P L HANDOO Vs. SHAMS-UD-DIN

JUDGEMENT

(1.) THIS is an election petition by a defeated candidate challenging the election of respondent to the Jammu and Kashmir State Legislative Assembly from Anantnag Constituency during the general elections held in the year 1972. The challenge is based on various grounds of corrupt practices allegedly committed by the respondent himself. The petition contains a large number of allegations under different broad headings but, at the time of final arguments, the petitioner pressed only a few and not all of them. In fact he frankly stated that most of the allegations were starving for want of evidence and could not survive judicial screening. He identified such allegations as forming the subject matter of issues 3, 4, 6, 7, 8, 9, 12, 13, 14, 16, 17 and 18 which he, therefore, did not press. Similarly the counsel for the respondent did not urge the technical objections covered by issues 1 and 2 to the effect that the affidavit enclosed with the petition was not according to law and that the allegations in the petition were vague. Accordingly the first mentioned issues are decided against the petitioner and those mentioned later against the respondent, all of them, as not pressed. That leaves issues, 5, 10, 11 and 15 to deal with. These issues are like this: -

(2.) VIEWED thus, this case may appear to be straight and simple. But apart from other things like the geography of this court, which makes it necessary for a Judge to sit intermittently at Srinagar and Jammu, and the multifarious nature of cases like suits, election petitions, appeals, revisions references and Miscellaneous matters that he is required to deal with, the interim controversies raised in the case were so many and the difficulty and delay involved in procuring the relevant Police reports and enforcing the attendance of the witnesses was so great that the efforts towards its early disposal made first by Mr. Justice Wasi -ud -Din, an adhoc judge of this court, who was seized of the case upto August, 1974 and, thereafter, by me proved elusive.

(3.) REVERTING to the issues under consideration let we take up issues 5 and 15 together. Both these issues arise out of the speech allegedly delivered by the respondent on 1 -3 -1972 at New Chowk Anantnag. The petitioner has put his case, based on this speech, thus: (a) That he (respondent) addressed a mass rally in New Chowk Anantnag on 1 -3 -1972 between 1.30 P.M. -2.30 P.M. and made direct appeals on the ground of his religion for a vote in his favour and for refraining from voting in favour of the petitioner on the ground of religion. In this speech of 1 -3 -1972 he told the voters assembled in the massrally that Muslims would be in danger if they exercised their votes in favour of the petitioner and that the petitioners election would lead to enacting such tragedies as were enacted in Nagrota, Jammu. The tragedy of Nagrota has a special connotation and meaning for the people of town of Anantnag. In the year 1947 after the triable invasion of our State 18 Tongawallas all Muslims, belonging to the town of Anantnag, were murdered at Nagrotta as a result of communal holocaust enacted then. Looked at in this context reference to tragedy at Nagrotta and associating the same with the election campaign of the petitioner was a direct attempt by the respondent to seek vote in his favour and against the petitioner on the ground of religion; (b) That in his aforementioned speech at New Chowk on 1 -3. -1972 the respondent also attempted to promote enmity on the ground of religion by referring to Jana Sang Conspiracy, Nagrotta tragedy and raised slogans Jan Sang Hai Hai and associating all these with the petitioner about whom he fully well knew that he had throughout associated worked and campaigned for robust secularism in the body politic of the State; (c) That the petitioner is an Advocate dedicated to his professional career according to the high ideals set for the profession by law, rules and conventions. On the eve of election, the petitioner was appointed as amicus curiae for a set of ten accused in case being tried in the Central Jail Jammu. The case is known as Alfateh Case. The respondent in his public speech on 1 -3 -1972 held in New Chowk at the time aforementioned in sub -para (iii) of paragraph 11 referred to this case and the petitioners acting as an advocate on behalf of the accused and made a statement of fact in respect of the petitioners conduct as Advocate in the case, which was totally false and which he knew to be false. He referred to a certain communication from one accused Abdul Rashid Dar in the said case whom the petitioner did not represent and attributed on the basis of his alleged communication from the said Abdul Rashid Dar a course of conduct calculated to prejudice the prospects of the petitioners election. In his speech on this date the respondent said that he was told vide the aforementioned communication that the petitioners advocacy was ruining the accused and that he was conducting his work as advocate on the basis of political pressure and that the accused were determined to terminate his services as an advocate. The respondent knew that no such communication was received by him from Abdul Rashid Dar and that the other allegations of fact were also false and were made in respect of the petitioners character and conduct calculated only to prejudice his election".