellant.

4. The learned Single Judge took into consideration the historical background, which resulted into creation of Poonch District and Rajouri District, which was available on the official websites of the two Districts. The learned Judge observed that vide order No. 667-C of 1949 dated August 20, 1949 it was decided that the then existing Reasi District comprising Tehsils Reasi and Rampur-Rajouri was to be abolished and a new district comprising Tehsil Rampur-Rajouri and Nowshera to be formed with 7 the name of Rajouri having Head Quarter at Rajouri. The Court noticed that after the notification dated August 20, 1949 District Rajouri stood constituted under Section 5 of the Jammu and Kashmir Land Revenue Act, 1996 (1939 AD) as independent District. The Court also found that vide Order No. 1451-C of 1950 dated December 11, 1950, District Rajouri, for administrative and revenue purposes, was administered by District Administration, headquartered at District Poonch. The Court further noticed that no Government order or notification was brought on the record to show that a district known as District Rajouri-Poonch was ever constituted. The learned Judge further found that the Revenue Department, while issuing SRO 444 dated October 21, 1967, by which District Rajouri was excluded from Poonch-Rajouri District, did not take note of the Government Order No. 667 of 1949 dated August 20, 1949 and, therefore, no fresh notification under Section 5 of the Jammu 8 and Kashmir Land Revenue Act for creation of Rajouri District as an independent District was required, but surprisingly the same was issued again. The learned Judge observed that Rajouri was never part of the District Poonch either before or after the commencement of the Constitution and, therefore, a resident of Rajouri District cannot and could not be in any manner deemed to be a resident of Poonch District. According to the learned Judge, in absence of definition of words "Poonch District"

16. Even historically this Court finds that Rajouri was never part of Poonch District either before or after the commencement of the Constitution. There was no Constitution of Jammu and Kashmir in the year 1949, but what was applicable and prevalent was J&K Constitution Act of SVT 1996 (year equivalent to 1939 AD). Under the said Act Prime Minister was head of the State. The General Department of Prime Minister's Secretariat issued an order No. 667-C of 1949 dated August 20, 1949 mentioning that Reasi District comprising Tehsil Reasi and Rampur- Rajouri be abolished and instead a new District to be known as District Rajouri comprising Tehsils Rampur-Rajouri and Nowshera be formed as a temporary measure with Head Quarters at Rajouri. It may be stated that Tehsil Rampur-Rajouri is the present Tehsil of Rajouri which earlier used to be known and called as Rampur-Rajouri. After 32 publication of above mentioned order dated August 20, 1949, the Government formed and constituted a new District known as District Rajouri with Head Quarters at Rajouri comprising Tehsil Rajouri and reconstituted Tehsil of Nowshera, by issuing an order under Section 5 of the Jammu and Kashmir Land Revenue Act, 1996 (Samvat). Again, an order No. 1451-C of 1950 dated December 11, 1950 was issued mentioning that the Head Quarters of District Magistrate and Wazir Rajouri and Poonch and Superintendent of Police, Rajouri be located at Poonch and that of Assistant Superintendent of Police at Rajouri. A conjoint and meaningful reading of above mentioned notifications/orders makes it abundantly clear that though District Rajouri stood constituted as an independent District, its Head Quarters for District Magistrate and Deputy Commissioner was located at Poonch, which was also the Head Quarters of District Poonch. Thus for administrative and revenue 33 purposes District Rajouri was administrated by District Administration Head Quarters located at District Poonch. This Court finds that under these circumstances, the High Court had recorded a finding that since there was no separate and independent District Administration provided for District Rajouri and District Rajouri as well as District Poonch continued to be administered by joint District Administration from Poonch, both the Districts for the purpose of administration were being referred to as one District, namely, Rajouri- Poonch District. It is pertinent to note that the record does not indicate that any such district known as Rajouri-Poonch District was ever formed by the Administration. The record also shows that this position continued up to the year 1957, when the Jammu and Kashmir Constitution was brought into force with effect from January 26, 1957. What is relevant to notice is that the General Department of the State issued Government Order No. 137-C of 34 1967 dated September 30, 1967 splitting Poonch District into two Districts, i.e., (1) Poonch District comprising Haveli and Mendhar Tehsils with Head Quarters at Poonch and (2) Rajouri District comprising Rajouri and Nowshera Tehsils with Head Quarters at Rajouri, in the interest of revenue and law and order. By the said order Tehsils Rajouri and Nowshera which were excluded from the Poonch District, constituted a separate district known as District Rajouri. It is worthwhile to note that the Revenue Department of the State issued notification SRO 444 dated October 21, 1967 under Section 5 of the Jammu and Kashmir Land Revenue Act, SVT 1996, directing that the territorial limits of Tehsil Rajouri and Nowshera shall be excluded from the existing Poonch-Rajouri District and shall constitute a separate District to be known as District Rajouri. If one reads the above mentioned two orders, a glaring fact, which cannot be ignored, becomes evident is that though no fresh notification 35 under Section 5 of the Jammu and Kashmir Land Revenue Act for creation of the District Rajouri as an independent District was required, yet the same was issued again to emphasis that Tehsil Rajouri and Nowshera excluded from administratively known as Poonch-Rajouri District and constituted into a separate District known as District Rajouri. Though in the above mentioned two orders, this Court finds, a reference to Poonch-Rajouri District, in fact, there was no district formed or constituted, which was known as Poonch-Rajouri District and probably all the confusion has arisen only because of reference of a district known as Poonch-Rajouri District in the above mentioned two orders.

22. For the reasons mentioned above, this Court does not find any substance in the appeal. The conclusion drawn by the High Court in the impugned judgment that the expression "a resident of Poonch District" in the proviso to sub-Section (3) of Section 50 of the Constitution, does not include a resident of Rajouri is just and no ground is made out to interfere with the same in the instant appeal. Therefore, the appeal, which lacks merit, deserves to be dismissed.

23. The appeal, therefore, fails and is dismissed. There shall be no order as to costs.

November 23, 2010.