ABDUL GANI NAMTHALI Vs. GULAM MOHAMMAD PARAY

JUDGEMENT

(1.) This is an appeal from a judgment and order of the High Court of Jammu and Kashmir setting aside the election of the appellant, Abdul Gani Namthali, to the Jammu and Kashmir Legislative Assembly from Khan Saheb Assembly constituency in the general election of 1967 on the ground that the nomination paper of the election petitioner Gulam Mohammad Paray was rejected improperly with the result that the election of the appellant became void.

(2.) The facts relevant for the disposal of this appeal are as follows. The general elections for the Jammu and Kashmir Legislative Assembly were ordered to be held in February 1967. The voters of Khan Saheb Assembly constituency were called upon to elect a member for the same under Section 48 of the Jammu and Kashmir Representation of the People Act, 1967 (hereinafter referred to as the Act). In compliance with the public notices issued by the concerned authorities three persons filed nomination papers, namely, the petitioner, the appellant herein and one Razi Gulam Butt who figures as respondent No. 2 in the election petition. The nomination papers of the three candidates were taken up for scrutiny by the Returning Officer of the Assembly Constituency mentioned. He accepted the nomination papers of the appellant alone as valid and rejected those of the election petitioner and of the respondent No. 2 in the petition, No point is now made about the rejection of the nomination paper of the second respondent. As regards the election petitioner, an objection was raised by the appellant to the effect that he held a subsisting contract for execution of the work with the Government of Jammu & Kashmir at the relevant time and this disqualified him from standing as a candidate Under Section 24(d) of the Act. The appellant produced a certificate from the Block Development Officer, Bearwho, Ex RW 1/3 to show that the election petitioner had still in his hand certain work for execution under the State Government. On the basis of this certificate the Returning Officer rejected the three nomination papers of the petitioner In the election petition the petitioner questioned this rejection. The election petition was filed on March 4, 1967 and the appellant filed his written statement thereto on August 24, 1967.

(3.) Although seven issues were framed, only one relating to the rejection of the nomination papers of the petitioner was canvassed at the trial. The issues had been settled on September 2, 1967. In paragraph 5 of his written statement, the appellant pleaded that the petitioner was a Government contractor who had a subsisting contract and this disqualification existed both prior and after the filing of the nomination by the petitioner. The examination of the witness commenced on April 8, 1968 and on that date four witnesses were examined on behalf of the petitioner. The case was then adjourned to April 12, 1968 when the petitioner was examined as P. W. 5. The appellant examined the Returning Officer as P. W. 1 on the same date. The case was then adjourned to April 17, 1968 for the examination of the other witnesses of the appellant. The appellant was examined as R W. 2 on the 17th April and at his instance the case was adjourned to April 25. 1968 for the examination of one Ghulam Hussan Dar. On the last mentioned date the appellant moved an application with four documents as annexure thereto and prayed for permission to prove them in order to establish that there was a contract with the Government in which the election petitioner was interested but which had not been mentioned earlier either before the Returning Officer or in his written statement. The case stood adjourned till May 9, 1968 which was fixed for hearing of the said application and, for the filing of objections, if any, by the petitioner. On the adjourned date the petitioner filed a rejoinder objecting to the introduction of new material by the appellant. With the consent of the parties the matter was ordered to be put upon June 5, 1968 at Srinagar where the court was to move in the meantime. The matter was actually taken up on June 18, 1968 "subject to objection and on payment of Rs. 50/- as costs to the petitioner, condition precedent". The costs were paid and accepted and the appellant led evidence in support of his new ground on June 24, 1968 and examined four witnesses. R. Ws. 3 to 6 and brought on record a number of documents. The petitioner was allowed time till following day as desired by him to lead his rebutting evidence. On June 25, 1968 the petitioner examined three more witnesses, P. Ws. 6, 7 and 8 and gave further evidence himself. The arguments were heard on 10th and 11th June, 1968.