J.M. Panchal, J. - (1.) This appeal, filed under Section 123 of the Jammu and Kashmir Representation of the People Act, 1957, is directed against judgment dated March 13, 2006, rendered by the learned Single Judge of the High Court of Jammu and Kashmir at Jammu in Election Petition No. 1 of 2005 by which the Election Petition filed by the respondent No. 1, challenging election of the appellant to the Legislative Council of the State Legislature, is allowed and his election is declared void. Further the learned Single Judge has declared that in place of the appellant the respondent No. 1, i.e., Mr. Mohd. Rashid Qureshi, advocate, is proclaimed as elected.
(2.) The facts, giving rise to the instant appeal, are as under: The Constitution of Jammu and Kashmir (the Constitution for short) was implemented on January 26, 1957. Section 50 of the Constitution deals with composition of Legislative Council. Sub-section (3) of Section 50 of the Constitution provides that eleven members of the Legislative Council shall be elected by the members of the Legislative Assembly from amongst persons, who are residents of the Province of Jammu. However, the proviso to the said Sub-section stipulates that at least one member out of eleven members shall be resident of Doda District whereas at least one shall be a resident of Poonch District. The Election Commission of India initiated election process for filling up six vacancies having fallen vacant in the Legislative Council of Jammu and Kashmir including the reserved vacancy for a person resident of Poonch District by a notification dated March 24, 2005, issued under Section 29 of the Jammu and Kashmir Representation of People Act, 1957 (the Act of 1957 for short). Under the notification dated March 30, 2005 it was specified that the last date for filing nominations was March 31, 2005 whereas scrutiny of the nomination papers was to take place on April 2, 2005, which was also the last date for withdrawal of the candidatures. 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, 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 Peoples 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 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 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.;