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Victory margin being narrow could not have been a ground for issuing order of recounting of votes: High Court of Jammu & Kashmir and Ladakh

The election can be questioned only on the ground that the election has not been free election by reason that corrupt practice or bribery or undue influence has extensively prevailed in that election and that the result of the election has been materially affected by the improper acceptance or rejection of any nomination as held by the High Court of J&K through the learned bench of Hon’ble Chief Justice Pankaj Mithal and Justice Rajnesh Oswal in the case of Farooq Ahmed Vs State of J&K and others [LPA No. 259 of 2019].

The  Appeal was been filed on the grounds that as per sub rule 4 of Rule 36 of the Jammu and Kashmir Panchayati Raj Rules, 1996 (hereinafter “the Rules”).

The brief facts are that the election was held for the post of Panch in ward No. 10, Panchayat Halqa, District Poonch under the supervision of respondent No. 6. The total votes polled were 100 out of which 02 votes were declared invalid as per rules. Farooq Ahmed, the appellant herein received 49 votes, Mohd Younis-respondent No. 5 got 48 votes and Mushtaq Ahmed got one vote only. Respondent No. 5 filed an appeal before the Additional Deputy Commissioner, Poonch, and respondent No. 4. The appellant filed his response to the appeal before respondent No. 4 and denied all the allegations leveled by respondent No. 5 in the appeal. Respondent No. 4 without hearing the appellant, passed an order dated 15.07.2019 for recounting of the votes without assigning any reason and fixed the date for recounting of votes on 31.07.2019.

The appellant impugned the order dated 15.07.2019 as being illegal and arbitrary contrary to the provisions of section 43 of the Jammu and Kashmir Panchayati Raj Act, 1989 (for short the Act) but the learned Single Judge vide order dated 26.07.2019 dismissed the writ petition filed by the writ petitioner-appellant. Hence, this appeal was filed.

Learned counsel for the appellant, Sh. Ajay Singh Kotwal has vehemently argued that the learned Single Judge has not considered that the appeal of respondent No. 5 before respondent No. 4 was misconceived, particularly in view of section 43 of the Act and further that the narrow margin of the victory could never have been a ground for upholding the order of recounting passed by the appellate authority-respondent No. 4.

Sh. D. C. Raina, learned Advocate General appearing for the official respondents has vehemently submitted that the appellate authority has the power to pass all the orders as per Rule 43 of the Panchayati Raj Rules and also that it includes order with regard to the recounting of the votes as well.

After hearing both the sides, the hon’ble court was of the view that “The victory margin being narrow could not have been a ground for issuing order of recounting of votes in absence of any finding with regard to existence of any of the grounds prescribed by section 43 of the Act.”

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Judgment Reviewed by – Aryan Bajaj

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