JUDGMENT : 1. In the instant petition, petitioner is seeking quashment of the order dated 02.02.2021 passed by Appellate Authority (Additional Commissioner, Kashmir) notified under the Jammu and Kashmir Panchayati Raj Act, 1989 read with Jammu and Kashmir Panchayati Raj Rules, 1996 (for brevity ‘the Act of 1989’ and ‘the Rules of 1996’) respectively and a consequent order dated 03.02.2021 passed by District Panchayat Election Officer, Anantnag. 2. The petitioner herein earlier filed a writ petition bearing WP(C) No. 176/2021 seeking therein quashment of order dated 020.02.2021 (supra), however, after filing of the instant petition i.e., WP(C) No. 301/2021 the petitioner sought withdrawal of WP(C) 176/2021, by laying a motion being CM No. 1341/2021, on the ground that the said petition has become infructuous on account of recounting of the votes undertaken by the Election Authority. Upon coming up for consideration of the said application on 08.03.2021, this Court directed listing of the said petition along with instant WP(C) No. 301/2021 filed by the petitioner. 3. In the instant petition i.e., WP(C) No. 301/2021 this Court while admitting the petition to hearing passed an interim order in the application for interim relief restraining both the petitioner as well as respondent No. 1 from holding the office of Member of District Development Council, Anantnag, against which an appeal /LPA came to be filed by the respondent No. 1 herein being LPA No. 31/2021, which came to be disposed of vide order dated 23.03.2021, by recalling the interim order dated 24.02.2021 and directing the Registry for listing of the petition on 02.04.2021 while making a request to the Writ Court to consider the matter for disposal on the next date. Brief Factual Background. 4. (i) Pursuant to an election notification dated 05.11.2020 issued under the provisions of the Act of 1989, the Election Authority ordered holding of election for 8-Larnoo Constituency of District Development Council, District, Anantnag and after undertaking an exercise thereto five candidates were found to have qualified for participating in the elections including the petitioner and respondent No. 1 herein. The date of election was fixed on 28.11.2020 and counting on 22.12.2020. The date of election was fixed on 28.11.2020 and counting on 22.12.2020. (ii) Upon conclusion of the election, the said five candidates upon counting of votes were found to have secured votes as under:- (i) Farhana Akhter 1377 (ii) Khalida Bibi (Petitioner herein) 4580 (iii) Zahida Akhter 597 (iv) Sajida Begum (Respondent No. 1 herein) 4573 (v) Muneera Akhter 1114 Votes rejected 752 Total votes 12993 (iii) After completing the process of counting of the votes, in the presence of the candidates and their counting agents, Returning Officer-respondent No.2 herein declared the petitioner herein elected as a Member for the Constituency in question and in this regard issued a certificate thereto in her favour. (iv) On 28.12.2020, the petitioner came to be administrated oath. (v) On 02.02.2021 Appellate Authority-respondent No. 3 herein having entertained an application/appeal of the respondent No. 1 herein against the election of the petitioner herein passed an order directing recounting of the votes. The District Panchayat Election Officer on 03.02.2021, inconsequence to the order of the Appellate Authority dated 02.02.2021 notified date for re-counting of the votes on 05.02.2021. (vi) On 04.02.2021, a representation is filed by the petitioner herein before the Secretary, State Election Commission for deferment of recounting of votes, which representation is rejected on the very same day. (vii) On 05.02.2021 recounting of the votes is held and the five candidates are found to have secured votes as under:- (i) Farhana Akhter 1323 (ii) Khalida Bibi (Petitioner herein) 4389 (iii) Zahida Akhter 586 (iv) Sajida Begum (Respondent No. 1 herein) 4450 (v) Muneera Akhter 1077 Votes rejected 1184 Total votes 13009 (viii) Upon recounting respondent No.1 having secured 61 votes more than the petitioner thus, consequently was declared as elected and a certificate thereto issued on 05.02.2021. (ix) On 06.02.2021, the petitioner submitted a representation to District Development Commissioner for recounting or re-polling in the constituency in question on multiple grounds, the fate of which representation is not known. Case set up by the petitioner 5.(i) The petitioner in the petition contends that the entire process undertaken beginning from the filing of the application/appeal by the respondent No. 1 before the Appellate Authority/respondent No. 3 till the issuance of certificate of the election in favour of the respondent No. 1 after recounting of votes is illegal, unconstitutional and contrary to the provisions of the Act of 1989 and the Rule of 1996. (ii) Following grounds are urged in the petition in this regard, which are extracted in extenso and reproduced hereunder:- (a) that under Jammu and Kashmir Panchayati Raj Act, 1989 there was no concept of District Development Council. Instead the Act and the Rules made detailed provisions with regard to Panchayali Raj Institutions and Block Development Council subsequently under14 Jammu and Kashmir Reorganization Act, 2019, Jammu and Kashmir Reorganization (Adoption of State Laws) 4th Order, 2020 issued by Ministry of Home affairs under S.O. 3654 (E) of 2020 dated 16.10.2020 orders were issued purportedly under Section 96 of the Reorganization Act of 2019. For the first time provision for District Development Council came to be made in Section 2(g). All the provisions which provided for District Planning and Development Board were substituted by District Development Council. Section of the erstwhile Act came to be substituted providing for establishment, constitution of District Development Council as also make provision for election of' Chair-person, vice chairperson, conduct of business. Accordingly to the newly incorporated section 45, every District Development. Council was to be established, among others, by directly elected members from territorial constituencies in the District. Provision of reservation in the Council was also made. In terms of District Development Council was fixed at five years. Provision was also made for other relating matters thereto. (b) That as already submitted elections to the District Development Council, though created subsequently by amendment in the Act were to be held in accordance with the Panchayati Raj Act and the Rules framed thereunder. (c) That the petitioner submits that after Certificate of Election was awarded to her and she had take noath, the result of the election could only be disputed on the limited grounds stated in Section 43 of the Act. The petitioner herein places on copy of the petition which respondent No. I has filed before the Divisional Commissioner Kashmir. The same is placed on record as Annexure "XI" to this petition. A bare perusal of the petition demonstrates as follows: (i) That the petitioner has committed corrupt practices under Section 123 (7) of the Representation of People's Action as well as under J&K Panchayati Raj Act, 1989. Petitioner was accused of having committed corrupt practices of bribery, harassment to the agents, both physical and mental and thus violated Section 123 (1) (A) and (B) of the Act of 1951 and 1989. Petitioner was accused of having committed corrupt practices of bribery, harassment to the agents, both physical and mental and thus violated Section 123 (1) (A) and (B) of the Act of 1951 and 1989. (ii) That acts of omission and commission were adopted and the procedure was illegal, arbitrary, malafide and discriminatory and violative of rules of natural justice. (iii) That the total votes counted were only12,993, when the total votes casted were14208. The difference of' 1,215 I malpractice committed by the stall of Election Commission, alleged respondent No. 1. (iv) That 752 votes were rejected without any plausible cause. These votes, most of them, were polled in favour of respondent No. I. (v) That the polling agent of respondent No. I filed application for recounting but the same has not been dealt with and the Returning Officer declared petitioner as successful. The difference of votes between petitioner and respondent No. I was only 7. The Returning Officer did not count almost 2000 votes and 1215 votes are missing. 752 votes were wrongly rejected. Out of which 500 votes favoured respondent No. I. (vi) That the percentage of votes polled as per the timing also gave rise to apprehension of malpractice committed on the part of Returning Officer in order to benefit the candidate who has been declared successful. (vii) Similarly many other allegations were made. Based on the allegations respondent No. I claimed that the election of petitioner he declared void and set aside. Oath ceremony of petitioner be slopped. Petitioner be declared disqualified. Central Government Staff be appointed for recounting of votes as well as to investigate in the corrupt practices. To check the details of Presiding Officer Diary and the verify the relevance of record of both polling stations as well as strong room. (d) That the Appellate Authority, as already submitted without any notice to the petitioner decided the appeal on 2.2.2021. The Appellate Authority in its order considered the documents which were annexed with the petition, report of District Election Officer, Anantnag, final turn over circulated by the election machinery on the day of poll and the final report of the total votes polled being 14208. The Appellate Authority also noticed that only 12993 votes were counted leaving a difference of 15 voles. The Appellate Authority also noticed that only 12993 votes were counted leaving a difference of 15 voles. Relying on the records the Appellate Authority made following conclusions: (i) That the District Election Officer Anantnag has not clarified the difference between the quantum of the voles polled as reflected in final hourly report circulated on the day of poll and total votes counted and announced in the result sheet which stood as 1215 votes. The Appellate Authority also noticed difference of votes between many candidates and the appellant. (ii) The Appellate Authority also concluded that since the gap between the first and second candidate is narrow, the counting authority without declaring results and without waiting for application for recount, should have undertaken recounting of votes on its own. (iii) That the District Panchayat Officer and the Counting Authority have not undertaken the recounting on its own which was desirable. Based on these findings, the Appellate Authority directed recounting of 08-Larnoo to be conducted by the Central Government Stall under supervision of District Panchayat Election Officer. (e) That other allegations made by respondent No. 1 were not dealt with Appellate Authority and therefore, in law, shall be deemed to have been rejected (f) That it is evident from the order of the Appellate Authority that Election Certificate of petitioner has not been set aside nor declared void. It is also evident from the order of the Appellate Authority that no fault was found with the Oath Ceremony of the petitioner. (g) That the petitioner submits that it was within the knowledge of respondent No. 1 as well as Appellate Authority that the petitioner has been duly elected, and was issued certificate of election and had also taken oath. In the face of this position the Appellate Authority acted without jurisdiction in passing the order of recounting. (h) That under Rule 35 (4) of the Rules, the Returning Officer may in his discretion or on the request of the candidate or his authorized agency 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 preceding count. According to the report of Returning Officer dated 23.12.2020, no request for recounting was made by respondent No. I or her authorized agent till certificate of election was handed over to the petitioner. According to the report of Returning Officer dated 23.12.2020, no request for recounting was made by respondent No. I or her authorized agent till certificate of election was handed over to the petitioner. The entire process was concluded at 8 p.m. on 22.12.2020 and the application for recounting was given at 9.30 p.m. In this situation the Returning Officer acted according to law under Rule 35 of the Rules. The Appellate Authority fell into error of law by concluding that the Returning Officer should have of his own ordered recounting of the ballot papers. It is submitted that there can be no recounting alter the declaration of results. A Copy of the report of Returning Officer is placed on record as Annexure XII to this petition. (i) That it is discretionary for the Returning Officer to order recounting. The Returning Officer having found that no objection was taken by any candidate during the counting of the votes or with regard to their rejection or with regard to counting, therefore, all the candidates were satisfied that the entire process of counting was in accordance with law. In these circumstances the Appellate Authority could not interfere with the process of counting. The Appellate Authority, therefore, acted without jurisdiction. (j) That the Appellate Authority proceeded with the case with hot haste. No election can be declared as void without hearing the winning candidate. The interesting part in the present case is that both petitioner and respondent No. I hold election certificate. As submitted the Appellate Authority has not set aside election of petitioner. After the second round of counting on 05.02.2021, another Certificate of election was issued by Returning Officer, which could not have been done. The law does not conceive of a situation where two candidates can he declared elected from the same constituency. In this view of the matter the entire process is illegal. (k) That under Section 43 election can he set aside only on limited grounds. Respondent No. 1 in her appeal alleged several grounds but none found favour with the Appellate Authority. The Appellate Authority has not found that any provision of the Act or the Rules has been violated or contravened. Exercise of discretion, one way or the other, does not constitute violation of' the Act or the Rules. Respondent No. 1 in her appeal alleged several grounds but none found favour with the Appellate Authority. The Appellate Authority has not found that any provision of the Act or the Rules has been violated or contravened. Exercise of discretion, one way or the other, does not constitute violation of' the Act or the Rules. The Appellate Authority, therefore, has acted without jurisdiction in passing the impugned order which has resulted in passing of' consequential order dated 03.02.2021, issuance of Certificate of Election on dated 05.02.2021 and the Oath. All these orders, thereibre, are declared to be void being without jurisdiction. (l) that before the Appellate Authority respondent No. 1 had herself taken up the issue that 1215 votes were missing and were not counted. The said position did not undergo any material change when the votes were recounted on 05.02.2021. Nobody has made any attempt to trace missing votes. If the missing votes, were not to be taken note of the order of the Appellate Authority falls to the ground. Respondent No. 1 cannot take the benefit of the missing voles. She questioned the election of the petitioner on the said ground and, therefore, must suffer on the same ground. (m) That in the counting 22.12.2020, 752 votes were rejected. Same figure has been maintained when the votes were recounted on 05.02.2021. But in the process of recounting, for reasons unknown to the petitioner, 432 votes were declared invalid which votes had been counted on 22.12.2020 and against which no objection was taken by respondent No. I either at the time of counting or in her petition. How and why 432 votes were declared invalid is not understandable. In case of recounting, which is matter of calculating numbers, the votes can neither he declared invalid nor rejected which stage is over in the first round of counting. Non-counting of 1432 votes is clearly illegal and these need to be counted. It is for the first time that this figure has emerged on recounting on 05.02.202 1 (n) Thai the petitioner had duly been elected. She has also taken oath. Her election has not been set aside. Instead another candidate alter recounting has also been provided Certificate of election. In the face of this position it is the petitioner who needs to he declared as the successful candidate from 08-Larnoo to District Development Council, Anantnag. She has also taken oath. Her election has not been set aside. Instead another candidate alter recounting has also been provided Certificate of election. In the face of this position it is the petitioner who needs to he declared as the successful candidate from 08-Larnoo to District Development Council, Anantnag. (o) That the election of respondent No. I after recounting is clearly illegal and unconstitutional, had in law and liable to he set aside. The election of the respondent No. 1 is vitiated by the order of the Appellate Authority and the subsequent steps taken thereto which are all in contravention of law, in particular Act of 1989 and the Rules framed thereunder. The result of the election has been materially affected by the acts of omission and commission of the respondents.” Case set up by respondent No. 1. 6. (i) In the objections/reply filed in opposition to the writ petition by respondent No. 1, a preliminary objections is raised inter alia others qua the maintainability of the petition in view of Article 243-O of the Constitution of India, which provides that no election to any Panchayat shall be called in question except by an election petition presented to authority as may be provided…….. (ii) It is contended in the objections that the respondent No. 1 got validly and legally elected upon recounting of the votes as a Member of the constituency in question, after the Appellate Authority validly and legally decided the appeal filed by her against the election of the petitioner herein. (iii) It is next contended in the objections that the Appellate Authority issued notice to all the candidates including the petitioner before deciding the appeal and that the petitioner did not choose either to appear or to contest the appeal, resulting into passing of order dated 02.02.2021 by the Appellate Authority and a consequent order by District Panchayat Election Officer dated 03.02.2021, whereby all the candidates including the petitioner upon notice thereto participated in the recounting held on 05.02.2021. (iv) It is further contended in the objections by the respondent No. 1 that after recounting process and her election, a certificate of election dated 05.02.2021 came to be issued in her favour and also cancellation of earlier certificate of election issued in favour of the petitioner. (iv) It is further contended in the objections by the respondent No. 1 that after recounting process and her election, a certificate of election dated 05.02.2021 came to be issued in her favour and also cancellation of earlier certificate of election issued in favour of the petitioner. (v) It is being further contended in the objections that the petitioner in the earlier petition bearing WP(C) No. 176/2021 questioned both the orders passed by the appellate authority dated 02.02.2021 and order dated 03.02.2021 issued by the District Panchayat Election Officer and without seeking withdrawal of the same, the petitioner in presence of the said petition filed subsequent petition being WP(C) No. 301/2021 and succeeded in obtaining an interim order dated 24.02.2021, which came to be set aside by the Division Bench in an appeal filed by her being LPA No. 31/2021. (vi) In response to the grounds of challenge urged by the petitioner in the petition following response is urged by respondent No. 1 which is extracted and reproduced hereunder:- “9. In response to the grounds agitated by the Petitioner in Para No. 14 from (d) and (c) of the Writ Petition, it is submitted that the same are false and contrary to record. 10. In response to the ground (d) of Para No. 14, it is submitted that the same are misplaced and hence denied. 11. In response to the ground (e) of Para No. 14, it is submitted that the same would not form a ground to maintain the instant writ petition under reply. 12. In response to the ground (f)) of Para No. 14, it is submitted that the contents of the ground agitated of Para under reply are also of no consequence and cannot favour the Petitioner to evade a process which was initiated purely in tune with the Act and Rules. 13. In response to the ground (g) of Para No. 14, it is submitted that the same is vehemently denied. It is further submitted that the election certificate issued in favour of the Petitioner was cancelled upon the result of the recounting of Votes by the competent authority in termso1 order dated 05.02.2021. The Appellate authority after perusal of the record had come to a conclusion for carrying the recounting of votes for 08-Larnoo Constituency Anantnag. It is further submitted that the election certificate issued in favour of the Petitioner was cancelled upon the result of the recounting of Votes by the competent authority in termso1 order dated 05.02.2021. The Appellate authority after perusal of the record had come to a conclusion for carrying the recounting of votes for 08-Larnoo Constituency Anantnag. The competent authority upon the fact of getting more votes on part of the answering respondent in the process of recounting of votes cancelled the election certificate of the Petitioner in accordance with the mandate of law. It is in place to mention here that the recounting of Votes for the constituency from which the Answering Respondent and the Petitioner had contested the election was neither against the answering respondent nor against the Petitioner, as such, the declaration of the Petitioners Election Certificate as void was nor required as there counting process was purely in accordance to the law and a neutral process. The order passed by the Appellate authority for recounting of votes was thus in accordance to the law and within the powers of the competent authority. 14. In response to the ground (h & I) of Para No. 14, it is submitted that the same is vehemently denied. The Answering Respondent had objected during the course of the counting of votes upon witnessing the flouting of the standard procedure on part of the election officials, besides the Answering Respondent had also submitted an application seeking the recounting of the votes on the same day when the votes were first counted. However, the application of the Answering was not considered by the returning officer as such giving a cause to the Answering Respondent to file an appeal in terms of the law. The order passed by the Appellate authority is based on the reasons, law and the establishment of facts which were raised by the Answering Respondent in terms of her appeal. 15. In response to the ground (j) of Para No. 14, it is submitted that the same is vehemently denied. It is submitted that after the recounting of votes the Answering Respondent was declared as a winner candidate and to have been elected duly in accordance to the law. 15. In response to the ground (j) of Para No. 14, it is submitted that the same is vehemently denied. It is submitted that after the recounting of votes the Answering Respondent was declared as a winner candidate and to have been elected duly in accordance to the law. Besides at the cost of repetition, the Election Certificate issued earlier in favour of the petitioner was cancelled in terms of an order dated 05/02/2021 as such Answering Respondent is the only candidate who is in possession of an Election Certificate from 08-Larnoo Anantnag. The Answering Respondent also held the office of the member of DDCFOR District Anantnag. The Answering Respondent is the lawful candidate and representative of people who was duly elected by casting votes by the people of the constituency. 16. In response to the ground (k, l & m) of Para No. 14, it is submitted that the same are vehemently denied. The Answering Respondent submits respectfully that the appeal filed by her on several grounds was found to have substance and hence as a consequence, the order for recounting of the votes was passed in accordance to law by the appellate authority. The orders impugned by the Petitioner cannot be interfered with by way of the instant petition under reply. Rest of the contents of para under reply is a matter of record and hence cannot be replied by the Answering Respondent. 17. In response to the ground (n &O) of Para No. 14, it is submitted that the same is vehemently denied. The Election of the Petitioner had lost value and legality upon the recounting of the votes and upon declaration of the Answering Respondent having obtained more votes than the Petitioner. The election of the Answering after adherence to the due process of law is legal and constitutional and hence cannot be interfered with in the petition under reply. 18. In response to the contents of Para No.15 and 16, it is submitted that the Petitioner after having got no success in terms of her earlier petition bearing WP (C) No. 176/2021 from this Hon'ble Court left the same and choose to file the instant petition under reply. The Petition bearing WP (C) No. 176/2021 has not been withdrawn till date as such; the Petition under reply is vitiated being not maintainable.” 7. Respondent Nos. The Petition bearing WP (C) No. 176/2021 has not been withdrawn till date as such; the Petition under reply is vitiated being not maintainable.” 7. Respondent Nos. 2 and 3 have filed one joint reply and respondent No. 2 has also filed an independent reply in opposition to the petition of the petitioner, wherein the contentions raised and grounds urged are being controvered and resisted, fundamentally on the premise that none of the legal, fundamental or statutory right of the petitioner got violated in the process of election which would have entitled her to maintain the petition under reply, in that, the petitioner was initially declared as elected on 22.12.2020 as member of the constituency in question upon wrong counting of the votes and that after filing of an appeal by respondent No.1 before the Appellate Authority, recounting of the votes was undertaken vide order dated 02.02.2021 whereafter the respondent No. 1 was found to have secured more votes than the petitioner and, accordingly, respondent No. 1 got elected. 8. Following is the response urged by the respondent Nos. 2 and 3 against the grounds urged in the petition by the petitioner:- “11. That the contents of para No.14 are denied. The grounds are replied as under:- a. The grounds enumerated under sub paras a, b, and c are matter of record and no need to reply. b. The contents of sub para ‘d’ are matter of record and needs no reply. c. The contents of sub-para ‘e’ and ‘f’ are denied being against the law and fact because the answering respondent has examined/consider the matter strictly in accordance with the law. d. The contents of sub para ‘g’ are admitted to the extent that initially petitioner was elected and a certificate of election was also issued in her favour. The rest of the para so far as it pertains to the fact that the impugned order has been issued b the answering respondent without any jurisdiction is denied. e. That the contents of sub-para ‘h’ and ‘I’ are denied being against the law and fact. f. That the contents of sub para ‘j’ are denied being against the law and fact. g. The contents of sub-para ‘k’ are denied. e. That the contents of sub-para ‘h’ and ‘I’ are denied being against the law and fact. f. That the contents of sub para ‘j’ are denied being against the law and fact. g. The contents of sub-para ‘k’ are denied. h. That in reply to the contents of sub para ‘I’ it is submitted that the elections of both the DDC and Panch/Sarpanch were conducted at the same time by same Presiding Officer at designated polling stations simultaneously and the count of 14208 was given only because some of the presiding officers inadvertently submitted a total of both the DDC and Panch/Sarpanch elections tally, which was corrected afterwards and was never objected to by any of the contestants during the counting which was done in presence of the authorized agents of all the candidates. All the ballot boxes were opened in presence of the candidates and their counting agents and no such objections regarding the total number of votes polled during the counting was raised by any of the contestants. i. That the contents of sub para ‘m’ are already replied in preceding paras of this reply and in order to avoid repetition crave leaves of the Hon’ble Court to reply of this para also. j. That the contents of sub para ‘n’ are admitted to the extent that certificate of election has been provided to the petitioner and after recounting of votes to the Respondent No.1. Rest of the para is denied being against the fact and law. k. That contents of the sub-para ‘o’ are demined being against the fact and law.” Heard learned counsel for the parties and perused the record produced by appearing counsel for the official respondents. 9. Before adverting the rival contentions, it would be appropriate to refer to the following provisions of the Act, 1989 and the Rules of 1996, being relevant and germane herein:- 10. Section 4 of the Act of 1989, provides for Establishment and constitution of Halqa Panchayat. 9. Before adverting the rival contentions, it would be appropriate to refer to the following provisions of the Act, 1989 and the Rules of 1996, being relevant and germane herein:- 10. Section 4 of the Act of 1989, provides for Establishment and constitution of Halqa Panchayat. Section 4 sub-section 3 reads as under:- (3) Every Halqa Panchayat shall consist of such number of Panches not less than seven and not more than eleven 3 [excluding the sarpanch] as the prescribed authority may, from time to time, fix in this behalf : Provided that the [sarpanch and panch seats] shall be reserved for–– (a) the Scheduled Castes; and (b) the scheduled Tribes, in every Halqa Panchayat and the number of [sarpanch and panch seats] so reserved shall bear, as nearly as may be, the same proportion to the [total number of panch seats to be filled by direct election in that panchayat] as the population of Scheduled Castes in that Panchayat area or of the Scheduled Tribe in that Panchayat area bears to the total population in that area and such [sarpanch and panch seats] may be allotted by rotation to different constituencies in a Halqa Panchayat in such manner and by such authority as may be prescribed.” Section 4 sub-section 8 reads as under:- “(8) Every Halqa Panchayat shall be a body corporate known by the name “The Halqa Panchayat of ……….. .” and shall have perpetual succession and a common seal and may sue and be sued by its corporate name subject to such conditions or restrictions as the Government may specify, in the rules.” 11. Section 45 of the Act of 1989 provides for establishment of District Development Council and Section 45-A provides for Constitution of District Development Council. Sub-sections 1 and 2 of Section 45-A, reads as under:- (1) Every District Development Council shall consist of (a) the directly elected members from territorial constituencies in the district ; (b) the Members of the Legislative Assembly representing a part or whole of the district whose constituencies lie within the district ; and (c) the Chairperson of all Block Development Councils of the district. (2) The number of elected members of a District Development Council under clause (a) of sub-section (1) shall consist of persons elected from the territorial constituencies in the district, as may be notified from time to time, which shall be fourteen in number.” 12. (2) The number of elected members of a District Development Council under clause (a) of sub-section (1) shall consist of persons elected from the territorial constituencies in the district, as may be notified from time to time, which shall be fourteen in number.” 12. The powers and functions of Halqa Panchayats are provided under Section 12 of the Act of 1989, which powers and functions are specified in Schedule 1-A. Similarly, the powers and functions of District Development Council are specified in Schedule-III. Rule 4 to Rule 45 of the Rules of 1996, are enumerated in Chapter –II of the Rules, which provides and relates to determination of constituencies and matters relating to election of Panchayats. Rule 108-A to 108-ZO of the Rules of 1996, are enumerated in Chapter VII-A of the Rules and relates to delimitation of Constituencies of a District Development Council and matters relating to the election of the District Development Councils. Rule 43 of the Rules of 1996 provides for an Appellate Authority in respect of elections matters of the Panchayats. Section 43 of the Act of 1989 provides for resolution of disputes regarding elections and reads as under:- “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 or elected member or Chairperson of the District 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 ; (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.” 13. Rule 108-ZO of the Rules of 1996 provides for appeal against the election of elected members and Chairperson/Vice-Chairperson of the District Development Council and reads as under:- 108-ZO. Election Petitions. - (1) An appeal against the election of elected members and Chairperson/ Vice-Chairperson of the District Development Council shall lie to the authority as may be notified by the Government within a period of 30 days from date of declaration of results. Election Petitions. - (1) An appeal against the election of elected members and Chairperson/ Vice-Chairperson of the District Development Council shall lie to the authority as may be notified by the Government within a period of 30 days from date of declaration of results. (2) On receipt of the appeal under sub-rule (1), the Appellate Authority shall fix the time, place and the date of hearing of the appeal, such date not being more than seven days after the date of receipt of the appeal. (3) At the fixed date and place the authority shall hear the appeal and pass such orders as it may deem fit. (4) The orders passed under sub-rule (3) shall be final. 14 What emerges from the reading of the aforesaid provisions of the Act and the Rules is that the Panchayats are different and distinct entities provided under the Act with a different nomenclature and specifying different powers and functions than that of the District Development Councils. 15. A conjoint reading of Section 43 of the Act of 1989 read with and Rule 108-ZO of the Rules of 1996, postulates that the disputes regarding elections of Chairperson of the District Development Council or elected member of the council cannot be called in question except by an election petition/ application/appeal presented before a prescribed authority within a period of 30 days from the date of declaration on the grounds enumerated in clauses (a) and (b ) of Section 43 of the Act of 1989 and that the prescribed authority has to hear the same and pass such order as it may deem fit and that the orders passed thereof shall be final. 16. Although Section 43 of the Act of 1989 read with Rule 108-ZO do not provide any specific procedure to be followed by the Appellate Authority while deciding application/appeal/election petition, however having regard to the scheme and object of the Act, the nature of disputes enumerated in Section 43 and the nature of functions required to be performed thereof by the Appellate Authority, a well known procedure in particular in the petitions involving dispute questions of facts, adherence and following of the well settled norms including those of the principles of natural justice, become inevitable and imperative and may have to be observed and followed. 17. 17. Having regard to the nature of the controversy involved in the matter, the first question that emerges for consideration of this Court is the maintainability of the petition challenged by the respondents in view of Article 243-O of the Constitution of India. A reference here to Article 243-O becomes necessary and is extracted hereunder:- 243-O. Bar to interference by courts in electoral matters Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the legislature of a State. A bare perusal of the Article (supra) would manifestly demonstrate that the same prohibits calling in question election of any Panchayat except by an election petition presented to such authority and in such manner as is provided for by or under law made by the legislature of a State. However, no such bar is provided for and in respect of an election to a District Development Council in the said Article. 18. As has been noticed in the preceding paras, the Panchayat and District Development Council under the Act and Rules have been provided to be different and distinct entities with distinct and different nomenclatures as also different powers and functions, leaving thus, no scope for treating them same and similar entities for any purpose including for election matters. 19. Admittedly, the Appellate Authority has adjudicated upon the election petition filed by respondent No. 1 against the election of the petitioner and has passed the impugned order dated 02.02.2021 and the said Appellate Authority, in law, cannot be an appropriate forum or else an available forum to the petitioner to call in question the order passed by the same Appellate Authority, before it. The consequential orders passed there upon merely are issued for carrying out the order of the Appellate Authority. It is Appellate Authority alone which determine and adjudicate upon the rights of the parties. The instant petition thus, in view of the above cannot held to be not maintainable. The consequential orders passed there upon merely are issued for carrying out the order of the Appellate Authority. It is Appellate Authority alone which determine and adjudicate upon the rights of the parties. The instant petition thus, in view of the above cannot held to be not maintainable. Otherwise, as well law is no more res intergra and that there has been a long line of decisions of the Apex Court qua the ambit, scope and power of judicial review vested unto the High Courts under Article 226 of the Constitution. The jurisdiction is not only discretionary but plenary as well. The jurisdiction of the High Court cannot be assumed to be barred or excluded in the instant case. The petition thus, is held maintainable. 20. Now while testing the validity of the basic impugned order dated 02.02.2021 passed by the Appellate Authority, it emerges from the record that the Appellate Authority while adjudicating upon the appeal has fundamentally relied upon the report of the District Election Officer (Deputy Commissioner, Anantnag), which report has been in extenso reproduced by the Appellate Authority in the impugned order dated 02.02.2021 and it has been noticed therein that in the final hourly report the total votes have been reflected as 14208 and whereas in the result sheet issued by the returning officer the total votes counted had been shown as 12993, leaving a difference of 1215 votes including 752 invalid votes. The Appellate Authority despite having noticed the said difference in the number of votes has not undertaken any exercise in tracing out the reasons thereof and has straight way without conducting any kind of enquiry and without deriving any satisfaction thereto directed recounting of the votes. Ironically upon recounting of the votes record tends to show that total number of votes on the date of recounting have been 13009 votes with 1184 rejected votes. How there has been difference in the number of votes right from the day of counting till the furnishing of the record to the District Election Officer and thereafter on recounting before the returning officer on 05.02.2021. The whole matter seemingly is a mystery. 21. How there has been difference in the number of votes right from the day of counting till the furnishing of the record to the District Election Officer and thereafter on recounting before the returning officer on 05.02.2021. The whole matter seemingly is a mystery. 21. Further perusal of the record tends to show that the Appellate Authority while deciding the appeal of respondent No. 1 although had issued a notice to the petitioner herein yet the said notice is contended by the respondents to have been received by the agent of the petitioner. The role of a agent becomes insignificance and inconsequential upon completion of the process of election which in the instant case got concluded upon initial counting of the votes and declaration of result thereof in favour of the petitioner on 22.12.2020. Any notice, thus served upon the so called agent of the petitioner after that would, therefore, be no notice to the petitioner and thus, amounts to condemning the petitioner unheard, violating in the process, principles of natural justice. In this regard a reference here to the judgment of the Apex Court passed in Dharampal Satyampat Limited vs. Deouty Commissioner of Central, reported in 2015 (8) SCC 519 , would be advantageous and appropriate wherein at paras 21, 24 and 28 following has been observed. “21. In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision making by judicial and quasi-judicial bodies, has assumed different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must given to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as 'natural justice'. The principles of natural justice developed over a period of time and which is still in vogue and valid even today were: (i) rule against bias, i.e. nemo iudex in causa sua; and (ii) opportunity of being heard to the concerned party, i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is duty to give reasons in support of decision, namely, passing of a 'reasoned order'. 24. The principles have sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide great humanising factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong. 28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not. 22. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not. 22. As noticed above the Appellate Authority while passing the basic impugned order dated 02.02.2021 upon the appeal of the respondent No. 1 has in essence failed to decide the appeal on merits and the questions/issues raised therein appropriately, more so, in the absence of the petitioner herein, as such, in the peculiar facts and circumstance of the case, this Court refrains from undertaking any exercise in deciding the said question/issues in the instant petition, lest it may prejudice the right of the parties and instead deems it appropriate to remand the case back to the Appellate Authority for reconsideration of the appeal after affording a reasonable opportunity of hearing to the parties. 23. In view of above analysis, the impugned orders dated 02.02.2021 and 03.02.2021 are quashed. 24. The Appellate Authority shall reconsider the appeal afresh and revisit the issues/questions raised therein and decide the matter in accordance with law and rules occupying the field, providing a reasonable opportunity of hearing to the parties. Disposed of along with connected CM (s). 25. The petition bearing WP(C) 176/2021 filed earlier by the petitioner shall stand dismissed as withdrawn having regard to the application filed by the petitioner for its withdrawal. 26. A copy of this order shall be placed on the file of the said WP(C) 176/2021.