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2013 DIGILAW 446 (JK)

Gh. Mohd. Lone v. State Of J&K

2013-08-05

MUZAFFAR HUSSAIN ATTAR

body2013
1. As in earlier litigation, in this writ petition as well, the petitioner is persisting with his claim to the office of Sarpanch, Panchayat Halqa KP-299, Budnambal Payeen. 2. The case of the petitioner in the earlier round of litigation and in the present petition is that he was declared elected, having secured 262 votes as against the private respondent who secured 261 votes out of 532 polled votes. 09 votes were declared invalid. The certificate in this behalf was issued by the Assistant Returning Officer on 08th May, 2011. The case of the petitioner is that on the intervention of a stranger re-counting was conducted and one vote favouring the petitioner was rejected, thus, reducing the vote strength to that of 261 votes. The petitioner has pleaded that Form PEL-17, which pertains to statement of counting of the votes for Sarpanch of Panchayat Halqa KP-299, Budnambal, Payeen is forged document as the signature of the petitioner was obtained on the blank paper and later on entries were made in the columns, showing that petitioner and private respondent having secured equal number of votes viz. 261 each. 3. In view of the tie between the candidates, the private respondent was declared elected by draw of lots. 4. Petitioner filed Appeal against the said decision of Returning Officer before the Appellate Authority. The Appellate Authority dismissed the Appeal on the ground that petitioner has signed the Form PEL-17. Petitioner challenged the said Order in OWP NO: 307/2012, which writ petition was disposed of by the Court vide its order dated 31st October, 2012. The order of the Appellate Authority dated 3rd March, 2012 was set-aside. The Appellate Authority was directed to re- hear the case and pass orders in accordance with law. In the order of the Court, it was observed, that learned counsel for the respondents, in his fairness, admitted that there was no provision in Panchayat Raj Act and Rules for declaring the candidates successful to the office of Sarpanch by draw of lots. 5. Private respondent, the elected candidate, challenged the said order in LPA. No. 200/2012. The Letters Patent Appeal was disposed of on 22nd April, 2013, in which the order dated 31st October, 2012 passed by the Writ Court was maintained, though for the reason recorded in the Division Bench judgment. 5. Private respondent, the elected candidate, challenged the said order in LPA. No. 200/2012. The Letters Patent Appeal was disposed of on 22nd April, 2013, in which the order dated 31st October, 2012 passed by the Writ Court was maintained, though for the reason recorded in the Division Bench judgment. Before the LP Bench, reference was made to Clause-11 Chapter XIV of Handbook for conducting Panchayat Elections under Act of 1997, issued by Election Authority. It was canvassed at bar before the LP Bench that instructions have been issued under section 36 of the Panchayat Raj Act of 1989 read with Rule 3 of Panchayat Raj Act of 1996. LP Bench, however, did not return any finding on the issue raised and left it open for the Appellate Authority to decide the same as well. 6. The Appellate Authority dismissed the Appeal of the appellant vide its order dated 15th June, 2013, it is this order which is called in question in this writ petition. 7. Mr. B. A. Bashir learned Sr. Advocate, vehemently argued that the Returning Officer has not followed the procedure provided by law in conducting the election. Learned Sr. counsel further submitted that Rule 35 of Rules of 1996 provide for counting of votes and interms of Rule 36, procedure is provided for rejection of ballot papers. Learned Sr. counsel submitted that the Returning Officer, while rejecting the ballot papers, has not complied with the Rule 36 of Rules of 1996. 8. Learned counsel further submitted that Assistant Returning Officer declared the petitioner elected to the Office of Sarpanch of Panchayat Halqa KP 299, Budnambal, Payeen, but on the intervention of some stranger, recounting was ordered and one vote in favour of the petitioner was ordered to be rejected, which resulted in tie between the two candidates . Learned counsel submitted that the Returning Officer had neither power nor authority to settle the tie, by resorting to draw of lots, which act resulted in declaring the private respondent elected to the Office of Sarpanch of Panchayat Halqa KP-299 Budnambal, Payeen. Learned counsel extensively referred the judgment, which is placed on the writ record passed by this court in the earlier round of litigation. Learned counsel extensively referred the judgment, which is placed on the writ record passed by this court in the earlier round of litigation. Learned counsel submitted that in order to maintain the sanctity of the elections, this court shall intervene so as to instil confidence in the electorate and contesting candidates about the fair conduct of the elections. Learned counsel prayed for allowing of the writ petition. 9. Mr. G. A. Lone, learned counsel appearing for the elected candidate-private respondent submitted that the form-17 has, at no point of time, been challenged by the petitioner either in the first round of litigation or in this writ petition. Learned counsel submitted that presumption of correctness is attached to the Official Act and until such time the said form is challenged on proper, factual and legal grounds, the court cannot declare the document to be illegal, as same will not be in consonance with law. Learned counsel further submitted that in the Act of 1989 and Rules of 1996, there is no provision for settling the issue of tie between the competing candidates. Learned counsel submitted that the instructions issued by the Election Commission do deal with such situation. Learned counsel further submitted that in absence of the instructions issued by Election Commission and in absence of any provision in the Act of 1998 and Rules of 1996 for resolving the tie between the candidates, who have secured equal number of votes, an anomalous situation would be created, which in law, cannot be countenanced. Learned counsel referred to the judgment of the Hon'ble Supreme court in case titled A.C. Jose V. Sivan Pilla and others reported in AIR 1984 SC 921 and submitted that the Election Commission has power and Authority to pass orders in respect of conducting of elections, however, such orders cannot be passed in breach of provisions of Act and Rules made thereunder. Learned counsel submitted that Handbook instructions for Returning Officers is issued by Election Authority and there is a provision contained in Clause 15.19 (III) which provides that in case of tie viz. candidates securing the highest number of votes which are equal, the Returning Officer shall decide the winner by draw of lots, i.e. the candidates, on whom, the lot falls, shall be declared the winner. candidates securing the highest number of votes which are equal, the Returning Officer shall decide the winner by draw of lots, i.e. the candidates, on whom, the lot falls, shall be declared the winner. Learned counsel submitted that Returning Officer, in this case, followed the said instructions and lot fell on the private respondent, who has been declared the winner. Learned counsel accordingly prayed for dismissal of the writ petition. 10. Mr. R. A. Khan, learned AAG, submitted that in view of the Handbook instructions for Returning Officers, the power to settle the dispute by draw of lots between the candidates who secure equal number of votes is legal. Learned counsel further submitted that the Assistant Returning Officer has issued certificate on his own on which no reliance can be placed. Learned counsel prayed for dismissal of the writ petition. 11. In view of the material placed on writ record by the petitioner, it, prima-facie, appears that he had secured 262 votes. In order to meet out justice, the court directed for production of record. The rejected votes, earlier were only nine and after re-counting their number swell to ten, reducing the vote strength of petitioner to 261. The boxes, in which, votes were kept, were ordered to be opened by the Registrar Judicial in presence of Returning Officer, petitioner and private respondent as also the Associate counsels of learned Senior counsel appearing on either side. The ten rejected votes were examined by the Court. Seven ballot papers were found blank. In two ballot papers, seals were affixed in the blank spaces. The vote, which was rejected in re-counting, was shown to the learned counsel for the parties in the open court. The seal has been affixed by the voter on the said ballot paper on the place which is equi-distant from the name and election symbol of both parties. This vote has, thus, been rightly rejected. 12. The Registrar Judicial was directed to keep the rejected votes in the box in presence of Returning officer, petitioner and private respondent and lock the same and handover the keys to the Returning Officer and return the box to him. 13. The Assistant Returning Officer issued certificate in favour of the petitioner, wherein it was shown that petitioner has secured 262 votes. Whole hog reliance has been placed on this certificate by the petitioner in the writ petition. 14. 13. The Assistant Returning Officer issued certificate in favour of the petitioner, wherein it was shown that petitioner has secured 262 votes. Whole hog reliance has been placed on this certificate by the petitioner in the writ petition. 14. Rule 35 of Rules of 1996, which deals with counting of votes and declaration of results, is taken note of: "...35. Counting of votes. (1) Subject to any further directions issued by the Election Authority in this behalf and after the polling hours, the Returning Officer or the Assistant Returning Officer shall in presence of the candidates or their agents as are present on spot open the ballot box and start counting of the votes. (2) No other person shall be allowed to be present at the counting of votes except those whom the Returning Officer may appoint to assist him in the task. (3) The Returning Officer shall allow such candidate or his agent reasonable opportunity to inspect, without handling the ballot papers which he considers to be liable to rejection. (4) The Returning Officer may in his discretion or on the request of the candidate or his authorized agent recount the ballot papers of all or any of the candidates once or more than once, if he is not satisfied as to the accuracy of proceeding count and shall declare the results thereafter on spot..." 15. Sub Rule (4) of Rule 35 authorises the Returning Officer to order for recounting of the ballot papers, which he may do in his discretion or on the request of candidate or his authorized agent. It is also in the discretion of the Returning Officer to direct for counting of votes either once or more than once, if he is not satisfied about accuracy of count. The Returning Officer is under statutory obligation to declare the results on spot. 16. Rule 35, thus, makes it abundantly clear that it is the Returning Officer, who alone is authorized to declare the result. The Assistant Returning Officer is authorized to open the ballot box and start the counting of votes. Sub Rule (1) of the Rule 35 alone makes reference to Assistant Returning Officer. The Assistant Returning Officer has no other role to perform in the counting of votes and declaration of results, the certificate issued by Assistant Returning officer is inconsequential in law and no reliance can be placed on it. 17. Sub Rule (1) of the Rule 35 alone makes reference to Assistant Returning Officer. The Assistant Returning Officer has no other role to perform in the counting of votes and declaration of results, the certificate issued by Assistant Returning officer is inconsequential in law and no reliance can be placed on it. 17. The other issue which now requires to be decided in this writ petition is as to whether the Appellate Authority in view of earlier round of litigation and the order passed by the writ court and LP Bench, could hold, that the tie could be resolved by resorting to draw of lots. The writ court in earlier round of litigation had no occasion to consider the impact of Handbook of Returning Officer issued by Election Authority as same was not brought to its notice by either of the parties or their learned counsel. The writ court had observed in order dated 31st October, 2012 that learned counsel for the respondent fairly conceded that there is no key in Act of 1989 and Rules of 1996 for resolving the tie between the competing candidates. The issue, however, was raised before the LP Bench. The LP Bench, in its order did not deal with the same and left it open for the Appellate Authority to consider the same. The LPA Bench while observing that the instructions issued by the Election Authority having not been challenged in the writ petition cannot be considered and left the question open to be decided as and when the same is raised in the proper proceedings. 18. The Appellate Authority in impugned order has stated that the said issue was not debated, so he could not return the findings on it. The Appellate Authority further observed that, otherwise, also he would not return findings on the Handbook of instructions, which is issued by Election Authority. The Appellate Authority held that the private respondent has been rightly declared elected to the office of Sarpanch and dismissed the Appeal. 19. In view of the law laid down in A. C. Jose's case, it is held that Election Authority's instructions to resolve the tie between the two candidates, who have secured highest number of equal votes by draw of lots is legal and permissible method. 19. In view of the law laid down in A. C. Jose's case, it is held that Election Authority's instructions to resolve the tie between the two candidates, who have secured highest number of equal votes by draw of lots is legal and permissible method. There is no provision either in the Act of 1989 or in the Rules of 1996, which prescribes the method and/ or prohibits evolving a method for resolving the tie between the two competing candidates having secured highest votes which are equal in number. The Election Authority, thus , has power to issue the instructions for resolving the tie. 20. Paragraph 15.19 of Handbook for Returning Officers dated June, 2010 issued by Election Authority under Panchayati Raj Act, 1989 is taken note of: "...Counting of votes for election of Sarpanch. i. After the counting of votes has been completed for all the Constituencies (for election of Panches) and results declared, the Returning Officer shall proceed to undertake counting of votes for the Sarpanch. For this purpose he will first get all the coloured/pink wave ballot papers (received from all the ballot boxes and kept in the separate receptacle meant for this purpose), properly mixed, so that the ballot papers from one constituency/polling station cannot be distinguished from secrecy of the votes from different villages and constituencies. After completing this work; the Returning Officer shall count the number of the bundles and check that the total number of ballot papers tallies with the arithmetical total of all the ballot paper accounts recorded by the Counting Supervisors of different Constituencies. In case of any discrepancy, the number of ballot papers contained in each bundle shall have to be checked again. ii. After the Returning Officer has satisfied himself about the correctness of the number of ballot papers and noted down any discrepancy, which still remains, he will take up counting of votes by taking up the bundles in lot of 10 bundles taken out at random. The process for counting of votes for the constituencies of Panches, explained in the preceding paras shall be repeated in respect of each lot of 10 bundles, entries shall be made in a counting sheet in the format given as Form PEL 17. The process for counting of votes for the constituencies of Panches, explained in the preceding paras shall be repeated in respect of each lot of 10 bundles, entries shall be made in a counting sheet in the format given as Form PEL 17. If the candidates/election agents present want to note down the number of the votes received by each candidate at the end of each round of 250 vote, they may be permitted to do so. At the end of all such lots of bundles, the lost lot of bundles containing 10 bundles or less, including the bundle containing less than 25 votes shall be taken up. After all the lots of bundles have been counted, the totals of all rounds of counting shall be added up for each candidate and the result declared. iii. In case of a tie- if the votes obtained by two candidates securing the highest number of votes are equal, the Returning Officer shall decide the winner by draw of lot i.e. the candidate on whom the lot falls, shall be declared the winner. iv. in order to avoid confusion the Returning Officer must ensure that the counting for all only one Panchayat Halqa is taken at a time and after finishing it only the next Halqa is taken up..." 21. In this case, the tie has been resolved by draw of lots. The lot has fallen on the private respondent and has been rightly declared to be elected. 22. For the above sated reasons, the writ petition alongwith connected IA's is dismissed.