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2013 DIGILAW 181 (JK)

Krishan Lal v. State

2013-04-03

MUZAFFAR HUSSAIN ATTAR

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1. A post of Sarpanch in Panchayat Halqa Chandu Chak, Block & Tehsil R.S.Pora, Jammu, has become bone of contention between the petitioner and the private respondent. The petitioner was declared elected by a margin of two votes. The private respondent filed an Appeal before the Appellate Authority against the order of declaring the petitioner successful in the elections. 2. The Appellate Authority, while rejecting some contentions of the private respondent, permitted for recounting of the votes. On examination of the rejected votes, it was found that three properly polled votes were kept along with the rejected votes. Those three votes had been cast in favour of the private respondent, who, on addition of those votes, was declared elected as Sarpanch by a margin of one vote. It is this order which is called in question in this writ petition. 3. In view of the material available on the writ petition, a total of 1062 votes were polled. The petitioner had secured 306 votes and the private respondent had secured 304 votes. One Shri Surjit Singh secured 267 votes and Shri Naresh Kumar secured 166 votes. 4. Learned counsel for the petitioner submitted that the rejected votes could have not been considered as the certificate, in terms of rule 36(3) of Jammu & Kashmir Panchayati Raj Rules, 1996, has not been recorded on them. Learned counsel also referred to CMA 1499/2012 along with which he has placed on record the interim orders passed by the Appellate Authority. Learned counsel referred to interim order dated 10-09-2011 and submitted that the record of election was produced before the Appellate Authority but it is not mentioned as to whether the said record was sealed or not. Learned counsel also referred to interim order dated 23-09-2011 and submitted that on that date the record was examined and it is for the first time it was found that three valid votes were wrongly rejected. Learned counsel submitted that since the interim order dated 10-09-2011 did not show that the record was sealed on that date so no reliance can be placed on the votes which are described as rejected votes. He also submitted that this court directed for production of record which record, in the custody of the officials of the department, was allegedly found to be not in a sealed envelope. He also submitted that this court directed for production of record which record, in the custody of the officials of the department, was allegedly found to be not in a sealed envelope. Learned counsel submitted that some photographs were taken which have been enclosed with the application which he has now filed. 5. Record of the election was produced before the Appellate Authority and was opened. The rejected votes alone were checked/examined and in the bundle of rejected votes, three validly polled votes were also found. It is nobody's case that any of the rejected vote was ordered to be counted in favour of the private respondent. The verification of the rejected votes did show that properly polled three votes were also tagged with them. The three votes, admittedly, were not rejected votes. So there was no requirement of recording any certificate on them in terms of rule 36(3) of Jammu & Kashmir Panchayati Raj Rules, 1996. It was the duty of the Appellate Authority or even the Returning Officer to ensure that properly polled votes are counted. A valid result in an election can be declared only after counting the properly polled votes. 6. In this case three properly polled votes were not counted. It was the mistake of the Returning Officer and Counting Agents. A duty was, thus, cast on the authorities to ensure that properly polled votes are counted, which alone would become the basis for declaring a candidate legally elected. Contention of the learned counsel for the petitioner that in absence of certificate recorded in terms of rule 36(3) of Jammu & Kashmir Panchayati Raj Rules, 1996, is, accordingly, rejected. Another contention of learned counsel for the petitioner that when the record was produced before the Appellate Authority on 10-09-2011, same was not sealed, cannot be accepted in view of the interim order dated 23-09-2011, which provides that the record from the Block Development Officer's Office was opened and rejected votes checked. Opening of the record would mean that it was sealed. The photographs which have been enclosed with the application, which has not been entertained by the Court, is a post ad-litum event and will have, thus, no bearing on the merits of the case. 7. For the above stated reasons, this writ petition is dismissed along with connected CMPs. Opening of the record would mean that it was sealed. The photographs which have been enclosed with the application, which has not been entertained by the Court, is a post ad-litum event and will have, thus, no bearing on the merits of the case. 7. For the above stated reasons, this writ petition is dismissed along with connected CMPs. The petitioner is saddled with costs of Rs.10,000/- (Rupees ten thousand) to be deposited with the Deputy Commissioner concerned within two weeks from today. The Deputy Commissioner concerned to spend the same on the welfare of orphaned children of the area. 8. Record returned to Ms. Z.S.Watali, Dy.AG, in the open Court.