Jammu & Kashmir High Court
Abdul Karim vs State Of J&K; And Others on 26 November, 2018
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No. 2424/2018, IA No. 1/2018.
Date of Order: 26.11.2018
Abdul Karim
Vs
State of J&K and others
Coram:
Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge
For the appellant(s)/petitioner(s) : Mr. N. D. Qazi, Advocate.
For the respondent(s) : Mrs. Seema Shekher, Sr. AAG.
i. Whether approved for : Yes/No
reporting in Press/Media
ii. Whether to be reported in : Yes/ No.
Digest/Journal
(Oral)
1. The petitioner in the instant petition is aggrieved of the order dated 18.11.2018 as also order dated 19.11.2018, whereby re-poll has been ordered for the post of a Sarpanch in the Panchayat Halqa Upper Sanai, Block Surankote.
2. It appears that as many as 25 votes were lost during the process of counting. According to the orders impugned, one Irfan Ali, Gram Rozgar Sevak, is alleged to have entered the counting centre unauthorizedly, and is alleged to be the real nephew of the contesting respondent. The said GRS is alleged to have been found access to the counting table, immediately thereafter a bundle containing 25 votes is stated to have gone missing. This appears to have vitiated the sanctity of the election. An enquiry into the matter was ordered by the Deputy Commissioner, Poonch and the said GRS was also OWP No. 2424/2018, IA No. 1/2018 Page 1 of 3 placed under suspension on account of his involvement in the disappearance of the bundle of votes.
3. The District Election Officer also appears to have made a recommendation to the Deputy Chief Electoral Officer for holding re-poll for the said seat, which appears to have been accepted vide communication dated 19.11.2018. Learned counsel for the petitioner stated that re-poll could not have been ordered without the conclusion of the enquiry proceedings initiated at the behest of the District Election Officer, i.e., the Deputy Commissioner, Poonch and during the pendency of the appeal filed by the petitioner before the respondent No. 2 - District Election Officer.
4. In the appeal filed before the District Election Officer, the petitioner/appellant has reiterated that the order of re-poll is illegal and ultra-vires the provisions of the J&K Panchayati Raj Act. It was alleged that the petitioner had obtained the highest number of votes, i.e., 393 votes and, therefore, with a view to defeat his right to get elected, re-poll had been ordered. It was stated that even if 25 votes were to be excluded, even then the applicant would be declared as a winner.
5. Heard learned counsel for the petitioner.
6. On a perusal of the recommendations made by the Deputy Commissioner, Poonch, who was a District Election Officer, it appears that the difference of final vote tally of both the candidates is 13, which is less than 25 votes and, therefore, in those circumstances, a recommendation has been made for re-poll, which stands accepted by the Deputy Chief Electoral Officer.
OWP No. 2424/2018, IA No. 1/2018 Page 2 of 37. The argument of the learned counsel for the petitioner that re-
poll could not have been ordered till the conclusion of the enquiry is untenable. The enquiry as envisaged under Rule 37 of the Rules framed under the Panchayati Raj Act is limited to the extent of determining whether the votes had been lost or destroyed. Since the report is clear and unambiguous to that extent, the only option available to the District Panchayat Officer was to make a recommendation accordingly.
8. In my opinion, the manner of arriving at the decision for ordering re-poll does not suffer from any illegality or perversity. The petition is found to be without any merit and is, accordingly, dismissed along with connected IA.
(Dhiraj Singh Thakur) Judge Jammu 26.11.2018 (Muneesh) OWP No. 2424/2018, IA No. 1/2018 Page 3 of 3