Srinagar, Aug 26: The High Court Thursday asked the appellate authority (Additional Commissioner Kashmir) to reconsider and revisit the issue regarding counting of votes for District Development Council (DDC) polls from Larnoo-8 seat in south Kashmir.
Earlier, after recounting of votes, independent candidate Sajida Begum, who had previously lost by seven votes, was declared winner by 61 votes against Khalid Bibi, a PDP candidate and the previously-declared winner.
The recounting of votes was carried out following the directions by the Additional Commissioner, Kashmir as appellate authority where Begum had preferred an appeal.
While deciding the petition by Bibi, a bench of Justice Javed Iqbal Wani remanded the case back to the appellate authority for reconsideration of the appeal after affording a reasonable opportunity of hearing to the parties.
Bibi had questioned the order dated 2 February 2021 passed by Additional Commissioner Kashmir and order dated 3 February 2021 issued by District Panchayat Election Officer, Anantnag, whereby recounting of votes of 8-Larnoo DDC constituency, Anantnag was ordered.
Besides this, Bibi had also challenged the result of recounting dated 5 February 2021 and the certificate of election issued by the Returning Officer in favour of Begum.
Bibi contended before the court that the order dated 2 February 2021 passed by the appellate authority was made without hearing her in violation of the principles of natural justice.
She said, as such, the recounting of votes in pursuance to the order and the result of election declared on this basis was illegal.
Bibi said that the authorities had without revoking the certificate of election issued in her favour declared Begum as successful candidate, creating a situation where both she and Begum were holding valid certificates of election.
She had also challenged the election of Begum pursuant to recounting of votes on the ground that even after the recounting of votes, there was discrepancy in the number of votes polled and the number of votes counted.
Quashing the orders dated 2 February 2021 and 3 February 2021, the court said, “The appellate authority should reconsider the appeal afresh and revisit the issues raised therein and decide the matter in accordance with the law and rules occupying the field, providing a reasonable opportunity of hearing to the parties.”
The court said that the appellate authority has passed the order dated 2 February 2021 and the said appellate authority, in law, could not 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,” the court said. “It is appellate authority alone which determine and adjudicate upon the rights of the parties.”
The court said 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 authority in the order dated 2 February 2021.
“It has been noticed therein that in the final hourly report the total votes have been reflected as 14,208 and whereas in the result sheet issued by the returning officer the total votes counted had been shown as 12,993, leaving a difference of 1215 votes including 752 invalid votes,” it said.
The court said that the appellate authority despite having noticed the difference in the number of votes had not undertaken any exercise in tracing out the reasons thereof and had 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 the total number of votes on the date of recounting has been 13,009 votes with 1184 rejected votes,” it said.
“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 5 February 2021. The whole matter is seemingly a mystery.”