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2019 DIGILAW 512 (JK)

Shamim Akhter v. Union Territory of J&K

2019-12-28

RAJESH BINDAL

body2019
ORDER : 1. The petitioner has approached this Court impugning the order dated 23.9.2019 passed by Additional Deputy Commissioner, Poonch/appellate authority whereby the appeal filed by her challenging the election of respondent No. 6 as Sarpanch of Panchayat Halqa Dhandi Dara, Tehsil Surankote, District Poonch was disposed of while directing recounting of votes. 2. Learned counsel for the petitioner submitted that while challenging the election, the petitioner never prayed for recounting of the votes. Her grounds of challenge were altogether different. Those have been enumerated in the election petition specifically and have even been noticed by the appellate authority in the order impugned, but still not dealt with. All these grounds go to the root of the case where the persons settled abroad have been shown to have casted their votes, besides the dead persons. Some persons simultaneously casted their votes in different wards at the same time. He further submitted that the order passed by the appellate authority directing recounting of votes may be set aside and the matter be remitted back to be considered on the grounds raised by the petitioner. 3. Learned counsel for the respondent No. 6 submitted that he does not have any objection to the setting aside of the order passed by the appellate authority as far as it directs for recounting of votes. However, he submitted that for other issues as the appeal has already been dismissed by the appellate authority, the matter may be adjudicated upon by this Court, after he files objections to the present petition. 4. Heard learned counsel for the parties and perused the paper book. 5. It is a case, in which the petitioner filed election petition challenging the election of respondent No. 6, while raising the grounds which have been briefly noticed by the appellate authority in the impugned order. 6. The grounds raised by the petitioner in the election petition read as under : “(a) That 09 Polling Stations were installed in Panchayat Dhandi Dara Tehsil Surankote District Poonch. (b) That every voter shall have only one vote to cast and several voters have voted twice in W. No. 5 and 9. (c) That 24 persons who are settled in abroad casting their votes when they were not physically present in the area and request for re-poll of the election. (b) That every voter shall have only one vote to cast and several voters have voted twice in W. No. 5 and 9. (c) That 24 persons who are settled in abroad casting their votes when they were not physically present in the area and request for re-poll of the election. (d) That one Tazeem Akhter D/o Atta Mohd who is electoral of Panchayat Halqa Gunthal after been married to a person of Upper Gunthal Panchayat cast her vote twice. One in Pyt. Dhandi Dara at S. No. 124 W. No. 2 and second in Pyt. Gunthal. (e) That respondent No. 3 in violation of Rules and with oblique motive has illegally accepted void votes. (f) That respondent No. 4 is daughter-in-law of ration dealer of village Dandi Dan who has distributed the ration to the voters of the area to influence to secure their votes in her favour.” (sic) 7. A perusal of the aforesaid grounds show that the allegation was that votes of 24 persons, who are settled abroad have been shown to have casted their votes. One Tazeem Akhter who is electoral of Panchayat Halqa Gunthal has casted her vote twice, namely one in Panchayat Dhandi Dara at S. No. 124 W. No. 2 and second in Panchayat Gunthal. 8. While not discussing any of the grounds raised by the petitioner in the election petition filed, the appellate authority merely directed for recounting of votes. That will not resolve the issues raised by the petitioner. 9. Relevant provisions of Section 43 of J&K Panchayati Raj Act, 1989 and Rule 17 of J&K Panchayati Raj Rules read as follows:- “Section 43. Disputes regarding elections.— (1) The election of a person as Sarpanch, Panch of a Halqa Panchayat or as a Chairperson of the Block Development Council shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the grounds that:- (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election; or (b) that the result of the election has been materially affected— (i) by the improper acceptance or rejection of any nomination; or (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder.” “Rule 17. Right to vote.— (1) No person whose name is not entered in the Electoral Roll pertaining to the constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is not qualified to vote under the provisions of the Act. (3) Every voter shall have only one vote. (4) Every vote shall be cast by the elector in person and not by proxy or by post.” 10. A perusal of the provisions of the Section 43 of the Act clearly shows that one of the grounds, on which the election can be set aside is the gross failure to comply with the provisions of the Act and the Rules framed thereunder. Rule 17 of the Rules clearly provides that every voter can cast his vote once and the vote has to be casted in person not by proxy or by post. 11. In the case in hand, casting of votes by the persons who were not physically present and were living abroad and further casting of vote by one voter in two different constituencies at the same time, certainly violates provisions of law and effect the election. This issue was required to be gone into by the appellate authority in detail. Having failed to do so, he has not exercised the jurisdiction vested in him. 12. For the reasons mentioned above, the impugned order dated 23.09.2019, is set aside. The appellate authority is directed to decide the election petition filed by the petitioner afresh while dealing with the grounds raised by her specifically. The issue of recounting of votes is not required to be gone into in the case in hand as that is not the ground on which the election was challenged. 13. The parties are directed to appear before the appellate authority on 09.01.2020 for further proceedings. 14. The writ petition is disposed of, accordingly.