LONE Vs. STATE OF J&K AND ORS.

JUDGEMENT

(1.) Appellant admittedly participated in election to the office of Sarpanch, Panchayat Halqa "KP-299", Budnambal Payeen, Kralpora, Kupwara held on 08.05.2011. He claims to have secured 262 out of 532 votes polled in the election as against 261 votes secured by his immediate opponent-Abdul Subhan Lone, who has been formally declared elected, notwithstanding Assistant Returning Officer earlier declaring appellant elected as Sarpanch of Panchayat Halqa, in question. It is stated that after the petitioner was declared elected by the Assistant Returning Officer, the Authorities, on intervention of someone not associated with conduct of elections, went for a recount, rejected one of the votes cast in his favor, reducing his tally to 261 votes, and declared his opponent elected on the strength of draw of lots. Aggrieved with the declaration made by the Returning Officer, appellant filed an appeal before the Appellate Authority. The Appellate Authority found no merit in the Appeal on the ground that the Appellant having signed the Form PEL-17 was not competent to maintain the appeal. Not satisfied with outcome of Appeal, appellant approached Writ Court with a writ petition, being OWP 306/2012 wherein Abdul Subhan Lone one of the respondents in present LPA, figured as respondent No. 8. The writ court held that there was no provision in the Panchayat Raj Act and Rules made there-under for declaring a candidate successful by draw of lots, and accordingly allowed writ petition and set aside order of Appellate Authority dated 3.3.2012. The Appellate Authority was directed to re-hear the appeal and dispose it of in accordance with law.

(2.) The writ court Judgment dated 31.10.2012, was questioned in Letters Patent Appeal, registered as LPA No. 200/2012. The LPA Bench upheld the writ court Judgment, though on the grounds other than the grounds relied upon by the writ court. The Appellate Authority, was asked to deal with and dispose of the appeal as directed by the writ court in accordance with law.

(3.) The Appellate Authority dismissed the Appellant's Appeal vide order dated 15th June 2013. The Appellate Authority took the view that as on recounting, one vote added to the tally of appellant was found to be invalid and therefore subtracted from number of votes earlier held to have been secured by him, the number of votes polled by him therefore came down to 261 and resulted in a tie between appellant and Shri Abdul Subhan Lone respondent No. 3 in the appeal. It was further held that in terms of Para 11 Chapter XIV, viz. counting of votes, of the Handbook for Conduct of Panchayat Elections 1997, draw of lots was the only option available to the Returning Officer and the said method was used with the consent of the appellant and that as the lot fell in favour of respondent No. 3, he was rightly declared elected and a certificate in Form PEL 16 issued in his favor. The Authority noticed that recounting was asked for by the appellant and the Returning Officer in exercise of power under Rule 35(4) of J & R Panchayat Raj Rules, 1996 directed recounting and that it was done in presence of appellant, under supervision of Returning Officer as also the Counting Supervisor. It was further observed that the appellant did not object to the rejection of the vote and also it was appellant who asked for draw of lots. The Appellate Authority concluded that recounting, draw of lots and declaration of results did not suffer from any irregularity. The appeal was accordingly dismissed.