- (1.) This is an appeal from the judgment of the Jammu & Kashmir High Court dismissing the election petition which had been filed by the appellant challenging the election of respondent No. 1 from the Chhamb constituency to the legislative assembly of the State.
(2.) The appellant was a voter in the Chhamb assembly constituency during the last general election held in 1967. Six candidates contested the election. There were originally 31 polling stations in that constituency, On the representation of the various political parties the number of polling stations was raised to 35. This was done on February 14, 1967. There were further representations and the number of the polling stations was raised to 39 adding four such stations This was done on February 18, 1967 which was only three days before the polling was to take place. The polling took place on February 2, 1967. The counting of the , votes in respect of polling station Nos. 1 to 35 was done on Feb. 26, 1967 and of polling stations Nos. 36 to 39, on March 1, 1967. The result was declared immediately afterwards. Respondent No. 1 was found to have secured 1139 votes more than his nearest rival respondent No. 2. The other candidates secured far less votes. In April 1967 the appellant filed an election petition. An Election Tribunal consisting of Shri Ram Saroop, District & Sessions Judge, Jammu was constituted for the trial of the petition. All the respondents were served but only respondent No. 1 appeared and filed his written statement. The Tribunal was later on abolished by a statute enacted by the State Legislature and the proceedings were transferred to the High Court on September 16, 1967. The only material issues were : "(1) Whether the creation of four new polling booths, Nos. 36, 37, 38 & 39 on 19-2-67 only two days before the polling on 21-2-67 was ulduly late; whether it was illegal without having been with prior approval of the Election Commission; and whether it has materially affected the result of the election. (2) Whether the voters residing in Baruta, Tehsil .Samba, Siakalen Tehsil Ranbir Strength Pura and Kirpalpur Tehsil Jammu were illegally and improperly registered as electors from Chhamb Constituency, and whether the addition has materially prejudiced the result of the election." Before the High Court the controversy under the first issue was confined to the four new polling stations. The case as laid in the election petition was that these polling stations i.e. Nos. 36 to 39 had been created in complete disregard of the statutory provisions of the Jammu and Kashmir Representation of peoples Act, 1957, hereinafter tailed the 'Act' and the relevant Rules. It was alleged that the Returning Officer had, with the previous approval of the Election Commission, originally provided 31 polling stations on 3-1-67 according to the patwar circles where the refugees were entered as electOrs. As the number of electors in some of the polling stations was more than 1,000 and respondent No. 2 made a representation that more polling stations should be provided to reduce the number of electors for such polling station, four more such stations were provided on February 14, 1967. These polling stations were situated in Chhamb area itself. Some political parties represented that the polling tations should be provided for the Chhamb refugees in the area where they had been settled in camps. This request was not acceded to by the Election Commission. On February 19, 1967 the Returning Officer, without the previous approval of the Election Commission and without giving proper publicity or intimation to the concerned electors and candidates, provided four more polling stations at (i) Barota in Samba tehsil. (ii) Sian Kalen I & II in R. S. pura and (iv) Kirpal Pur in Jammu tehsil. It was alleged that the distribution of the electors in the matter of polling with regard to the aforesaid stations was so confusing that the electors did not know where to cast their votes. As a result of this confusion more than 2,000 electors were prevented from casting their votes. Detailed illustrations were given in sub-para (i) of para 4 of the Election petition of the manner in which the confusion was caused among the electOrs. It was further stated that previous to the counting of votes in the newly created polling stations res-pondent No. 2 was leading by a margin of 781 votes. The Returning Officer did not declare the result but insisted on counting the votes cast at four newly created polling stations which should not have been counted at all as the casting of those votes was altogether illegal.
(3.) In the written statement which was filed by respondent No. 1 it was denied that the action ot the Officers concerned in creating the four polling stations was illegal or in contravention of the provisions of the Act or the Rules. It was pointed out that all the contesting candidates had made their arrangement in respect of polling station Nos. 36 to 39 well before the polling took place and no prejudice had been caused to any of the contesting candidates. The candidates were represented by their polling agents at these stations and no objection had been raised either by any contesting candidate or his agent to votes being received at the four polling stations in question. The electors had also been fully informed and the arrangements which had been made by the authorities were in their interest. By way of additional plea, it was state'd that on account of Indo-Pakistan conflict in the Chhamb area in 1965, the persons residing there had been uprooted in large numbers and had been temporarily accommodated in camps. After the cessation of the hostilities steps were taken for their rehabilita-tion but persons from forward areas could not be rehabilitated like others for various reasons. They were distributed in the newly created camps in Samba, R.S. Pura, Jammu and Htranagar tehsil. These areas were far from Chhamb area and it was found highly impractical and difficult for these persons to go to that area to cast their votes. It was to meet such a situation and the repeated demands of the electors and the contesting candidates that the aforesaid polling stations were established.;