BHIM SINGH (PROF ) Vs. CH TALIB HUSSAIN

JUDGEMENT

(1.) THE Seat of Shri Vishno Dutt, in the House of People Elected from 6 -Jammu Parliamentary Constituency in the State of Jammu and Kashmir became vacant on 27 -11 -2001 by reason of his death. Therefore, for holding bye - election in the said seat, the Election Commission of India on 16 -1 -2002 issued Notification No. 100/J&K -HP/1/2001 in exercise of the powers vested in it under sub -section (1) of Section 149 and Section 30 and 56 of the Representation of the People Act 1951 for calling upon the electorates of 6 - Jammu Parliamentary Constituency to elect a person, for the purposes of filling the said vacancy in the House of People. By the same Notification the Commission fixed 23rd January, 2002 as the last date for making nominations; 24th January, 2002 as the date of scrutiny of nominations; 28th January, 2002 as the last date for the withdrawal of candidatures; 21st of February, 2002 as the date for conducting the poll, if necessary. The whole election process was directed to be completed before 28th February, 2002. In case of poll hours for the same were fixed from 8 AM to 5 PM. In response to the said Notification, the petitioner Prof Bhim Singh filed his nomination papers as a candidate of J&K National Panthers Party, besides the other candidates including respondent No.1 Ch Talib Hussain, who filed his candidature as a candidate of National Conference Party. On the scrutiny of the nomination papers being held on 24 -1 -2002, 16 candidates in all were found qualified for the said election. After the completion of the election process, respondent No.1 Ch. Talab Hussain was declared elected by the Returning Officer on 27 -2 -2002.

(2.) THE petitioner Prof Bhim Singh has called in question the election of respondent No.1 Ch Talib Hussain, through the medium of this election petition on two grounds, namely, (i) that respondent No.1 resorted to Corrupt Practices and (ii) that the election process was vitiated because of the violation of the Rules Governing the conduct of elections. He has alleged in the petition that respondent No.1 Ch Talib Hussain being a candidate of ruling -party used all Government Machinery for the purposes of election with the connivance, knowledge and consent of then State Chief Minister during the election campaign and attracted the voters for casting Votes by promising them the Government jobs in the State and the Center. The State Chief Minister being the head of ruling National Conference distributed Sewing Machines and Rs 1100/ - to each of the so called destitute women at R S Pura, Suchetgarh and Bishnah Assembly Segments. The then Chief Minister Dr. Farooq Abdullah declared publically for opening of Ist Medical College in village Suchetgarh and a Public Health Center at Pargwal while campaigning for respondent No.1 Ch Talib Hussain. It has also been submitted that during the election campaign several daily wagers were appointed in different departments of the State with the connivance of respondent No.1. Even the Deputy Commissioners of Poonch, Rajouri and Jammu at the behest of the Ministers of the State extended promises to the people of weaker sections of the Society that they shall be allotted sites for houses and will be granted old -age pensions, if they voted for respondent No.1. During the campaigning the then Chief Minister Dr. Farooq Abdullah used Government Helicopter for election propaganda with respondent No.1. This apart, it has also been alleged that Rules 20 and 21 of the Conduct of Election Rules, framed by the Election Commission of India were also violated. It has also been stated in the petition by the petitioner that from the distribution of votes among the candidates in Mendhar, Rajouri and Surankote, it is apparent that abnormally large number of votes were shown to have been polled in favour of respondent No.1, whereas the other candidates received only negligible number of votes, which is indicative of the fact that there was prima -facie evidence of irregularity during poll and despite that those votes were not cancelled by following Rules 21 and 22 of the said Rules.

(3.) THE petitioner has also alleged that bye -election was held on 21 -2 -2002 on the basis of electoral rolls prepared in the year 1988 and since 1988 there has been no revision of the said rolls. Thus, the persons who had already died continued to be shown as voters, whereas the living voters were denied the right of franchise. The Chief Election Commissioner in connivance with the State administration in order to give benefit to respondent No.1 with ulterior motive prepared the electoral rolls. A representation was made to the Chief Election Commission of India in this behalf, but that was not given any consideration. It has also been stated by the petitioner that Rule 28 made it mandatory to provide Identity Cards for Electors of Jammu and Kashmir which had not been provided so they remained victim of fraud and electoral manipulation ever since election process started in the State. The Government of Jammu and Kashmir had declared 347 polling stations in a constituency as sensitive on the eve of the election day, without even providing the list of the names of such polling stations which caused a terror among the polling agents of the opposition parties including Panthers Party, who were not provided any protection by the State, and therefore, respondent No.1 being a candidate of National Conference rigged absolute polls in these un -known 347 Polling Stations in Rajouri and Poonch Districts. Petitioner has further alleged that there were several polling stations which were shifted on the day of election in connivance with the Chief Electoral Officer,. The polling stations of the displaced persons of Planwala, Pargwal etc were put up hundred miles away where no voter could reach, yet the polling was shown above 80% polling.