Nazir Hussain vs State Of Jammu & Kashmir & Ors

Dhiraj Singh Thakur, J

Petitioner challenges order dated 14.09.2019 passed by the Additional Deputy Commissioner, Poonch as the appellate authority under the Jammu and Kashmir Panchayati Raj Act, 1989.

It appears that the petitioner was declared elected as a Panch for Panchayat Halqa, Gali Pindi. The margin of victory of the petitioner was only two votes. Whereas the petitioner got 63 votes, the respondent No. 3 got 61 votes. It was in those circumstances that an appeal came to be preferred before the appellate authority, in which, it was inter alia stated that despite a plea for recounting made to the Returning Officer, the recounting was not so ordered.

It was urged that the counting of the votes was not done in a hassle free manner and that there was no electricity at the counting centre when the counting took place. It was urged that despite an objection having been raised by the appellant, the votes were not shown to the appellant.

Appellate authority upon the appeal having been filed called for the report from the Returning Officer, who denied the allegations made in the memo of appeal. However, the appellate authority upon an overall consideration of the matter and keeping in view the fact that the margin of victory was very thin, decided to order recounting under the overall supervision of a Committee.

Learned counsel for the petitioner is aggrieved of the order of the appellate authority. It was urged that the only reason why the appeal has been allowed is the thin margin of victory of the petitioner over respondent No. 3, which, according to him, was a ground untenable, in law, for ordering such recounting.

Heard learned counsel for the parties.

On a reading of Section 35 of the Panchayati Raj Rules 1996 (for short the Rules of 1996), it can be seen that the Returning Officer has been given the discretion to recount the ballot papers of any of the candidates once or more than once, if request is made by a candidate or his authorized agent if they are not satisfied, as regards, the accuracy of the preceding count.

The recounting, therefore, can be ordered on the mere asking of the candidate or his authorized agent without any formal determination either by the Returning Officer himself or on the request of the candidate or his authorized agent.

On a reading of the memo of appeal, it appears that the appellant had specifically stated that a request was made for recounting of the votes and the reasons for such a recounting were also enumerated. The appellate authority, therefore, was within its rights to order such a recounting if in his opinion, the same warranted a recount.

All powers which are otherwise exercisable by the Returning Officer could be exercised by the appellate authority in terms of Rule 43 of the Rules of 1996. In my opinion, the view expressed by the appellate authority to order recounting of votes on account of the thin margin of victory, taken in the backdrop of the averments made in the memo of appeal, did justify such an order.

Having gone through the order impugned, in my opinion, the same cannot be said to be either illegal or perverse which would warrant interference.

This petition is found to be without any merit and is, accordingly, dismissed along with connected CM.