Tassadiq Hussain Vs Mohd.
Rashid Qureshi & Ors.
JUDGMENT
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. 1of 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 asunder: 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 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 note ligible 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 bythe 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.
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 Now shera to be formed withthe 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. 667of 1949 dated August 20, 1949 and,
therefore, no fresh notification under Section 5 of the Jammu 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" in the Constitution the said expression has to be understood
in its natural and ordinary or popular meaning. The learned Judge observed that
the ordinary and popular meaning of the expression" Poonch District" read
with the provisions of Revenue Department Re-organisation Act, 2008,would mean
the revenue - administrative district and placed reliance on the decision of
this Court in Maheshwari Fish Seed Farm vs. T.N. Electricity Board and another
[(2004) 4 SCC 705] and Dr. Ajay Pradhan vs. State of Madhya Pradesh and others
[AIR 1988 SC 1875], for coming to the above mentioned conclusion. According to
the learned Judge, the language of sub-Section (3) of Section 50 of the Constitution
is absolutely clear and unambiguous and, therefore, the reservation provided
thereby for a resident of Poonch District, which should not be construed to
mean to include a resident or Rajouri District. In view of the above- referred
conclusions, the learned Judge allowed the Election Petition, filed by the
respondent No. 1 and election of the appellant to the Legislative Council of the
State Legislature is declared to be void whereas in his place the respondent
No. 1 is declared as elected by judgment dated March 13, 2006, which has given
rise to the instant appeal.
5.
This
Court has heard the learned counsel for the parties at great length and in
detail. This Court has also considered the documents forming part of the appeal.
6.
Dr.
Rajeev Dhawan, learned senior advocate for the appellant, contended that the view
expressed by the Election Commissioner in communication dated March 30, 2005 was
rightly taken into consideration by the Returning Officer while accepting the
nomination papers of the appellant and rejecting the objection raised by the
respondent No. 1. It was contended that as view expressed by the Election
Commission has binding effect, in view of Section 138 of the Constitution, the
election of the appellant could not have been declared as void. The learned counsel
emphasized that Poonch including Rajouri are border Districts next to the Actual
Line of Control with Pakistan and are known as hardship districts and,
therefore, the learned Single Judge of the High Court committed an error in
holding that Rajouri was not part of Poonch District. It was emphasized by the
learned counsel for the appellant that at the time of making the Constitution
under Order dated December 11,1950, Poonch was administratively identified as including
Rajouri and, therefore, the finding, that a resident of Rajouri is not entitled
to contest the election as Member of the Legislative Council for the reserved
seat of Poonch District, is erroneous and deserves to be set aside. According
to the learned counsel for the appellant, interpretation of a constitutional
provision cannot depend on what Government or Revenue Department of the Government
thinks and if this is permitted, the reservation contemplated by proviso to
sub-Section(3) of Section 50 of the Constitution would go on changing from
day-to-day and, therefore, it should have been held that the appellant, who is
resident of Rajouri District, was entitled to contest election for the seat reserved
for a resident of Poonch District. The learned counsel submitted that if the interpretation
placed by the learned Single Judge of the High Court were to be accepted, the
same would adversely affect a resident of Tehsil Ladakh andTehsil Kargil for
whom reservation is made under the proviso to sub-Section (2) of Section 50 of
the Constitution as well as a resident of Doda District for whom reservation is
made under sub-Section (3)of Section 50 of the Constitution and, therefore, the
same should not have been adopted by the High Court. According to the learned
counsel, the onus was on the respondent No. 1 to prove by leading evidence that
Rajouri did not form part of Poonch District and the respondent No. 1, having
failed to discharge the onus, the Election Petition filed by him should have
been dismissed. What was maintained was that the Constitution must be given an
expansive interpretation because it is the Grand norm and the document from
which the other enactments flow and as intent of the framers of the
Constitution was to provide reservation to a resident of Poonch District having
geographical area envisaged, the Election Petition challenging the election of the
appellant should have been dismissed by the High Court. The learned counsel
asserted that the expression "Poonch District “includes Rajouri District
and, therefore, without any amendment in the Constitution, as contemplated by
Section 147 of the Constitution, the election of the appellant could not have
been voided on the ground that the expression "Poonch District" does not
include "Rajouri District". The learned counsel argued that no
revenue authority can change the Constitution or its intent and, therefore, the
reliance placed by the learned Single Judge of the High Court on the
notification dated October 21,1967, issued under the Jammu and Kashmir Land Revenue
Act was misplaced. The learned counsel stressed that the judgment impugned is
erroneous and deserves to be set aside. In support of above-mentioned
contentions, the learned counsel relied on the decisions of this Court in (1)
State of U.P. and others vs. Pradhan Sangh Kshettra Samiti and others [1995
Supp. (2) SCC 305], (2) K. Venkataramiah vs. A. Seetharama Reddy and others
[1964 (2) SCR 35], (3) Jeet Mohinder Singh vs. Harminder Singh Jassi [(1999) 9
SCC 386], (4) Supreme Court Advocates-on-Record Association and others vs.
Union of India [(1993) 4 SCC 441], (5) Printers House Pvt. Ltd. Vs. Mst
Saiyadan (deceased) by LRs. And others [(1994) 2 SCC 133] and (6) Narender
Singh vs. Mala Ram and another [(1999) 8 SCC 198].
7.
7.
Mr. Ranjit Kumar, learned senior advocate for the respondent No. 1, contended
that the phrase "resident of Poonch District", appearing in the proviso
to sub-Section (3) of Section 50 of the Constitution, should be construed to
mean its ordinary meaning, which can only mean the geographical area of
District of Poonch as it existed on the date of notification of the elections
in the year 2005. According to the learned counsel, the ordinary meaning of the
word "District" is to be found in J&K Revenue Department
Reorganisation Act, 2008, which means a "Revenue District" whereas Articles
243A and 243P(b) of the Constitution of India define the word
"Districts" to mean as District in the State and, therefore, the judgment
impugned should be upheld by this Court. The learned counsel also pointed out
the Legal Glossary published by the Government of India which defines the word
"District" as portion of territory marked off or defined for some
special administrative or official purpose and includes a division or
sub-section of a province or presidency. The learned counsel emphasized that a
word in the Constitution should not be given historical meaning as the
Constitution is always dynamic, organic living document which goes on changing
to meet the needs of the people as well as the exigencies of the time. The
learned counsel stressed that the intention of the Legislature should be primarily
gathered from the language used and while ascertaining the intention, attention
should be paid to what has been said and not to what has not been said. According
to Mr. Ranjit Kumar, learned counsel for the respondent No. 1, the words of the
statute should be first understood in their natural ordinary or popular sense and
phrases and sentences should be construed according to their grammatical
meaning unless such a construction leads to some absurdity or unless there is
something in the context or in the object of the statute to suggest to the
contrary. It was argued that the natural and ordinary meaning of the words used
by the Legislature should not be departed from unless it can be shown that the
legal context in which the words are used, requires a different meaning and a
statute should be read in the ordinary and primary sense without any omission or
addition. The learned counsel contended that the language employed in the
proviso to sub-Section (3) of Section 50 of the Constitution is precise, plain,
categorical as well as unambiguous and also expresses the intention of the
framers of the Constitution, which is that the expression "Poonch District"
does not include District Rajouri. The learned counsel argued that different
principles of interpretations as suggested by the learned counsel for the
appellant, for understanding as to what was in the mind of the framers of the
Constitution while enacting the proviso to sub-Section (3) of Section 50of the
Constitution need not be gone into, more particularly, when the ordinary
meaning of the phrase "Resident of Poonch District" is clear and unambiguous.
It was submitted that even otherwise Rajouri District was not even historically
a part of the Poonch District and merely because the Head Quarters of DM/SSP of
both Rajouri and Poonch Districts were directed to be located at Poonch, vide
order dated December 11, 1950,Poonch and Rajouri cannot be regarded as one District.
It was submitted that the District Rajouri was a part of District Bhimber in
1904 (A.D.) and thereafter it was bifurcated from District Bhimber and was
affiliated to Reasi District, but in the year1949, vide order No. 667-C of 1949
dated August20, 1949, District Reasi comprising Tehsils Rampur-Rajouri and
Reasi, was abolished and anew District known as District Rajouri comprising Tehsils
Rampur-Rajouri and Nowshera was formed, whereas pursuant to Cabinet Order No.
667-C,mentioned above, issued in exercise of powers under Section 5 of the Land
Revenue Act, 1996(SVT), District Rajouri was formed, which was constituted comprising
Tehsil Rajouri Tehsil Now shera. The submission, which was placed by the
learned counsel for the respondent No. 1 for consideration of the Court, was
that burden of proof was not on the respondent No. 1 to prove that District
Poonch did not include District Rajouri because both the parties had accepted, as
mentioned in the impugned order of the High Court, that it was purely a
question of law to be decided by the Court. According to the learned counsel
for the respondent No. 1, the appellant was not precluded to bring evidence on
record to establish that a resident of Rajouri should be called as Resident of Poonch
District. The learned counsel emphasized that no material having been produced
by the appellant to show that District Poonch includes District Rajouri, the
ordinary meaning of the expression "Resident of Poonch District" as
appearing in the proviso to sub-Section (3) of Section 50 of the Constitution,
should be adopted by the Court. What was maintained was that though Election
Commission of India has a duty to superintend, direct and control elections,
there is no power available to Election Commission of India to define
boundaries of the constituencies or territorial limits as a result of which the
view expressed by the Election Commission in its communication dated March 30,
2005 that a resident of Rajouri District would be entitled to contest election
on a seat reserved for a resident of District Poonch, has no value at all. The
learned counsel referred to the decision of this Court in Laxmi Kant Bajpai vs.
Haji Yaqoob and others [(2010) 4 SCC 81], to buttress his arguments that
Election Commission of India has no power to change the boundaries or area or
extend the boundaries of any constituency. It was argued by the learned counsel
for the respondent No. 1 that if the framers of the Constitution had intended
to give representation by way of reservation to the residents of Poonch as well
as Rajouri for all time to come, the framers of the Constitution would have
defined the territories of District Poonch as well, but, it is an admitted
position that the territories of District Poonch were never defined by the
Government and, therefore, in the absence of any such definition, "Poonch District"
will have to be given its natural, ordinary or popular meaning. It was pointed
out that Section 5 of the Jammu and Kashmir Representation of People Act provides
for delimitation of constituencies, i.e., MLC constituency and in case the
intention of the Government was to provide special status to the residents of
Rajouri, there could have been an appropriate delimitation of constituencies of
MLC also and in absence of such a delimitation for MLC the historical meaning
should not be assigned while interpreting the provisions of the Constitution.
8.
In
support of the above mentioned submissions, the learned counsel for the
respondent No. 1 has placed reliance on the decision of this Court in Maheshwari
Fish Seed Fram vs. T.N. Electricity Board and another [(2004) 4 SCC 705].
9.
The
learned counsel for the State of Jammu and Kashmir argued that the contention
of the learned counsel for the appellant that the appellant was entitled to
contest election for the reserved seat of District Poonch on the ground that at
the time of commencement of the Constitution, Rajouri was part of District Poonch
is misconceived and incorrect. It was submitted that Section 5 of the Jammu and
Kashmir Land Revenue Act, 1996 Svt. (1939 AD) inter alia provides that the
Government may by notification vary the limits of Tehsils, Districts and
Provinces under which the territories administered by each are defined and may
also by notification alter the number of those Tehsils, Districts and Provinces.
What was pleaded was that in exercise of powers under Section 5 of the said Act,
notifications had been issued from time to time by the Government for
demarcating the areas of the Districts. According to the learned counsel, the Districts
or Tehsils for any purposes means Districts or Tehsils, as the case may be, as
notified by the Government from time to time under Section5 of the said Act. It
was maintained that in the year1949 the General Department of Prime Minister's Secretariat
had issued an order bearing No. 667-Cof 1949 whereby District Rajouri was
constituted comprising Tehsil Rampur-Rajouri and Nowshera with its Head
Quarters at Rajouri and, therefore, it is wrong to contend that District Poonch,
as mentioned in the proviso to sub-Section (3) of Section 50 of the
Constitution, includes Rajouri. The learned counsel for the State contended
that as on the date of the election in the instant case, District Rajouri was a
separate District and distinct from Poonch District and, therefore, the benefit
of the reserved seat that is provided under Section50(3) of the Constitution
would not be available to the residents of District Rajouri. The learned counsel
stressed that the High Court by its impugned judgment has correctly appreciated
the facts as well as rightly interpreted the law and, therefore, the said judgment
should not be interfered with by this Court.
10.
This
Court has heard learned counsel for the parties at length and in great detail.
This Court has also taken into consideration the documents forming part of the
appeal as well as relevant provisions of law to which attention of the Court
was drawn by the learned counsel for the parties and the authorities cited at
the Bar.
11.
Before
proceeding to consider the submissions advanced at the Bar it would be relevant
to note that the learned counsel for the appellant conceded that the appellant
was not claiming recrimination. It means that the appellant has given up his
prayer to declare that the respondent NO. 1 was not qualified to be elected as
member of the Legislative Council. The concession made by the learned counsel
for the appellant was in view of the fact that this point was not raised by the
appellant herein before the High Court.
12.
Another
relevant fact, which requires to be noticed, is that the learned counsel for
the appellant agreed that the Poonch District stands divided for the purpose of
law and order, revenue and for Assembly constituencies. However, he emphasized
that for the purpose of the Legislative Council, there was no division of Poonch
District. This Court finds that the latter argument, if accepted, would lead to
absurd results. It may be mentioned that it was averred by the respondent No. 1
in his petition before the High Court that right from the elections in the year
1967 till date no resident of District Rajouri was elected as a member of
Legislative Council for the seat reserved for residents of District Poonch. In
fact, an averment was made that the respondent No. 3 herein, i.e., the
Returning Officer in 2005 elections was also the Returning Officer in1999
elections and he had rejected the nomination paper of a resident of Rajouri as
being not eligible. This Court finds that that the Returning Officer was given
a reward within one week of rejection of nomination papers of a resident of
Rajouri District and the extension of one year in service was granted to him. Therefore,
this Court finds some force in the argument advanced by the learned counsel for
the respondent No. 1 and learned counsel for the State Government that the Government
and Election Commission had always interpreted the word "Poonch
District" under the proviso to Section50(3) of the Constitution to mean as
Revenue District of Poonch and Rajouri was not considered to be part of
District Poonch. This Court finds that the above-stated averments could not be
demonstrated to be untrue. The past history does not support the case of the
appellant that though for all practical purposes including for the purposeof
Assembly election, District Poonch was divided, it stood integrated for the
purpose of election to Legislative Council.
13.
In
view of the rival submissions advanced at the Bar, the question which arises
for determination of the Court is whether the expression "Poonch District"
used in the proviso to sub-Section (3) of Section 50 of the Constitution of
Jammu and Kashmir, 1957, reserving a seat in the Legislative Council for the
resident of Poonch District means Poonch District as it existed on March 24,
2005 when the election notification was published or it includes Rajouri also. Another
question which arises for consideration by the Court is whether the District
Rajouri was ever constituted and notified under the law as a part of Poonch
District prior to or on the date of commencement of the Constitution of Jammu
and Kashmir, 1957.
14.
It
is well settled that the words of a statute should be first understood in their
natural, ordinary or popular sense and phrases and sentences should be
construed according to their grammatical meaning, unless that leads to some
absurdity or unless there is something in the context, or in the object of the statute
to suggest the contrary. If the language used has a natural meaning, normally
the Court cannot depart from that meaning, unless reading the statute as a
whole, the context directs the Court not to do so. In the construction of the statutes
their words are normally interpreted in their ordinary grammatical sense. Of
course, the context in which they occur and the object of the statute has to be
kept in mind while adopting ordinary grammatical sense of the word. It is often
said that the golden rule is that the words of a statute must prima facie be
given their ordinary meaning. Parliament should prima facie be credited with meaning
what is said in an Act of Parliament or Constitution. The drafting of statutes,
so important to a people who hope to live under the rule of law, will never be
satisfactory unless the Courts seek, whenever possible, to apply the golden
rule of construction, that is to read the statutory language grammatically and
terminologically in the ordinary and primary sense, which it bears in its
context without omission or addition. Of course, Parliament should also be
credited with good sense that when such an approach produces injustice, absurdity,
contradiction or stultification of statutory objective the language may be
modified sufficiently to avoid such disadvantage.
15.
If
the expression "Poonch District", appearing in the proviso to
sub-Section (3) of Section 50 of the Constitution, is interpreted in its
ordinary and grammatical meaning, it means District Poonch as was constituted at
the time when election notification was published. If an ordinary meaning of
the expression "Poonch District" is accepted, it would mean the
geographical area of District Poonch as it existed on the date of notification issued
for holding elections in the year 2005. The word `resident of Poonch District'
in its ordinary sense would mean a resident of Poonch District and resident of
Rajouri cannot be regarded as resident of Poonch District. If the framers of
the Constitution had intended to give representation by reservation to the
residents of Poonch as well as of Rajouri, nothing prevented them from defining
the territories of District Poonch as inclusive of Rajouri. In the absence of
such definition, the expression "Poonch District" must be understood in
its natural, ordinary or popular meaning. It is an admitted position that as
per the definition of the term "District" mentioned in the provisions
of Revenue Department Reorganization Act, 2008, the word "District"
means a "Revenue District" and if this interpretation is adopted, it
becomes at once clear that the expression "District Poonch" appearing
in the proviso to sub-Section (3) of Section 50 of the Constitution, does not
include Rajouri.
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 publication of above mentioned order dated
August20, 1949, the Government formed and constituted a new District known as
District Rajouri with Head Quarters at Rajouri comprising Tehsil Rajouri
andreconstituted 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 Poonchand 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 purposes
District Rajouri was administrated by District Administration Head Quarters
located atDistrict 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 of1967 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 Rajouriand Nowshera which were excluded from the Poonch District,
constituted a separate district known as District Rajouri. It is worthwhile to
notethat 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 fromthe 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 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.
17.
The
contention advanced by the learned counsel for the appellant that if the
expression "Resident of District Poonch", appearing in the proviso to
sub- Section (3) of Section 50 of the Constitution, is interpreted to mean a
resident of District Poonch and does not include resident of Rajouri, would have
adverse effect on the interpretation to be put to the proviso to sub-Section
(2) of Section 50 of the Constitution, in which reference is made to Kargil and
Leh, is found by this Court to be an argument in terrorem and cannot be
accepted.
18.
The
argument that the interpretation canvassed by the respondent No. 1, if accepted
by the Court, would have effect on the interpretation of the proviso to
sub-Section (2) of Section 50 of the Constitution, is no ground to place an
incorrect interpretation on the proviso to sub-Section (3) of Section 50 of the
Constitution. In Indian Overseas Bank vs. I.O.B. Staff Canteen Workers' Union
and another [2004) 4 SCC 245], the contractor, who was running canteen, was
removed and the Indian Overseas Bank (`I.O.B.' for short) agreed for floating a
cooperative society to run the canteen. The Central Office of I.O.B. agreed to
provide all infrastructural facilities. The staff required was employed by
promoters, who were administering the canteen. The canteen was successfully
being run by the Central Office from the amounts realized from day-to-day
receipts. However, the canteen was not able to meet its financial requirements
and was closed. Consequently the canteen workers were thrown out of employment.
At the instance of the workers' union, Government of India made two references
to the Industrial Tribunal. Meanwhile, Central Office made arrangement with a
third party for running the canteen on contractual basis. Aggrieved by this,
the workers filed a complaint under Section 33-A of the Industrial Disputes
Act. The Tribunal held that the employees of the canteen were to be treated as
workmen of IOB and entitled to same status and facilities. The Tribunal
alsoallowed the claim made in the complaint. On writ petitions filed by the
IOB, a single Judge of the High Court set aside the Award of the Tribunal,
which was subsequently restored by the Division Bench of the High Court. Before
this Court the IOB expressed an apprehension that if the claim of the canteen
workers was upheld, the appellant Bank would also have to face similar claims
from every employee of the canteens run everywhere. Negativing the said
argument this Court held that such an argument in terrorem cannot deprive the workers
of such status if they are entitled to such status.
19.
It
is significant to note that a query had been made to the Election Commission of
India as to whether the benefit of reservation under Section 50(3) of the Constitution
of Jammu and Kashmir can be given to a resident of Rajouri. To this, the Election
Commission of India had responded vide communication dated March 30, 2005
clarifying that the Poonch District referred to in Section 50(3) of the
Constitution of Jammu and Kashmir, would include District Rajouri, which was a
part of undivided Poonch District at the time of commencement of the Jammu and
Kashmir State. It is argued on behalf of learned counsel for the appellant that
under Section 138 of the Constitution of Jammu and Kashmir, Election Commission
of India has power to superintend and control elections held in the State of
Jammu and Kashmir and, therefore, the view taken by the Election Commission of
India in its communication dated March 30, 2005 is binding and should be accepted
by this Court. It is true that under Section138 of the Constitution of Jammu
and Kashmir, the superintendence, direction and control of elections to either
House of the State Legislature held under the Constitution vest in the Election
Commission of India. However, in exercise of powers under Section138 of the
Constitution, the Election Commission of India cannot define boundaries of the
constituencies or territorial limits either of State Legislature or of Legislative
Council. After analyzing the different provisions of the Constitution of India
and role expected to be played by the Election Commission of India, this Court
in Laxmi Kant Bajpai vs. Haji Yaqoob and others (supra), has ruled that the Election
Commission of India has no power to change the boundaries or areas or extend
the boundaries or areas of any constituency. May be, the view taken by the
Election Commission of India can be taken into consideration by the Court of
Law while interpreting the provisions of proviso to sub-Section (3) of Section
50 of the Constitution. However, the power to superintend, direct and control
elections does not make the clarification binding either on the State
Government or the persons contesting the elections and voters. It is certainly
not binding on this Court. Having taken into consideration the view expressed
by the Election Commission of India in its communication dated March 30, 2005,
this Court finds it difficult to agree with the view expressed therein. The clarification
issued by the Election Commission of India is not only contrary to historical
background of the two districts concerned, but is also plainly against the
well-settled principles of interpretation of statute.
20.
The
last plea that the burden to prove that the expression "Resident of Poonch
District" does not include a resident of Rajouri is on the respondent No.
1, who has filed petition challenging the election of the appellant as a Member
of the Legislative Council and as the said burden was not discharged, the
petition should have been dismissed, has no substance at all.
21.
A
glance at the impugned order makes it evident that both the parties had
accepted before the High Court that this was purely a legal issue to be decided
on the interpretation of the provisions of the Constitution. In such
circumstances question of burden of proof never arose before the High Court. This
Court finds that it was the specific case of the appellant that the expression
"a resident of District Poonch" includes a resident of District
Rajouri and, therefore, the appellant, if advised, could have brought the
evidence on record to substantiate the said plea. The fact remains that no
material was brought on record of the case by the appellant to indicate, even
remotely, that a resident of Rajouri is called or known as resident of Poonch
District for the purposes of the proviso to sub-Section (3) of Section 50 of the
Constitution. Under the circumstances, this Court is of the view that the High
Court was justified in not dismissing the petition filed by the respondent No.
1, questioning the election of the appellant as a Member of the Legislative Council
on the ground that the respondent No. 1 had failed to discharge the burden of
proof.
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.
.....................................J.[J.M.
Panchal]
.....................................J.[Gyan
Sudha Mishra]
New
Delhi;
November
23, 2010.
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