GH MOHD MAGRAY Vs. GH QADIR BEDAR

JUDGEMENT

(1.) THE following two questions arising for decision before my learned brother Wasi -ud -Din J. in the above noted election petitions which had been assigned to him for trial and adjudication by the Honble Chief Justice under section 88 -A of The Jammu and Kashmir Representation of the People Act 1957 (Act No. IV of 1957) have been referred to this bench for determination: -

(2.) THE material facts leading to this reference are: vide S. O. 227 dated January 12, 1971, the Central Govern ­ment in exercise of the power conferred on it by sub ­section (1) of section 3 of the Unlawful Activities (Preven ­tion) Act 1967, (Act No. 37) of 1967, which was applied to the State with effect from September 1, 1969, declared the All Jammu and Kashmir Plebiscite Front (hereinafter called the Front) to be an unlawful association. On the same date the said Government acting under the proviso to sub -section (3) of section 3 of the Act issued another notification directing that the said declaration in respect of the Front would take immediate effect from the date of its publication in the official gazette i. e. from January 12, 1971. Vide notification No. S. O. 572 dated January 28, 1971, issued in exercise of the power conferred on it under sub -section (1) of section 5 of the Unlawful Activities (Prevention) Act, the Central Government constituted a Tribunal consisting of Honble Shri Syed Murtaza Fazl Ali, Chief Justice of the State High Court, for the purpose of determining as to whether or not there was sufficient cause for making the declaration that the Front was an unlawful association and on February 8, 1971, the same Government pursuant to sub -section (1) of section 4 of the Act, made a reference to the Tribunal for the aforesaid purpose. After holding an enquiry in the manner specified in sub -section (3) of section 4 of the Act, the Tribunal vide its decision dated June 15, 1971, confirmed the aforesaid notification S. 6. 227 dated January 12. 1971, declaring the Front to be an unlawful association. In the General elections held in March 1972, the above noted petitioners in election petitions Nos. 6, 9, 16 and 18 of 1972, who were enrolled as voters in their respective constituencies offered themselves as candidates for election to the Legislative Assembly of the Jammu and Kashmir State. They could not, however, contest the elections as the nomination papers filed by them were rejected on the ground that they were members of the Front which had been banned by the Central Government vide S. O. 227 dated January 12, 1971, and as such were disqualified from contesting the election in terms of section 24 -AA of the Jammu and Kashmir Representation of the People Act, 1957. Election Petition No. 15 of 1972, has, been filed by two electors of Pattan Assembly constituency. Averring that they were not members of the Front, that their nomination papers were improperly rejected and that section 24 -AA of the Jammu and Kashmir Repre ­sentation of the People Act, inserted by Act No. 8 of 1971, which contained a disqualification on the ground of membership of an association which is banned under the Unlawful Activities (Prevention) Act, 1967, was violative of the Constitution as it deprived a citizen of the right guaranteed to him by the Constitution to stand for election, the petitioners in the above mentioned Petitions Nos. 6, 9, 16 and 18 of 1972 filed election petitions praying that the election of the returned candidates (whom they had impleaded as respondents) be declared void as the nomina ­tion papers filed by them were improperly and illegally re ­jected by the Returning Officer. Petitioners in Election Petition No. 15 of 1972 prayed that as the nomination paper of Shri Abdul Rashid Shaheen was illegally and improper ­ly rejected on the ground similar to that of the petitioners in Election Petitions Nos. 6, 9, 16 and 18 of 1972, the election of Shri Ghulam Qadir Bedar, the returned Candidate from Pattan Assembly constituency, be declared void.

(3.) THE petitions were contested inter alia on the ground that the nomination papers in question were rightly re ­jected as the persons filing them were members of the "Front", which had been declared unlawful under the Unlawful Activities (Prevention) Act, 1967, and were as such disqualified for being chosen as members of the Legis ­lative Assembly under section 24 -AA of the Representation of the People Act, which was perfectly valid and was validly enacted by the State Legislature under section 69 (e) of the Constitution of Jamrnu and Kashmir for ensuring election of proper persons to the House.