MOHD AYUB KHAN Vs. BELI RAM

JUDGEMENT

(1.) THIS is an appeal under Sec. 123 of the Jammu and Kashmir Representation of the People Act against an order of the Election Tribunal declaring Mohd Ayub Khan appellants election void. Mohd Ayub Khan, Lakhmi Chand and Sheikh Abdul Rehman had filed their nomination papers as candidates for election from the Arnas Assembly Constituency, Tehsil Reasi. At the time of scrutiny, the nomination papers of Lakhmi Chand and Sheikh Abdul Rehman were rejected by Mr. Tek Chand Kotwal, Sub -Judge Reasi who was appointed as the Returning Officer for the said Constituency. Mohd Ayub Khan was, therefore, elected to the Jammu and Kashmir Legislative Assembly unopposed from the Arnas Constituency. Beli Ram one of the electors from that Constituency filed an election petition for setting aside of the election of Mohd Ayub Khan on the ground that Lakhmi Chands nomination papers were improperly rejected by the Returning Officer. It was averred that Lakhmi Chand who stood as a candidate had given his correct address and the Returning Officer had erred in holding that the address was incomplete and incorrect and, therefore, the rejection of the nomination paper was not justified. Respondent No. 2, Lakhmi Chand admitted the correctness of the allegations made by the petitioner and prayed that the election of respondent No. 1 be declared void.

(2.) THOUGH before the Election Tribunal the controversy ranged over several issues yet before us it is limited to only two of them, namely, that the provisions of section 44 of the Representation of the People Act were not complied with and that the appellant was not given opportunity to adduce evidence of an expert to show that the signatures of proposers of Lakhmi Chand were in fact forged on the nomination papers. We shall deal with these points ad seriatim.

(3.) ON the first point the learned counsel for the appellant has argued that under Sec. 44(5) of the Representation of the People Act it was necessary for the candidate who was an elector of a different constituency to produce a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll before the Returning Officer at the time of scrutiny. As the candidate had not complied with this mandatory provision of sub -section (5) of section 44 his nomination papers were rightly rejected. On behalf of the respondent it is argued that the appellant neither raised this point before the Returning Officer nor had he done so before the Election Tribunal and, therefore, it was not open to him to take up this point in appeal. It is submitted that only those objections which are raised before the Returning Officer could be enquired into by the Election Tribunal and no other ground of attack was available to the appellant.