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JAMMU AND KASHMIR HIGH COURT BENCH AT SRINAGAR
Sanjay Dhar, J.
Abida Afzal – Appellant
Versus
State Election Commission & Ors. – Respondents
Writ Petition (C) No. 2654 of 2022, Civil Miscellaneous No. 6684 of 2022
Decided On : 05-12-2022
Election - Jurisdiction of Election Authority - Jammu and Kashmir Panchayati Raj Act, Section 36 - Summary of Acts and Sections: Section 36 of the Jammu and Kashmir Panchayati Raj Act vests the State Election Commission with the power to issue all necessary directions for the conduct of elections, including the power to declare a poll void and order re-polling. The wide and sweeping powers vested with the Election Authority clearly give jurisdiction to pass all such orders as may be necessary for smooth conduct of the elections, which may definitely include ordering of re-poll on a ground other than the one contemplated in Rule 108 ZI of the Rules. The Court held that the impugned notification ordering re-polling was well within the jurisdiction of the Election Authority. The Court also emphasized that the bar contained in Article 243-O of the Constitution is attracted to the maintainability of the instant petition, as the Election Authority's action did not stall the election process but rather took a step towards its completion.
Fact of the Case:
The petitioner challenged a notification ordering re-polling in a District Development Council (DDC) constituency, arguing that the Election Authority did not have the jurisdiction to declare the earlier poll as void and order re-polling without counting the votes. The petitioner contended that the Election Authority's decision was arbitrary and without authority.
Finding of the Court:
The Court held that the impugned notification ordering re-polling was well within the jurisdiction of the Election Authority. The Court also emphasized that the bar contained in Article 243-O of the Constitution is attracted to the maintainability of the instant petition, as the Election Authority's action did not stall the election process but rather took a step towards its completion.
Issues: The issues revolved around the jurisdiction and authority of the Election Authority to declare a poll void and order re-polling, as well as the maintainability of the writ petition in light of the bar contained in Article 243-O of the Constitution.
Ratio Decidendi: The Court held that the Election Authority had the jurisdiction to order re-polling and that the bar contained in Article 243-O of the Constitution was attracted to the maintainability of the instant petition. The Court emphasized that the Election Authority's action did not stall the election process but rather took a step towards its completion.
Final Decision: The Court dismissed the petition, finding no merit in the petitioner's contentions.
JUDGMENT
Sanjay Dhar, J. - The petitioner has challenged Notification/order No.SEC/ PYT/2022/24 dated 16.11.2022 as also order No.22/SEC/DDC/ 2022 dated 1611.2022, issued by respondent No.2, whereby re-poll of DDC constituency Hajin-A has been scheduled for 5th December, 2022. A further direction has been sought commanding the respondents to hold the counting of votes polled in favour of the candidates to the exclusion of respondent No.4. A direction has also been sought upon the respondents to declare the result of DDC constituency Hajin-A on the basis of already held polling to the exclusion of respondent No.4.
2. The facts emanating from the pleadings of the parties reveal that respondent No.1 had issued a notification on 29th October, 2020, for conduct of General Elections to the District Development Councils, including for the District Development Constituency Hajin-A. While the results of the elections relating to 13 District Development Constituencies out of 14 Constituencies of District Bandipora, were declared, the result of DDC Constituency Hajin-A was withheld. This was done for the reason that the nomination form of one of the candidates of the said constituency, Mst. Shazia, respondent No.4 herein was found to have been improperly accepted, as it was revealed that she is not a citizen of India.
3. It appears that as per order No.06/SEC/DDC/2021 dated 05.03.2021, issued by respondent No.1, polling held to the DDC Constituency Hajin-A was declared as void and the candidature of respondent No.4 was declared as void ab initio. It was also provided in the said order that re-poll in the DDC Constituency Hajin-A shall be conducting after redrawing the list of contesting candidates after dropping the name of respondent No.4 herein. The said order came to be challenged by the petitioner by way of a writ petition bearing WP(C) No.83/2021 before this Court. Notice of the writ petition was issued to the respondents but no interim order has been passed in the said writ petition, which is stated to be pending before the Court. In the meantime, respondent No.1 has issued the impugned Notification ordering re-polling in DDC Constituency Hajin-A, on 5th December, 2022. It is this Notification which is under challenge in the present writ petition.
4. It has been contended by the petitioner that improper acceptance of nomination paper of one of the candidates and her disqualification cannot vitiate the whole election and the order of re-poll in the entire DDC constituency is not in accordance with law. It has been further contended that respondent No.1 does not have any authority to direct re-poll in a DDC constituency and, as such, the impugned action is without jurisdiction. It is also contended that re-poll can be directed only on the grounds mentioned in Rule 108-ZI of the Jammu and Kashmir Panchayati Raj Rules (hereinafter referred to as the Rules) and on no other ground. It is further contended that before declaring the polling held pursuant to earlier Notification dated 23.11.2020 as void, it was incumbent upon the official respondents to first hold counting of votes for arriving at a conclusion that improper acceptance of nomination of respondent No.4 would have materially affected the result of the election. Since the said exercise has not been undertaken, as such, the order of declaring election as void and undertaking re-poll is legally unsustainable.
5. I have heard learned counsel for the parties and perused the pleadings of the parties.
6. Learned counsel appearing for the petitioner has vehemently contended that respondent No.1 did not have jurisdiction and authority to direct re-polling as there is no provision for the same either under the Jammu and Kashmir Panchayati Raj Act or the Rules framed thereunder. He has also contended that without undertaking exercise of counting of votes, it was not possible for the Election Authority to come to a conclusion that improper acceptance of nomination of respondent No.4 would have
A writ petition is not maintainable to challenge an order of rejection of nomination paper by the Returning Officer/competent authority having regard to the provisions in Article 243-O of the Constit....
Interference in electoral matters after results are declared is barred by Articles 243-O and 243-ZG; the appropriate recourse is through an election petition.
Election disputes must be addressed through statutory remedies, and writ petitions are not maintainable when an alternative remedy exists under the relevant election laws.
Point of law: Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction
The 'power of judicial review' is specially conferred on the Constitutional Courts, i.e. the High Courts and the Supreme Court, under Articles 226 and 32 of the Constitution, respectively.
The validity of the elections must be tested in election petitions under Section 176(5) of the 1994 Act.
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