GH QADIR WAR Vs. HAKIM MOHD YASIN

JUDGEMENT

(1.) ON the grounds of having committed corrupt practices as defined under section 132 of the J and K Representation of Peoples Act, 1957( hereinafter referred to as the Act), the election of the respondent from 24 -Khansahib Legislative Assembly Constituency is claimed by the petitioner to be declared void under section 108 of the Act. It has been alleged that the petitioner and respondent were contesting candidates in the General Elections from the said Constituency for the State Legislative Assembly. The Petitioner contested the election as a candidate sponsored by the Janata Party while the respondent was sponsored by the All J and K National Conference. During the election campaign, it is contended in the petition, the respondent and other leaders of the National Conference delivered speeches in which appeals were made to the electors on the basis of religion and muslim voters in the Constituency were asked to vote for the respondent and refrain from voting for the petitioner. It is contended that the majority of the voters in the aforementioned constituency constitutes of muslims. It has been further contended that the respondent on 13 -6 -77 at Qumeru, on 15 -6 -1977 at Arizal, on 16 -6 -77 at Zugi -Kharian and at Gurwait on 19 -6 -1977 delivered speeches in which he asked the electors to vote for him in the name of religion and Islam. It has been contended that the speeches delivered by the respondent being based on an appeal in the name of religion had its effect and thereby a large number of voters refrained from voting for the petitioner and instead voted for the respondent. It is alleged that the respondent said in these speeches that the election in fact was a war between Kufar and Islam and that if Janata Party was voted to power people shall have to pay a very heavy price by being converted into Hinduism. The petitioner next contends that on 9 -6 -1977 Begum Abdullah, M. P., a prominent leader of the National Conference, with the consent and in the presence of the respondent delivered a speech at Khansahib and according to the petitioner the substance of the speech was her appeal to the voters in the name of religion to vote for the respondent as according to her that was the only way to ensure a plebiscite being held in Kashmir and also that if the voters really wanted to tender some service to the cause of Islam and to the muslims of the State they should vote for the respondent, and refrain from voting Janata Party candidate, the petitioner, as he was an agent of anti -muslim collaborators. It has been contended that because of these speeches delivered for the furtherance of the prospects of the respondents election, that the result was materially affected and the respondent finally succeeded in getting himself elected from the said constituency. The speeches also resulted in arousing communal passions amongst the electors which materially affected the result. It was therefore, prayed by the petitioner that the election of the respondent be declared void on the grounds that he was guilty of having committed corrupt practices with the meaning of section 132 of the Act in having appealed to the electors to vote for him because of his religion, by arousing their religion sentiments. In the written statement the respondent denied all the allegations levelled by the petitioner. He denied to have delivered any speech at places and on dates mentioned in the petition. He has further categorically refuted the allegation that Begum Sheikh Mohammad Abdullah, M. P. delivered any speech at Khansahib as narrated in the election petition. He has contended that he or his supporters never applied to the electors to vote for him on the basis of his religion nor did he arouse the religious sentiments of the electors. In the written statement some preliminary objections have also been raised. 3. On August 24, 1978, the three preliminary issues framed earlier were disposed of by this court. These there preliminary issues were as follows : - 1. Is the petition liable to be dismissed for the absence of a pleading for an affidavit, if so, how ? OPR

(2.) IS the petition liable to be dismissed for want of compliance with Sec : 89 and Sec. 90 of the Representation of Peoples Act of 1957 ? OPR

(3.) IS para 4 of the petition without particulars ? If so. What is its effect on the petition OPR All the three preliminary issues mentioned above were decided against the respondent by the said order. By virtue of the same order the following two issues were framed and parties were put to evidence. The issues are: