In the J & K Assembly elections in 1952 the following persons stood for election to the legislative Assembly from the Samba constituency.™-

Sagara Singh, appellant, Dhian Singh, Des Raj, Vir Chand, Duradas, Mangat Ram, Ramdas Shanta Bharati, Fateh Mohd, and Chajju Ram respondent.

These persons were validly nominated, but on 5-2-62, the date of scrutiny held by the returning officer Th. Sher Singh Tehsildar the nomination papers of Desraj, Vir Chand, Durgadas and Mangat Ram were rejected and the nomination papers of others were accepted. Poll in the constituency took place on 24-2-62 and the counting was held on 27-2-62. The appellant before us was declared as the properly returned candidate to this constituency. Against this declaration of the appellant as the properly returned candidate from this constituency an election petition was presented by the respondent to the Election Commission. A Notification No. 82/4/J&K/62 dated 25th May 1962 was ifsued by the Election Commission appointing Shri Mohan Kishen Tikoo Addl. District and Sessions Judge Jammu for the trial of the petition. This gentleman was transferred from this job and consequently he resigned from this office also. Subsequently another Notification 82/4/J&K/62 dated 16th July 19b2 was issued by the Election Commission wherein it was stated.

"And whereas the said Shri Mohan Krishan Tikoo has resigned from the membership of the said Tribunal and a vacancy has accordingly occurred in the office of the Member of the Tribunal :

Now, therefore, in exercise of the powers conferred by sub-S. (4) of S. 94 of the J & K Representation of the Peoples Act, 1957, the Election Commission hereby appoints Shri Hari Krishan Sharma, Addl. District & Sessions Judge Jammu to fill the said vacancy."

So. according to this Notification Mr Hari Krishan Sharma the then Addl. District & Sessions Judge was appointed as the Election Tribunal in the vacancy caused by the resignation of Mr. Mohan Krishan Tikoo When Mr. Hari Krishan Sharma became the District & Sessions Jammu, by means of a letter from the Secretary Election Commission No. 82/2/J&K/62/6898U dated 28-1262 Mr. Hari Krishan Sbarma was to continue to exercise the powers of the Election Tribunal to hear this petition.

The main ground taken in the election petition was that the nomination papers of Desraj, Vir Chand, Durgadas and Mangat Ram had been improperly rejected by the returning officer and therefore the election of the appellant as the properly returned candidate from the Samba constituency was void. The respondent in the petition, that is the appellant before us, put in his written objections to the petition wherein amongst other things he took the following pleas :-

1) the petition was not in accordance with law.

2) All the necessary parties had not been joined in the election petition.

3) The application was not presented in accordance with law.

4) the petitioner was not a voter

5) The Election Tribunal was not properly constituted.

6) The security deposit had not been paid in accordance with law.

And

7) The signatures and the verification of the petitioner were not in accordance with law.

Primarily on 10-10-62 nine issues were framed and subsequently on 29-1-63 two more issues were added, thus making the total number of issues 11. There is some overlapping of issues. For instance issue No. 2 reads as under:-

"Whether the Election Tribunal is not properly constituted and thus not competent to hear the petition? OPR

Issue No. 10 in other words repeats the same subject and it reads as under: -

Whether the present Tribunal is not properly constituted according to law and it has got no jurisdiction to try this petition? OPR

Issue No. 11 is:-

Whether the Tribunal is not competent to go into the matter whether the appointment of the Tribunal is according to law ? OPP

Before the Tribunal the petitioner produced the following witnesses: - Durga Dass, Dilwar Singh, Des Raj, Dhyan Singh, Ram Nath and appeared as his own witness.

The appel