Jammu & Kashmir High Court
Krishan Lal vs State Of J&K And Ors on 2 May, 2013
Bench: Mohammad Yaqoob Mir, Bansi Lal Bhat
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPAOW No. 38 OF 2013 Krishan Lal Petitioners State of J&K and ors Respondent !Mr. H.C.Jalmeria, Advocate ^Mr. Anil Sethi, Advocate for R-4 on Caveat Honble Mr. Justice Mohammad Yaqoob Mir, Judge. Honble Mr. Justice Bansi Lal Bhat, Judge Date: 02.05.2013 :J U D G M E N T :
Per Yaqoob -J:
1. With the appearance of Mr. Anil Sethi, Caveat shall stand discharged.
2. Writ petition, filed, by the appellant seeking quashment of order dated 23rd September, 2011 passed by the Additional Deputy Commissioner Jammu (Appellate Authority Under Panchayati Raj Act), and order dated 11th October, 2011 passed by respondent No. 2 (Returning Officer Election 2011 Panchayat Halqa Chandu Chak Tehsil R.S.Pura whereby the election certificate as Sarpanch favouring the appellant, has been cancelled and Certificate of election as Sarpanch dated 11.10.2011 favouring respondent No. 4, has been issued, has been dismissed by learned Single Judge vide judgment dated 03.04.2013. Aggrieved thereof, the instant Letters Patent appeal has been filed.
3. Appellant and respondent Nos. 4 to 6 contested the election for the post of Sarpanch of Halqa Panchayat Chandu Chak. The polling and counting was held on 17th April, 2011.
The appellant was declared elected. Certificate of election was issued in his favour by respondent No. 2 (Returning Officer). Respondent No. 4 (Bachan Lal) has filed the appeal before the Appellate Authority under Panchayati Raj Act (Additional District Development Commissioner, Jammu) as permissible under Section 43 of the Jammu and Kashmir Panchayati Raj Act, 1989, hereinafter for short referred to as Act.
4. During the course of proceeding of the appeal, election records were produced, on verification of the rejected votes, it was found that out of 19 rejected votes three valid votes, without any reason, have been taken as rejected votes and the said three votes were in favour of respondent No. 4, who otherwise had lost election by a margin of two votes. Three valid polled votes having been rejected without any reason, were added to the valid votes, as a result thereof, respondent No. 4 has been declared as elected by the Appellate authority vide its order dated 23rd September, 2011, in consequence whereof Election certificate in favour of respondent No. 4 has been issued on 11.10.2011.
5. Learned Single Judge while considering the rival submissions and after examining the records has observed that verification of rejected votes would show that properly polled three votes were also tagged with the rejected votes. The said three votes were not rejected votes and has dismissed the writ petition with costs quantified at Rs. 10,000/-.
6. The first contention of learned counsel for the appellant is that during counting and declaration of results favouring the appellant, no candidate including respondent No. 4 raised any objection, therefore, result of election was accepted. Box containing the election record was not sealed, therefore, there could be chance of tampering
7. The contention, as raised before the learned Single Judge, has not prevailed and has not to prevail because the authorities had declared the results in his favour. Though stood by their stand that elections were held in fair and transparent manner but when the record was produced before the Appellate Authority, same was opened and it was found that rejected 19 votes included three valid votes which were cast in favour of respondent No. 4. Respondent No. 4 had no access to the records nor it is anywhere projected that respondent No. 4 in any manner had managed any change. The contention that the record was not sealed, falls flat as the wordings used by the Appellate Authority in its order dated 23rd September, 2011 is that record was produced, opened and checked. So it means the record was under safe custody. There is no allegation that any of the official respondents which include the Returning Officer or District Panchayat Officer was in any manner influenced or interested in helping respondent No. 4, Bachan Lal. Instead, they had to vindicate their own decision which was under challenge.
8. The next contention of learned counsel for the appellant is that appeal could be maintained only on the ground specified in Section 43 of the Act. Section 43 provides that election including that of Sarpanch shall not be called in question except by an application presented to such authority in a manner as may be prescribed when the result of election is materially affected on two grounds. Ground (b) reads as under:
(b) that the result of the election has been materially affected-
i. by the improper acceptance or rejection of any nomination;
ii. by gross failure to comply with the provisions of this Act or the rules framed thereunder.
9. Section 43 has to be read with Rule 43 of the Panchayati Raj Rules which provide that appeal against the election of a candidate as Sarpanch or Panch shall lie to the Authority as may be notified by the Government. It is in terms of Rule 43, the Additional District Development Commissioner, Jammu has exercised the appellate powers. By exercising the said powers and invoking the ground (b) of Section 43 of the Act, the Appellate Authority has found that inclusion of three polled votes with rejected votes has materially affected the result of the election. The officers/officials who counted the votes did not perform their duties properly. The same is regrettable. The contention of the learned counsel that the grounds specified in Section 43 of the Act were not available, is misplaced because in accordance with Rule 36 (3) of the Rules, if a ballot paper is rejected reasons for such rejection were to be recorded on such ballot paper. Admittedly, no reason has been recorded, therefore, Rule 36 (3) is offended.
So a clear cut case of failure to comply with the said rule, violation thereof falls within the ambit of Section 43 (1) (b) (ii) of the Act.
10. The next contention of the learned counsel for the appellant is that all the votes were counted on the counting day to the satisfaction of all the candidates. 19 votes were kept in the bundle of cancelled votes. In terms of Rule 36 (3) of the Rules, all the cancelled votes had to be marked as cancelled with reasons therefor. Three votes which were valid as produced before the learned Single Judge did not carry any mark so were not cancelled votes. This specific contention was raised before the learned Single Judge and has been appropriately dealt with and repelled;
when a valid vote is available that should have been counted with valid votes simply to keep three valid votes with the bundle of rejected votes would not make them invalid votes. Rule 36 (3) provides that Returning Officer shall record on every ballot paper which he rejects a brief statement of reasons for such rejection. When the votes were valid those were not rejected, i.e., why no reason has been recorded thereon. The contention of the learned counsel that those were not actual votes polled is far from imagination because it is not his case that the said votes were not polled or that Bachan Lal had tampered with the records. The records all along remained in the custody of concerned authority, i.e., District Panchayat Officer.
11. In terms of Rule 39 of the Rules, after reporting the result of the election, the Returning Officer has to forward all the papers pertaining to election to the District Panchayat Election Officer for safe custody. Then the District Panchayat Election Officer has to keep the papers so forwarded to him in safe custody for such time as the Election Authority may decide. Respondent No. 4 had no access to the records. The records were all along in the custody of District Panchayat Officer. The Returning Officer, or the District Panchayat Officer, would never permit any type of tampering when the result was declared in favour of the appellant. They would never like to be exposed by doing any wrong nor was any such allegation leveled against them. They had preserved the records and the Appellate Authority while perusing the record found the position of these three valid votes and acted accordingly and the Appellate Authority has expressed anguish by recording that the officers and officials who counted the votes did not perform their duties properly, the same is regrettable. No authority would like to invite such comments. It is a matter of course that on re-verification of the polled votes from the bundle of rejected votes, three votes were found validly polled and not rejected.
12. The next contention of the learned counsel for the appellant is that when the records were being produced before the Writ Court, the Box containing votes and other election record was being opened by the officials of the respondent department in the parking area of the Honble High Court. Same was photographed and photographs were placed on record. This contention has been raised before the learned Single Judge and it has been observed that it is a later event. The basic position of the votes as it was, when produced before the Appellate Authority, is not in any manner, exposed. Thus records were produced by the authority which in terms of Rule 39 had kept the same in safe custody. We find no reason to take contrary view.
13. There is no merit in the appeal except in the background of the facts and circumstances, in our view, imposition of costs will operate harshly. Judgment impugned is upheld except for costs.
14. Appeal accordingly dismissed.
(Dhiraj Singh Thakur) (Mohammad Yaqoob Mir) Judge Judge Jammu: 02.05.2013 Tilak, Secy.