Lone vs State of JandK and Others

Ali Mohd. Magrey, J.â€"Appellant admittedly participated in election to the office of Sarpanch, Panchayat Halqa ""KP-299"", Budnambal Payeen,

Kralpora, Kupwara held on 08.05.2011. He claims to have secured 262 out of 532 votes polled in the election as against 261 votes secured by

his immediate opponent-Abdul Subhan Lone, who has been formally declared elected, notwithstanding Assistant Returning Officer earlier declaring

appellant elected as Sarpanch of Panchayat Halqa, in question. It is stated that after the petitioner was declared elected by the Assistant Returning

Officer, the Authorities, on intervention of someone not associated with conduct of elections, went for a recount, rejected one of the votes cast in

his favor, reducing his tally to 261 votes, and declared his opponent elected on the strength of draw of lots. Aggrieved with the declaration made

by the Returning Officer, appellant filed an appeal before the Appellate Authority. The Appellate Authority found no merit in the Appeal on the

ground that the Appellant having signed the Form PEL-17 was not competent to maintain the appeal. Not satisfied with outcome of Appeal,

appellant approached Writ Court with a writ petition, being OWP 306/2012 wherein Abdul Subhan Lone one of the respondents in present LPA,

figured as respondent No. 8. The writ court held that there was no provision in the Panchayat Raj Act and Rules made there-under for declaring a

candidate successful by draw of lots, and accordingly allowed writ petition and set aside order of Appellate Authority dated 3.3.2012. The

Appellate Authority was directed to re-hear the appeal and dispose it of in accordance with law.

The writ court Judgment dated 31.10.2012, was questioned in Letters Patent Appeal, registered as LPA No. 200/2012. The LPA Bench

upheld the writ court Judgment, though on the grounds other than the grounds relied upon by the writ court. The Appellate Authority, was asked to

deal with and dispose of the appeal as directed by the writ court in accordance with law.

The Appellate Authority dismissed the Appellant's Appeal vide order dated 15th June 2013. The Appellate Authority took the view that as on

recounting, one vote added to the tally of appellant was found to be invalid and therefore subtracted from number of votes earlier held to have

been secured by him, the number of votes polled by him therefore came down to 261 and resulted in a tie between appellant and Shri Abdul

Subhan Lone respondent No. 3 in the appeal. It was further held that in terms of Para 11 Chapter XIV, viz. counting of votes, of the Handbook

for Conduct of Panchayat Elections 1997, draw of lots was the only option available to the Returning Officer and the said method was used with

the consent of the appellant and that as the lot fell in favour of respondent No. 3, he was rightly declared elected and a certificate in Form PEL 16

issued in his favor. The Authority noticed that recounting was asked for by the appellant and the Returning Officer in exercise of power under Rule

35(4) of J & R Panchayat Raj Rules, 1996 directed recounting and that it was done in presence of appellant, under supervision of Returning

Officer as also the Counting Supervisor. It was further observed that the appellant did not object to the rejection of the vote and also it was

appellant who asked for draw of lots. The Appellate Authority concluded that recounting, draw of lots and declaration of results did not suffer

from any irregularity. The appeal was accordingly dismissed.

The Appellate Authority order dated 15.6.2013, was assailed in writ petition registered as OWP No. 817/2013. It was pleaded that as the

appellant after securing 262 votes out of 532 polled votes was declared elected by the Assistant Returning Officer on 8th May 2011, there was no

reason for recounting and much less declaring respondent No. 6 elected as Sarpanch, of Panchayat Halqa in question. The details of counting in

Form PEL-17, according to the Appellant is a piece of forgery and could not have been relied upon to declare respondent No. 6 elected. It is

insisted that the Returning Officer did not adhere to Rules 35 and 36 Panchayat Raj Rules 1996, while rejecting one of the votes cast in appellant's

favor.

The averments made in the writ petition were vehemently controverted by the Respondents. The Respondents pleaded that the election was

held in accordance with Rules and in particular Clause 15.19(III) Handbook of instructions for Returning Officer. It was pleaded that one vote

earlier counted in favor of appellant was rightly rejected on recounting.

The writ court while dealing with the writ petition asked for production of record. The writ court examined ten votes rejected by the Returning

Officer. It may be recalled that before recounting nine out of 532 polled votes were found to be invalid and therefore rejected. On recounting, one

more vote, earlier added to the credit of appellant was found to be invalid inasmuch as the voter had not put the seal on the name of either of the

contestants, so as to indicate his preference and the candidate in whose favor the vote was cast. The seal was put in the middle of the ballot paper,

equidistant from names of the contestants. On examination of record, writ court found the vote was to have been rightly rejected. The writ court

held the rejection to be within four corners of Rule 35 sub rule 4. It was further held that the Assistant Returning Officer in terms of Rules of 1996,

did not have any role in the counting of votes or declaration of results. Reproducing Para 15.19 Handbook for Returning Officers issued by

Election Authority, Panchayat Raj Act 1989, the writ court held that the draw of lots was the only option available to the Returning Officer, in the

event of a tie between two contestants. The writ petition was accordingly dismissed on 5th August 2013.

The writ court judgment is questioned in Letters Patent Appeal on hand on the grounds set out in the memo of Appeal. We have gone through

the memo as also the writ court order. We have heard learned counsel for the parties.

A closer look on the ground urged would reveal that these are merely reiteration of his stand before the Appellate Authority and the writ court,

while assailing the order of Returning Officer, whereby respondent No. 6 was declared elected. It is repeated that after appellant was duly

declared elected as Sarpanch by Assistant Returning Officer on 08.05.2011, no scope was left for recounting, otherwise done at the instance of a

stranger to the election process and without his consent and that one vote earlier credited to him was unjustifiably rejected by the Returning

Officer.

The first and foremost question that would call for an answer is whether the appellant as claimed by him, was declared elected as Sarpanch,

Panchayat Halqa ""KP-299"", Budnambal Payeen Kralpora, Kupwara in accordance with the Panchayat Raj Act and Rules made there-under. The

appellant's case all along has been that he was declared elected as Sarpanch by the Assistant Returning Officer. A bare perusal of the Panchayat

Raj Act and Rules made there-under would reveal that Assistant Returning Officer is not clothed with the power to declare result of election or

declare a candidate to have won the election.

The power of Assistant Returning Officer as rightly pointed out by Learned Single Judge, is restricted to opening of the ballot box and

commencement of vote count. Once, the ballot box are opened and counting commences, the Assistant Returning Officer is pushed to back seat

and rest of the decisions including one allowing reasonable opportunity to a candidate or his agent to inspect the ballot papers found liable for

rejection, directing a recount of the ballot papers etc are to be taken by the Returning Officer. The Returning Officer has exclusive power to

declare result of counting in prescribed Form (PEL-17). So viewed the appellant's case is that he was declared elected as Sarpanch by Assistant

Returning Officer is devoid of any merit. Once it is held that the Assistant Returning Officer, was not competent to declare result, we are to

proceed to hold that it was open to Returning Officer to order a recount.

It is pertinent to point out that the power of Returning Officer to order recount, is not restricted to or contingent upon request or consent of one

of the candidates. Rule 35(4) Panchayat Raj Rules 1996, gives discretion to Returning Officer to order recount even without such a request from

any of the candidates or his authorized agent. The only rider on the power to direct recount is that the Returning Officer must nurse a doubt (not be

satisfied) as to the accuracy of the preceding count or first count. In other words, wherever the Returning Officer has a doubt about accuracy of

the vote count, he may in his discretion direct recount.

In the present case, the record would reveal that recount has been directed at the request of appellant. Even, if, it is assumed that such a

request was not made, the Returning Officer was well within his power to direct recount. The appellant's grievance in this regard therefore, is

without substance. The decisions taken by the Returning Officer to recount is justified by the results of the recount. On recounting one of the votes

was found to have been wrongly credited to the vote account of appellant. The writ court had an opportunity to examine the rejected ballot

papers. It on examination found the ballot paper to have been rightly rejected as invalid because the voter had not put seal on the identified place,

but in the middle of ballot papers. In such circumstances, it was not clear as to in whose favour the vote was cast. It was therefore not permissible

to add the rejected vote to the vote account of either of the contestants. Once the order to reject one of the ballot papers, earlier added to the vote

account of the appellant is held to be in accordance with rules, it is next to be seen as to what where the options left with the Returning officer.

Para 15.19 Handbook for Conduct of Panchayat Election to Returning Officer issued by the Election Authority under Panchayat Raj Act

1989, extracted by learned Single Judge, has the answer. In the eventuality of tie between two contestants the Returning Officer is to decide the

winner by a draw of lots and a candidate on whom the lot falls is to be declared as winner. This is exactly what has been done by the Returning

Officer.

The writ court, therefore, did not find any merit in the appellant's stand that draw of lots was not an option available under rules and that the

declaration of results was not in conformity with the Panchayat Raj Act 1996, and Rules made there-under. The writ court has dealt with all the

aspects of the controversy with necessary detail and considered one by one all the grounds urged to reinforce the claim. The conclusion drawn by

the writ court, from a frank and fair discussion of case projected, cannot therefore be faulted on any ground.

We against above backdrop do not find any reason whatsoever, to take a view different from one taken by the Learned Single Judge.

Letters Patent Appeal is accordingly dismissed and order of Learned Single Judge upheld. Dismissed.