Tassadiq Hussain Vs Mohd. Rashid Qureshi .

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1825 OF 2006

Tassadiq Hussain ... Appellant

Versus

Mohd. Rashid Qureshi & Ors. ... Respondents

J U D G M E N T

J.M. Panchal, J.

This appeal, filed under Section 123 of the Jammu

and Kashmir Representation of the People Act, 1957, is

directed against judgment dated March 13, 2006,

rendered by the learned Single Judge of the High Court of

Jammu and Kashmir at Jammu in Election Petition No. 1

of 2005 by which the Election Petition filed by the

respondent No. 1, challenging election of the appellant to

the Legislative Council of the State Legislature, is allowed

and his election is declared void. Further the learned

Single Judge has declared that in place of the appellant

the respondent No. 1, i.e., Mr. Mohd. Rashid Qureshi,

advocate, is proclaimed as elected.

2. The facts, giving rise to the instant appeal, are as

under:

The Constitution of Jammu and Kashmir (‘the

Constitution’ for short) was implemented on January 26,

1957. Section 50 of the Constitution deals with

composition of Legislative Council. Sub-Section (3) of

Section 50 of the Constitution provides that eleven

members of the Legislative Council shall be elected by the

members of the Legislative Assembly from amongst

persons, who are residents of the Province of Jammu.

However, the proviso to the said sub-section stipulates

that at least one member out of eleven members shall be

2

resident of Doda District whereas at least one shall be a

resident of Poonch District.

The Election Commission of India initiated election

process for filling up six vacancies having fallen vacant in

the Legislative Council of Jammu and Kashmir including

the reserved vacancy for a person resident of Poonch

District by a notification dated March 24, 2005, issued

under Section 29 of the Jammu and Kashmir

Representation of People Act, 1957 (‘the Act of 1957’ for

short). Under the notification dated March 30, 2005 it

was specified that the last date for filing nominations was

March 31, 2005 whereas scrutiny of the nomination

papers was to take place on April 2, 2005, which was

also the last date for withdrawal of the candidatures.

According to the election schedule, the polling was to

take place on April 11, 2005 and election process was to

be completed on April 15, 2005.

For the reserved seat for resident of Poonch District,

three candidates, namely, Mr. Mohd. Rashid Qureshi,

i.e., the respondent No. 1 herein, Mr. Tassadaq Hussain,

3

i.e., the appellant herein and one Mr. Imtiyaz Ali Banday

filed their nomination papers with the Returning Officer.

The respondent No. 1 was the sponsored candidate of

National Conference Political Party whereas two other

candidates were sponsored by People’s Democratic Party.

Mr. Imtiyaz Ali Banday did not contest the election and

withdrew his candidature on the last date fixed for

withdrawal of the nominations. Admittedly, the

respondent No. 1 is a resident of Tehsil Mendhar, District

Poonch, whereas the appellant is resident of Village

Larkoti, Tehsil Budhal, Kotranka, District Rajouri. At the

time of scrutiny of nomination papers, the respondent

No. 1 raised an objection to the candidature of the

appellant before the Returning Officer, stating that the

appellant being a resident of District Rajouri was not

eligible to contest the election for the seat reserved for a

resident of Poonch District and, therefore, his nomination

be rejected. The Returning Officer, taking into

consideration clarification given by the Election

Commission of India vide letter No. 332/JK-LC/2005

4

dated March 30, 2005, rejected the objection raised by

the respondent No. 1 and accepted the nomination

papers of the appellant. While accepting the nomination

papers of the appellant, the Returning Officer recorded

reasons and observed that any change/alteration in the

boundaries of Poonch District by an administrative or

statutory order would not deprive the residents of the

erstwhile Poonch District of the right to such reservation

as is provided to them under the proviso to sub-Section

(3) of Section 50 of the Constitution. Thereafter, the

election was held and the appellant got 60 votes of the

Members of the Legislative Assembly of the State as

against 28 votes cast in favour of the respondent No. 1.

Thus, the appellant was declared to have been elected as

a member of the Legislative Council by the Returning

Officer for the seat reserved for a resident of Poonch

District.

3. Being aggrieved by this, the respondent No. 1 filed

Election Petition No. 1 of 2005 before the High

5

Court of Jammu and Kashmir and challenged

election of the appellant to the Legislative Council

held in the year 2005 on the ground that the

appellant, being ineligible to contest the election,

his election was null and void. The respondent No.

1 further prayed that after declaring the election of

the appellant as null and void, he should be

declared to have been elected as Member of

Legislative Council in place of the appellant.

4. The learned Single Judge took into consideration

the historical background, which resulted into

creation of Poonch District and Rajouri District,

which was available on the official websites of the

two Districts. The learned Judge observed that vide

order No. 667-C of 1949 dated August 20, 1949 it

was decided that the then existing Reasi District

comprising Tehsils Reasi and Rampur-Rajouri was

to be abolished and a new district comprising Tehsil

Rampur-Rajouri and Nowshera to be formed with

6

the name of Rajouri having Head Quarter at

Rajouri. The Court noticed that after the

notification dated August 20, 1949 District Rajouri

stood constituted under Section 5 of the Jammu

and Kashmir Land Revenue Act, 1996 (1939 AD) as

independent District. The Court also found that

vide Order No. 1451-C of 1950 dated December 11,

1950, District Rajouri, for administrative and

revenue purposes, was administered by District

Administration, headquartered at District Poonch.

The Court further noticed that no Government order

or notification was brought on the record to show

that a district known as District Rajouri-Poonch

was ever constituted. The learned Judge further

found that the Revenue Department, while issuing

SRO 444 dated October 21, 1967, by which District

Rajouri was excluded from Poonch-Rajouri District,

did not take note of the Government Order No. 667

of 1949 dated August 20, 1949 and, therefore, no

fresh notification under Section 5 of the Jammu

7

and Kashmir Land Revenue Act for creation of

Rajouri District as an independent District was

required, but surprisingly the same was issued

again. The learned Judge observed that Rajouri

was never part of the District Poonch either before

or after the commencement of the Constitution and,

therefore, a resident of Rajouri District cannot and

could not be in any manner deemed to be a resident

of Poonch District. According to the learned Judge,

in absence of definition of words “Poonch District”

in the Constitution the said expression has to be

understood in its natural and ordinary or popular

meaning. The learned Judge observed that the

ordinary and popular meaning of the expression

“Poonch District” read with the provisions of

Revenue Department Re-organisation Act, 2008,

would mean the revenue – administrative district

and placed reliance on the decision of this Court in

Maheshwari Fish Seed Farm vs. T.N. Electricity

Board and another [(2004) 4 SCC 705] and Dr.

8

Ajay Pradhan vs. State of Madhya Pradesh and

others [AIR 1988 SC 1875], for coming to the above

mentioned conclusion. According to the learned

Judge, the language of sub-Section (3) of Section 50

of the Constitution is absolutely clear and

unambiguous and, therefore, the reservation

provided thereby for a resident of Poonch District,

which should not be construed to mean to include a

resident or Rajouri District. In view of the above-

referred conclusions, the learned Judge allowed the

Election Petition, filed by the respondent No. 1 and

election of the appellant to the Legislative Council of

the State Legislature is declared to be void whereas

in his place the respondent No. 1 is declared as

elected by judgment dated March 13, 2006, which

has given rise to the instant appeal.

5. This Court has heard the learned counsel for the

parties at great length and in detail. This Court has

9

also considered the documents forming part of the

appeal.

6. Dr. Rajeev Dhawan, learned senior advocate for the

appellant, contended that the view expressed by the

Election Commissioner in communication dated

March 30, 2005 was rightly taken into

consideration by the Returning Officer while

accepting the nomination papers of the appellant

and rejecting the objection raised by the respondent

No. 1. It was contended that as view expressed by

the Election Commission has binding effect, in view

of Section 138 of the Constitution, the election of

the appellant could not have been declared as void.

The learned counsel emphasized that Poonch

including Rajouri are border Districts next to the

Actual Line of Control with Pakistan and are known

as hardship districts and, therefore, the learned

Single Judge of the High Court committed an error

in holding that Rajouri was not part of Poonch

10

District. It was emphasized by the learned counsel

for the appellant that at the time of making the

Constitution under Order dated December 11,

1950, Poonch was administratively identified as

including Rajouri and, therefore, the finding, that a

resident of Rajouri is not entitled to contest the

election as Member of the Legislative Council for the

reserved seat of Poonch District, is erroneous and

deserves to be set aside. According to the learned

counsel for the appellant, interpretation of a

constitutional provision cannot depend on what

Government or Revenue Department of the

Government thinks and if this is permitted, the

reservation contemplated by proviso to sub-Section

(3) of Section 50 of the Constitution would go on

changing from day-to-day and, therefore, it should

have been held that the appellant, who is resident of

Rajouri District, was entitled to contest election for

the seat reserved for a resident of Poonch District.

The learned counsel submitted that if the

11

interpretation placed by the learned Single Judge of

the High Court were to be accepted, the same would

adversely affect a resident of Tehsil Ladakh and

Tehsil Kargil for whom reservation is made under

the proviso to sub-Section (2) of Section 50 of the

Constitution as well as a resident of Doda District

for whom reservation is made under sub-Section (3)

of Section 50 of the Constitution and, therefore, the

same should not have been adopted by the High

Court. According to the learned counsel, the onus

was on the respondent No. 1 to prove by leading

evidence that Rajouri did not form part of Poonch

District and the respondent No. 1, having failed to

discharge the onus, the Election Petition filed by

him should have been dismissed. What was

maintained was that the Constitution must be given

an expansive interpretation because it is the Grand

norm and the document from which the other

enactments flow and as intent of the framers of the

Constitution was to provide reservation to a resident

12

of Poonch District having geographical area

envisaged, the Election Petition challenging the

election of the appellant should have been

dismissed by the High Court. The learned counsel

asserted that the expression “Poonch District”

includes Rajouri District and, therefore, without any

amendment in the Constitution, as contemplated by

Section 147 of the Constitution, the election of the

appellant could not have been voided on the ground

that the expression “Poonch District” does not

include “Rajouri District”. The learned counsel

argued that no revenue authority can change the

Constitution or its intent and, therefore, the

reliance placed by the learned Single Judge of the

High Court on the notification dated October 21,

1967, issued under the Jammu and Kashmir Land

Revenue Act was misplaced. The learned counsel

stressed that the judgment impugned is erroneous

and deserves to be set aside. In support of above-

mentioned contentions, the learned counsel relied

13

on the decisions of this Court in (1) State of U.P.

and others vs. Pradhan Sangh Kshettra Samiti

and others [1995 Supp. (2) SCC 305], (2) K.

Venkataramiah vs. A. Seetharama Reddy and

others [1964 (2) SCR 35], (3) Jeet Mohinder Singh

vs. Harminder Singh Jassi [(1999) 9 SCC 386], (4)

Supreme Court Advocates-on-Record Association

and others vs. Union of India [(1993) 4 SCC 441],

(5) Printers House Pvt. Ltd. Vs. Mst Saiyadan

(deceased) by LRs. And others [(1994) 2 SCC 133]

and (6) Narender Singh vs. Mala Ram and another

[(1999) 8 SCC 198].

7. Mr. Ranjit Kumar, learned senior advocate for the

respondent No. 1, contended that the phrase

“resident of Poonch District”, appearing in the

proviso to sub-Section (3) of Section 50 of the

Constitution, should be construed to mean its

ordinary meaning, which can only mean the

geographical area of District of Poonch as it existed

14

on the date of notification of the elections in the

year 2005. According to the learned counsel, the

ordinary meaning of the word “District” is to be

found in J&K Revenue Department Reorganisation

Act, 2008, which means a “Revenue District”

whereas Articles 243A and 243P(b) of the

Constitution of India define the word “Districts” to

mean as District in the State and, therefore, the

judgment impugned should be upheld by this

Court. The learned counsel also pointed out the

Legal Glossary published by the Government of

India which defines the word “District” as portion of

territory marked off or defined for some special

administrative or official purpose and includes a

division or sub-section of a province or presidency.

The learned counsel emphasized that a word in the

Constitution should not be given historical meaning

as the Constitution is always dynamic, organic

living document which goes on changing to meet the

needs of the people as well as the exigencies of the

15

time. The learned counsel stressed that the

intention of the Legislature should be primarily

gathered from the language used and while

ascertaining the intention, attention should be paid

to what has been said and not to what has not been

said. According to Mr. Ranjit Kumar, learned

counsel for the respondent No. 1, the words of the

statute should be first understood in their natural

ordinary or popular sense and phrases and

sentences should be construed according to their

grammatical meaning unless such a construction

leads to some absurdity or unless there is

something in the context or in the object of the

statute to suggest to the contrary. It was argued

that the natural and ordinary meaning of the words

used by the Legislature should not be departed from

unless it can be shown that the legal context in

which the words are used, requires a different

meaning and a statute should be read in the

ordinary and primary sense without any omission

16

or addition. The learned counsel contended that

the language employed in the proviso to sub-Section

(3) of Section 50 of the Constitution is precise,

plain, categorical as well as unambiguous and also

expresses the intention of the framers of the

Constitution, which is that the expression “Poonch

District” does not include District Rajouri. The

learned counsel argued that different principles of

interpretations as suggested by the learned counsel

for the appellant, for understanding as to what was

in the mind of the framers of the Constitution while

enacting the proviso to sub-Section (3) of Section 50

of the Constitution need not be gone into, more

particularly, when the ordinary meaning of the

phrase “Resident of Poonch District” is clear and

unambiguous. It was submitted that even

otherwise Rajouri District was not even historically

a part of the Poonch District and merely because

the Head Quarters of DM/SSP of both Rajouri and

Poonch Districts were directed to be located at

17

Poonch, vide order dated December 11, 1950,

Poonch and Rajouri cannot be regarded as one

District. It was submitted that the District Rajouri

was a part of District Bhimber in 1904 (A.D.) and

thereafter it was bifurcated from District Bhimber

and was affiliated to Reasi District, but in the year

1949, vide order No. 667-C of 1949 dated August

20, 1949, District Reasi comprising Tehsils

Rampur-Rajouri and Reasi, was abolished and a

new District known as District Rajouri comprising

Tehsils Rampur-Rajouri and Nowshera was formed,

whereas pursuant to Cabinet Order No. 667-C,

mentioned above, issued in exercise of powers

under Section 5 of the Land Revenue Act, 1996

(SVT), District Rajouri was formed, which was

constituted comprising Tehsil Rajouri Tehsil

Nowshera. The submission, which was placed by

the learned counsel for the respondent No. 1 for

consideration of the Court, was that burden of proof

was not on the respondent No. 1 to prove that

18

District Poonch did not include District Rajouri

because both the parties had accepted, as

mentioned in the impugned order of the High Court,

that it was purely a question of law to be decided by

the Court. According to the learned counsel for the

respondent No. 1, the appellant was not precluded

to bring evidence on record to establish that a

resident of Rajouri should be called as Resident of

Poonch District. The learned counsel emphasized

that no material having been produced by the

appellant to show that District Poonch includes

District Rajouri, the ordinary meaning of the

expression “Resident of Poonch District” as

appearing in the proviso to sub-Section (3) of

Section 50 of the Constitution, should be adopted

by the Court. What was maintained was that

though Election Commission of India has a duty to

superintend, direct and control elections, there is no

power available to Election Commission of India to

define boundaries of the constituencies or territorial

19

limits as a result of which the view expressed by the

Election Commission in its communication dated

March 30, 2005 that a resident of Rajouri District

would be entitled to contest election on a seat

reserved for a resident of District Poonch, has no

value at all. The learned counsel referred to the

decision of this Court in Laxmi Kant Bajpai vs.

Haji Yaqoob and others [(2010) 4 SCC 81], to

buttress his arguments that Election Commission of

India has no power to change the boundaries or

area or extend the boundaries of any constituency.

It was argued by the learned counsel for the

respondent No. 1 that if the framers of the

Constitution had intended to give representation by

way of reservation to the residents of Poonch as well

as Rajouri for all time to come, the framers of the

Constitution would have defined the territories of

District Poonch as well, but, it is an admitted

position that the territories of District Poonch were

never defined by the Government and, therefore, in

20

the absence of any such definition, “Poonch

District” will have to be given its natural, ordinary

or popular meaning. It was pointed out that

Section 5 of the Jammu and Kashmir

Representation of People Act provides for

delimitation of constituencies, i.e., MLC

constituency and in case the intention of the

Government was to provide special status to the

residents of Rajouri, there could have been an

appropriate delimitation of constituencies of MLC

also and in absence of such a delimitation for MLC

the historical meaning should not be assigned while

interpreting the provisions of the Constitution.

8. In support of the above mentioned submissions, the

learned counsel for the respondent No. 1 has placed

reliance on the decision of this Court in

Maheshwari Fish Seed Fram vs. T.N. Electricity

Board and another [(2004) 4 SCC 705].

21

9. The learned counsel for the State of Jammu and

Kashmir argued that the contention of the learned

counsel for the appellant that the appellant was

entitled to contest election for the reserved seat of

District Poonch on the ground that at the time of

commencement of the Constitution, Rajouri was

part of District Poonch is misconceived and

incorrect. It was submitted that Section 5 of the

Jammu and Kashmir Land Revenue Act, 1996 Svt.

(1939 AD) inter alia provides that the Government

may by notification vary the limits of Tehsils,

Districts and Provinces under which the territories

administered by each are defined and may also by

notification alter the number of those Tehsils,

Districts and Provinces. What was pleaded was that

in exercise of powers under Section 5 of the said

Act, notifications had been issued from time to time

by the Government for demarcating the areas of the

Districts. According to the learned counsel, the

Districts or Tehsils for any purposes means

22

Districts or Tehsils, as the case may be, as notified

by the Government from time to time under Section

5 of the said Act. It was maintained that in the year

1949 the General Department of Prime Minister’s

Secretariat had issued an order bearing No. 667-C

of 1949 whereby District Rajouri was constituted

comprising Tehsil Rampur-Rajouri and Nowshera

with its Head Quarters at Rajouri and, therefore, it

is wrong to contend that District Poonch, as

mentioned in the proviso to sub-Section (3) of

Section 50 of the Constitution, includes Rajouri.

The learned counsel for the State contended that as

on the date of the election in the instant case,

District Rajouri was a separate District and distinct

from Poonch District and, therefore, the benefit of

the reserved seat that is provided under Section

50(3) of the Constitution would not be available to

the residents of District Rajouri. The learned

counsel stressed that the High Court by its

impugned judgment has correctly appreciated the

23

facts as well as rightly interpreted the law and,

therefore, the said judgment should not be

interfered with by this Court.

10. This Court has heard learned counsel for the parties

at length and in great detail. This Court has also

taken into consideration the documents forming

part of the appeal as well as relevant provisions of

law to which attention of the Court was drawn by

the learned counsel for the parties and the

authorities cited at the Bar.

11. Before proceeding to consider the submissions

advanced at the Bar it would be relevant to note

that the learned counsel for the appellant conceded

that the appellant was not claiming recrimination.

It means that the appellant has given up his prayer

to declare that the respondent NO. 1 was not

qualified to be elected as member of the Legislative

Council. The concession made by the learned

counsel for the appellant was in view of the fact that

24

this point was not raised by the appellant herein

before the High Court.

12. Another relevant fact, which requires to be noticed,

is that the learned counsel for the appellant agreed

that the Poonch District stands divided for the

purpose of law and order, revenue and for Assembly

constituencies. However, he emphasized that for

the purpose of the Legislative Council, there was no

division of Poonch District. This Court finds that

the latter argument, if accepted, would lead to

absurd results. It may be mentioned that it was

averred by the respondent No. 1 in his petition

before the High Court that right from the elections

in the year 1967 till date no resident of District

Rajouri was elected as a member of Legislative

Council for the seat reserved for residents of District

Poonch. In fact, an averment was made that the

respondent No. 3 herein, i.e., the Returning Officer

in 2005 elections was also the Returning Officer in

25

1999 elections and he had rejected the nomination

paper of a resident of Rajouri as being not eligible.

This Court finds that that the Returning Officer was

given a reward within one week of rejection of

nomination papers of a resident of Rajouri District

and the extension of one year in service was granted

to him. Therefore, this Court finds some force in

the argument advanced by the learned counsel for

the respondent No. 1 and learned counsel for the

State Government that the Government and

Election Commission had always interpreted the

word “Poonch District” under the proviso to Section

50(3) of the Constitution to mean as Revenue

District of Poonch and Rajouri was not considered

to be part of District Poonch. This Court finds that

the above-stated averments could not be

demonstrated to be untrue. The past history does

not support the case of the appellant that though

for all practical purposes including for the purpose

of Assembly election, District Poonch was divided, it

26

stood integrated for the purpose of election to

Legislative Council.

13. In view of the rival submissions advanced at the

Bar, the question which arises for determination of

the Court is whether the expression “Poonch

District” used in the proviso to sub-Section (3) of

Section 50 of the Constitution of Jammu and

Kashmir, 1957, reserving a seat in the Legislative

Council for the resident of Poonch District means

Poonch District as it existed on March 24, 2005

when the election notification was published or it

includes Rajouri also. Another question which

arises for consideration by the Court is whether the

District Rajouri was ever constituted and notified

under the law as a part of Poonch District prior to

or on the date of commencement of the Constitution

of Jammu and Kashmir, 1957.

14. It is well settled that the words of a statute should

be first understood in their natural, ordinary or

27

popular sense and phrases and sentences should be

construed according to their grammatical meaning,

unless that leads to some absurdity or unless there

is something in the context, or in the object of the

statute to suggest the contrary. If the language

used has a natural meaning, normally the Court

cannot depart from that meaning, unless reading

the statute as a whole, the context directs the Court

not to do so. In the construction of the statutes

their words are normally interpreted in their

ordinary grammatical sense. Of course, the context

in which they occur and the object of the statute

has to be kept in mind while adopting ordinary

grammatical sense of the word. It is often said that

the golden rule is that the words of a statute must

prima facie be given their ordinary meaning.

Parliament should prima facie be credited with

meaning what is said in an Act of Parliament or

Constitution. The drafting of statutes, so important

to a people who hope to live under the rule of law,

28

will never be satisfactory unless the Courts seek,

whenever possible, to apply the golden rule of

construction, that is to read the statutory language

grammatically and terminologically in the ordinary

and primary sense, which it bears in its context

without omission or addition. Of course, Parliament

should also be credited with good sense that when

such an approach produces injustice, absurdity,

contradiction or stultification of statutory objective

the language may be modified sufficiently to avoid

such disadvantage.

15. If the expression “Poonch District”, appearing in the

proviso to sub-Section (3) of Section 50 of the

Constitution, is interpreted in its ordinary and

grammatical meaning, it means District Poonch as

was constituted at the time when election

notification was published. If an ordinary meaning

of the expression “Poonch District” is accepted, it

would mean the geographical area of District

29

Poonch as it existed on the date of notification

issued for holding elections in the year 2005. The

word ‘resident of Poonch District’ in its ordinary

sense would mean a resident of Poonch District and

resident of Rajouri cannot be regarded as resident of

Poonch District. If the framers of the Constitution

had intended to give representation by reservation

to the residents of Poonch as well as of Rajouri,

nothing prevented them from defining the territories

of District Poonch as inclusive of Rajouri. In the

absence of such definition, the expression “Poonch

District” must be understood in its natural,

ordinary or popular meaning. It is an admitted

position that as per the definition of the term

“District” mentioned in the provisions of Revenue

Department Reorganization Act, 2008, the word

“District” means a “Revenue District” and if this

interpretation is adopted, it becomes at once clear

that the expression “District Poonch” appearing in

the proviso to sub-Section (3) of Section 50 of the

30

Constitution, does not include Rajouri.

16. Even historically this Court finds that Rajouri was

never part of Poonch District either before or after

the commencement of the Constitution. There was

no Constitution of Jammu and Kashmir in the year

1949, but what was applicable and prevalent was

J&K Constitution Act of SVT 1996 (year equivalent

to 1939 AD). Under the said Act Prime Minister was

head of the State. The General Department of Prime

Minister’s Secretariat issued an order No. 667-C of

1949 dated August 20, 1949 mentioning that Reasi

District comprising Tehsil Reasi and Rampur-

Rajouri be abolished and instead a new District to

be known as District Rajouri comprising Tehsils

Rampur-Rajouri and Nowshera be formed as a

temporary measure with Head Quarters at Rajouri.

It may be stated that Tehsil Rampur-Rajouri is the

present Tehsil of Rajouri which earlier used to be

known and called as Rampur-Rajouri. After

31

publication of above mentioned order dated August

20, 1949, the Government formed and constituted a

new District known as District Rajouri with Head

Quarters at Rajouri comprising Tehsil Rajouri and

reconstituted Tehsil of Nowshera, by issuing an

order under Section 5 of the Jammu and Kashmir

Land Revenue Act, 1996 (Samvat). Again, an order

No. 1451-C of 1950 dated December 11, 1950 was

issued mentioning that the Head Quarters of

District Magistrate and Wazir Rajouri and Poonch

and Superintendent of Police, Rajouri be located at

Poonch and that of Assistant Superintendent of

Police at Rajouri. A conjoint and meaningful

reading of above mentioned notifications/orders

makes it abundantly clear that though District

Rajouri stood constituted as an independent

District, its Head Quarters for District Magistrate

and Deputy Commissioner was located at Poonch,

which was also the Head Quarters of District

Poonch. Thus for administrative and revenue

32

purposes District Rajouri was administrated by

District Administration Head Quarters located at

District Poonch. This Court finds that under these

circumstances, the High Court had recorded a

finding that since there was no separate and

independent District Administration provided for

District Rajouri and District Rajouri as well as

District Poonch continued to be administered by

joint District Administration from Poonch, both the

Districts for the purpose of administration were

being referred to as one District, namely, Rajouri-

Poonch District. It is pertinent to note that the

record does not indicate that any such district

known as Rajouri-Poonch District was ever formed

by the Administration. The record also shows that

this position continued up to the year 1957, when

the Jammu and Kashmir Constitution was brought

into force with effect from January 26, 1957. What

is relevant to notice is that the General Department

of the State issued Government Order No. 137-C of

33

1967 dated September 30, 1967 splitting Poonch

District into two Districts, i.e., (1) Poonch District

comprising Haveli and Mendhar Tehsils with Head

Quarters at Poonch and (2) Rajouri District

comprising Rajouri and Nowshera Tehsils with Head

Quarters at Rajouri, in the interest of revenue and

law and order. By the said order Tehsils Rajouri

and Nowshera which were excluded from the

Poonch District, constituted a separate district

known as District Rajouri. It is worthwhile to note

that the Revenue Department of the State issued

notification SRO 444 dated October 21, 1967 under

Section 5 of the Jammu and Kashmir Land Revenue

Act, SVT 1996, directing that the territorial limits of

Tehsil Rajouri and Nowshera shall be excluded from

the existing Poonch-Rajouri District and shall

constitute a separate District to be known as

District Rajouri. If one reads the above mentioned

two orders, a glaring fact, which cannot be ignored,

becomes evident is that though no fresh notification

34

under Section 5 of the Jammu and Kashmir Land

Revenue Act for creation of the District Rajouri as

an independent District was required, yet the same

was issued again to emphasis that Tehsil Rajouri

and Nowshera excluded from administratively

known as Poonch-Rajouri District and constituted

into a separate District known as District Rajouri.

Though in the above mentioned two orders, this

Court finds, a reference to Poonch-Rajouri District,

in fact, there was no district formed or constituted,

which was known as Poonch-Rajouri District and

probably all the confusion has arisen only because

of reference of a district known as Poonch-Rajouri

District in the above mentioned two orders.

17. The contention advanced by the learned counsel for

the appellant that if the expression “Resident of

District Poonch”, appearing in the proviso to sub-

Section (3) of Section 50 of the Constitution, is

interpreted to mean a resident of District Poonch

35

and does not include resident of Rajouri, would

have adverse effect on the interpretation to be put to

the proviso to sub-Section (2) of Section 50 of the

Constitution, in which reference is made to Kargil

and Leh, is found by this Court to be an argument

in terrorem and cannot be accepted.

18. The argument that the interpretation canvassed by

the respondent No. 1, if accepted by the Court,

would have effect on the interpretation of the

proviso to sub-Section (2) of Section 50 of the

Constitution, is no ground to place an incorrect

interpretation on the proviso to sub-Section (3) of

Section 50 of the Constitution. In Indian Overseas

Bank vs. I.O.B. Staff Canteen Workers’ Union and

another [2004) 4 SCC 245], the contractor, who

was running canteen, was removed and the Indian

Overseas Bank (‘I.O.B.’ for short) agreed for floating

a cooperative society to run the canteen. The

Central Office of I.O.B. agreed to provide all

36

infrastructural facilities. The staff required was

employed by promoters, who were administering the

canteen. The canteen was successfully being run

by the Central Office from the amounts realized

from day-to-day receipts. However, the canteen was

not able to meet its financial requirements and was

closed. Consequently the canteen workers were

thrown out of employment. At the instance of the

workers’ union, Government of India made two

references to the Industrial Tribunal. Meanwhile,

Central Office made arrangement with a third party

for running the canteen on contractual basis.

Aggrieved by this, the workers filed a complaint

under Section 33-A of the Industrial Disputes Act.

The Tribunal held that the employees of the canteen

were to be treated as workmen of IOB and entitled

to same status and facilities. The Tribunal also

allowed the claim made in the complaint. On writ

petitions filed by the IOB, a single Judge of the High

Court set aside the Award of the Tribunal, which

37

was subsequently restored by the Division Bench of

the High Court. Before this Court the IOB

expressed an apprehension that if the claim of the

canteen workers was upheld, the appellant Bank

would also have to face similar claims from every

employee of the canteens run everywhere.

Negativing the said argument this Court held that

such an argument in terrorem cannot deprive the

workers of such status if they are entitled to such

status.

19. It is significant to note that a query had been made

to the Election Commission of India as to whether

the benefit of reservation under Section 50(3) of the

Constitution of Jammu and Kashmir can be given to

a resident of Rajouri. To this, the Election

Commission of India had responded vide

communication dated March 30, 2005 clarifying

that the Poonch District referred to in Section 50(3)

of the Constitution of Jammu and Kashmir, would

38

include District Rajouri, which was a part of

undivided Poonch District at the time of

commencement of the Jammu and Kashmir State.

It is argued on behalf of learned counsel for the

appellant that under Section 138 of the

Constitution of Jammu and Kashmir, Election

Commission of India has power to superintend and

control elections held in the State of Jammu and

Kashmir and, therefore, the view taken by the

Election Commission of India in its communication

dated March 30, 2005 is binding and should be

accepted by this Court. It is true that under Section

138 of the Constitution of Jammu and Kashmir, the

superintendence, direction and control of elections

to either House of the State Legislature held under

the Constitution vest in the Election Commission of

India. However, in exercise of powers under Section

138 of the Constitution, the Election Commission of

India cannot define boundaries of the constituencies

or territorial limits either of State Legislature or of

39

Legislative Council. After analyzing the different

provisions of the Constitution of India and role

expected to be played by the Election Commission of

India, this Court in Laxmi Kant Bajpai vs. Haji

Yaqoob and others (supra), has ruled that the

Election Commission of India has no power to

change the boundaries or areas or extend the

boundaries or areas of any constituency. May be,

the view taken by the Election Commission of India

can be taken into consideration by the Court of Law

while interpreting the provisions of proviso to sub-

Section (3) of Section 50 of the Constitution.

However, the power to superintend, direct and

control elections does not make the clarification

binding either on the State Government or the

persons contesting the elections and voters. It is

certainly not binding on this Court. Having taken

into consideration the view expressed by the

Election Commission of India in its communication

dated March 30, 2005, this Court finds it difficult to

40

agree with the view expressed therein. The

clarification issued by the Election Commission of

India is not only contrary to historical background

of the two districts concerned, but is also plainly

against the well-settled principles of interpretation

of statute.

20. The last plea that the burden to prove that the

expression “Resident of Poonch District” does not

include a resident of Rajouri is on the respondent

No. 1, who has filed petition challenging the election

of the appellant as a Member of the Legislative

Council and as the said burden was not discharged,

the petition should have been dismissed, has no

substance at all.

21. A glance at the impugned order makes it evident

that both the parties had accepted before the High

Court that this was purely a legal issue to be

decided on the interpretation of the provisions of the

Constitution. In such circumstances question of

41

burden of proof never arose before the High Court.

This Court finds that it was the specific case of the

appellant that the expression “a resident of District

Poonch” includes a resident of District Rajouri and,

therefore, the appellant, if advised, could have

brought the evidence on record to substantiate the

said plea. The fact remains that no material was

brought on record of the case by the appellant to

indicate, even remotely, that a resident of Rajouri is

called or known as resident of Poonch District for

the purposes of the proviso to sub-Section (3) of

Section 50 of the Constitution. Under the

circumstances, this Court is of the view that the

High Court was justified in not dismissing the

petition filed by the respondent No. 1, questioning

the election of the appellant as a Member of the

Legislative Council on the ground that the

respondent No. 1 had failed to discharge the burden

of proof.

42

22. For the reasons mentioned above, this Court does

not find any substance in the appeal. The

conclusion drawn by the High Court in the

impugned judgment that the expression “a resident

of Poonch District” in the proviso to sub-Section (3)

of Section 50 of the Constitution, does not include a

resident of Rajouri is just and no ground is made

out to interfere with the same in the instant appeal.

Therefore, the appeal, which lacks merit, deserves

to be dismissed.

23. The appeal, therefore, fails and is dismissed. There

shall be no order as to costs.

.....................................J. [J.M. Panchal]

.....................................J. [Gyan Sudha Misra]

New Delhi; November 23, 2010.

43

TASSADIQ HUSSAIN Vs MOHD. RASHID QURESHI .

TASSADIQ HUSSAIN Vs MOHD. RASHID QURESHI .