Jammu & Kashmir High Court - Srinagar Bench
Chairman Election Board vs Union Territory Of J&K & Ors on 1 March, 2021
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
Item No. Supp. List 101
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CrlM No. 200/2021 in
CRM (M) No. 68/2021
CrlM No. 201/2021. c/w
Caveat No. 245/2021.
Chairman Election Board. ...Petitioner(s)
Through: Mr. Parvaiz Nazir, Advocate
V/s
Union Territory of J&K & Ors. ...Respondent(s)
Through: Mr. I. A. Sofi, Advocate.
CORAM: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE (ORDER) (Open Court) Notice.
Mr. I. Sofi, Advocate, who is on caveat enters appearance and waives notice on behalf of the respondent Nos.3 & 4.
Caveat discharged.
1. The instant petition has been filed under Section 482 Cr. P.C, for quashing the order dated 29th January 2021, passed by the Executive Magistrate 1st Class, Handwara, as also the order dated 11th February 2021, passed by the Additional Sessions Judge, Handwara. Briefly, stated the facts are as under:
2. Traders Federation, Handwara, is an organization which is stated to be duly registered with Deputy Commissioner under the Trade Unions Act, 1962. Bylaws have been framed for the conduct of business of the federation which, inter alia, envisages elections of the body including Chairman, whose tenure is fixed at three years. The elections are to be conducted after every three years. It appears that since the last elections were held in the year 2017, the three years tenure of the elected members has since come to an end. It appears that a resolution was passed on 19.11.2020, presided over by the erstwhile President, Aijaz Ahmad Sofi, nominating the petitioner herein as Chairman along with 10 other members as an election body to conduct the smooth elections of the said federation.
3. It appears that members of the federation, being aggrieved of the inaction of the election body so constituted, approached Deputy Commissioner, Kupwara, with a complaint that elections were not being held as per the duty entrusted. The case set up by them was that out of 11 members, 9 had since resigned and have refused to repose confidence on the nominated Chairman, the petitioner herein. The members also expressed that that there would be breach of peace, and law and order situation could be created and, therefore, approached the Executive Magistrate with a prayer to exercise powers under Section 133 Cr. P.C. The Executive Magistrate, being satisfied that there would be possibility of a law and order situation as also considering the strength of members of the federation which was around 1200 ordered that possession of the office of Traders Federation be handed over to the new election body till the election was conducted with a direction to the Station House Officer, Handwara, to ensure that no breach of peace occurred in that regard.
4. A Revision petition came to be preferred against the order of the Executive Magistrate, by the petitioner herein under Section 397 2 Cr.P.C. The revisional court initially vide order dated 7th February 2021, stayed the proceedings before the Executive Magistrate and called the records and finally vide impugned order dated 11.02.2021, while setting aside the order of Executive Magistrate 1 st Class, issued directions to hold fresh elections within a period of 15 days with the aid and assistance of Assistant Labour Commissioner, Handwara, under the supervision of Executive Magistrate 1st Class.
5. Counsel for the petitioner states that the entire procedure adopted is perverse in law. It is urged that the Executive Magistrate in the first instance ought to have passed a preliminary order and if there were objections to the same by any person including the petitioner, then before making the same absolute, an opportunity of being heard should have been granted to the petitioner in terms of the procedure, prescribed under Section 133 Cr.P.C. This procedure, it was stated, was not at all followed by the Executive Magistrate who had proceeded to issue final directions which were in gross violation of the procedure envisaged under Section 133 Cr. P.C.
6. It is further contended that the revisional court compounded the illegality to the extent that on the one hand while directions, issued by the Executive Magistrate, were set-aside, while on the other hand it committed an error in issuing directions for conduct of elections. It was urged that the revisional court could not have issued any direction for conduct of elections and the only issue before the court was regarding legality and propriety of the order, passed by the Executive Magistrate. Reliance in this regard is placed upon Madras High Court 3 in Mohan Pradeep v. The District Revenue Officer (W.P. No. 33353 of 2017), decided on 29th January, 2018.
7. Heard counsel for the parties.
8. It is true there is the order framed by the Executive Magistrate, was not strictly in compliance with the provisions of Section 133 Cr. P.C, and it was only for that reason that the same was set aside by the revisional court. What is important here is the genesis of the problem which led to the passing of the earlier order by the Executive Magistrate and subsequently by the revisional court. Admittedly the tenure of the President, Aijaz Ahmad Sofi, has come to an end having completed 3 years, as such. In the resolution dated 19 th November 2019, the mandate of the nomination of the petitioner as Chairman along with 10 others was limited for the purpose of conduct of elections. Learned counsel for the petitioner states that elections could not be conducted immediately because of non-reconciliation of the accounts by the erstwhile President inasmuch as it is only after the accounts are settled and elections are to be held with a view to prevent liability of misappropriation being passed from the erstwhile President to the new president.
9. Notwithstanding the above, it can be seen that the revisional court while setting aside the order passed by the Executive Magistrate, proceeded to issue directions for conducting fresh elections with the aid and assistance of the concerned Labour Commissioner and under the supervision of Executive Magistrate 1st Class, Handwara. In the ordinary course, the 4 petitioners' concern with regard to the conducting of fresh elections in a fair and transparent manner have been taken care of by the revisional court inasmuch as there was no other mandate given to the petitioner than supervising the conduct the fresh elections. The petitioner does not have any right to continue as Chairman by law except in the limited capacity as Chairman of the Election body. Since the entire controversy pertained the conduct of elections, I see no purpose in setting-aside the order impugned dated 11th February 2021, as it would only aggravate the problem and continue the uncertainty, especially considering the fact that allegedly 09 members out of 11, earlier nominated by virtue of resolution dated 19th November, 2017, appear to have resigned from their positions. Be that as it may, I find no reason to interfere with the order impugned. The petition is, found without merit and is, accordingly, dismissed along with connected CM(s).
(DHIRAJ SINGH THAKUR) JUDGE Srinagar 1st March, 2021.
"Ab. Rashid"
Whether the order is reportable: Yes/No. 5 ABDUL RASHID GANAI 2021.03.02 23:58 I attest to the accuracy and integrity of this document