HC dismisses plea against election to Anantnag parliamentary constituency

HC dismisses plea against election to Anantnag parliamentary constituency
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The High Court on Tuesday dismissed on technical grounds a plea against election to Anantnag parliamentary constituency saying pleas related to polls are filed only as "election petitions".  

Advocate Shams Khwaja from Uttar Pradesh who is contestingpolls from Anantnag Parliamentary Constituency as an independent candidate haspetitioned High court against the decision of chief returning officer Anantnagfor disallowing him to carry out the campaign.  

A bench of Justice Ali Muhammad Magrey dismissed the pleaafter hearing Khwaja who appeared in person and advocate S A Makroo on behalfof Election Commission of India.  

"It is held that the first proviso appended to Clause (b) ofArticle 329 of the Constitution of India does not affect the bar againstcalling in question an election to either House of the Parliament, except by anelection petition presented to such authorities and in such manner as has beenprovided by and under the Act of 1951 made by the Parliament," the court said, dismissingthe petition. 

Khwaja had filed the writ petition under Article 226 and 227of the Constitution of India seeking a 'Writ of Mandamus' to direct ElectionCommission of India through its Returning Officer to reschedule the pollingdate in respect of third phase of polling which was fixed for 6 May.

  After ECI decided tohold polls for Anantnag parliamentary constituency comprising of Anantnag,Kulgam, Shopian and Pulwama districts in three phases, he said the pollingdates for District Anantnag and district Kulgam were fixed on 23 and 29 Aprilrespectively.  For District ShopianPulwama, he said, the poll date was fixed as 6 May. 

Khwaja pleaded that on 25 April on the specific suggestionof the Returning Officer, he submitted his Election Campaign Program for theforthcoming next phase of Election for District Shopian and Pulwama and someareas of District Kulgam.  "On April26/27 I was informed by the Police Control Room that they are not allowing anypolitical movement in the District for reason of unrest," he said.

Khwaja submitted that he stayed at his base in Pahalgam andcould not campaign in District Kulgam for the 2nd Phase of polling  which was scheduled on 29 April. 

He submitted that "same yardstick was adopted by theReturning Officer and all the other authorities while denying him to campaignin the areas of District Shopian and Pulwama, by supplying the reasons ofsecurity concern". 

" Non-consideration of the petitioner's request for allowinghim to campaign in the areas of his choice, notified in advance, was brought tothe notice of the Nodal Officer, but of no benefit"

 Khwaja submitted thathis constitutional right was violated as he was not allowed a free movement forcampaigning in the constituency saying for this reason he has approached thiscourt in its extraordinary writ jurisdiction for judicial review of thedecision of the Returning Officer in rejecting his request for allowing him tocampaign in the area of his choice, which he states has been taken arbitrarily.

On behalf of ECI, advocate S A Makroo, besides contestingthe petition on merits, raised a preliminary objection with regard to themaintainability of the writ petition.

"Since, the very maintainability of the writ petition is inquestion, therefore, I deem it necessary to address the crucial questions oflaw that fall for determination," the court said.

The question that falls for consideration,  court added, was whether the Writ petitionunder Article 226 and 227 of the Constitution of India against the decision ofReturning Officer was maintainable. 

Eventually referring to the judgments of the Supreme Court,the Court ruled that the petition calling in question the decision of theReturning Officer would not lie, saying the same is held to be notmaintainable.

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