HC declines plea against re-polling in DDC Constituency Hajin-A

 J&K High Court, Srinagar
J&K High Court, SrinagarMubashir Khan/GK File

Srinagar: The High Court of J&K and Ladakh Monday declined a plea challenging notification on re-polling in District Development Council(DDC) Constituency Hajin-A.

Notably, the re-poll for the north Kashmir’s DDC constituency   was held today.

The petitioner  Abida Afzal, had among others challenged the State Election Commission's(SEC’s) powers to issue the notification on November 16 this year calling for the re-election.

The SEC had actually issued a notification on 29th October, 2020, for conduct of General Elections to the DDCs including for Hajin-A. While the results of the elections relating to 13 out of 14 DDCs of District Bandipora, were declared, the result of DDC Constituency Hajin-A was withheld because nomination form of one of the candidates of the constituency, Mst Shazia, was found to have been improperly accepted for being not a citizen of India.

A bench of Justice Sanjay Dhar  after heraing the parties dismissed the plea as “devoid of merit”.  “The first contention raised by the petitioner is that (State Election Commission), does not have jurisdiction either to declare the polling as void or to direct re-polling…. From perusal of the (Section 36 of the Panchayati Raj Act), it is clear that the power of superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections under the Act vests with the SEC,” Court said.Underscoring  that the provisions contained in Section 36(1) of the Panchayati Raj Act are akin to the provisions contained in Article 324 of the Constitution of India, the court said the SEC is vested with the power to issue all such directions as are necessary for the conduct of elections in a fair and transparent manner. “This would certainly include the power to declare a poll void and the power to order re-polling”.   Pointing out that even though there is no blanket bar to the judicial review of decisions made by an Election Authority, the Court said: “It is only those decisions which have the effect of retarding, interrupting, protracting or stalling the completion of election process that can be challenged in the writ jurisdiction.”

“Challenge is also maintainable in a matter where a clear case of mala fides on the part of Election Authority is made out. Thus, anything done towards completion of election process cannot be challenged before the High Court and it is only if it is shown that the Election Authority has exercised its power arbitrarily and such action has the effect of stalling the election process, the same can be challenged by way of a writ petition,” the court said.

The court observed that by virtue of the notification on November 16, SEC had not stalled the election process saying rather it had taken a step towards completion of the election process.

“It has already been held that (SEC) has vast powers under Section 36 of the Panchayati Raj Act read with Rule 108-ZM of the Rules to pass any order for smooth conduct of the election,” it said.

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