2025:HHC:14467 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1082 of 2024 Decided on: 19.05.2025 Smt. Anita … Petitioner Versus State of Himachal Pradesh and others … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes _____________________________________________________ For the petitioner : Mr. Vikas Rathore, Advocate. For the respondents : Mr. Rajpal Thakur, Addl. AG for respondents No. 1 to 4. : Mr. Prem Prakash Chauhan, Advocate for respondent No. 5. Ajay Mohan Goel, Judge (Oral) By way of this writ petition, the petitioner has primarily prayed for the following reliefs:- “i) That the impugned orders contained in Annexure P-2 dated 17.4.2023 and P-3 dated 1.12.2023 may kindly be quashed and set-aside and order passed by Ld. SDM authorized officer and Panchayati Raj act 1994 be up held. ii) That the respondents may kindly be Registrar directed to allow the petitioner to be continue as Pradhan of Gram Panchayat Saloh, District Una, HP and respondents may be restrained from taking any coercive action against the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:14467 petitioner till the disposal of the present writ petition.” 2. Brief facts necessary for the adjudication of this writ petition are that the petitioner and the private respondent contested the election for the post of Pradhan Gram Panchayat Saloh, District Una at Himachal Pradesh. The elections were held in the month of August, 2022. The election of the petitioner was assailed by the private respondent by way of an election petition. The election petition was dismissed by the Authorized Officer vide Annexure P-1, dated 22.08.2022, primarily by assigning the reason that as no application for re-counting of the votes was filed by the election petitioner to substantiate her claim about the violation of the process prescribed for counting of the votes, therefore, as the intent of the election petitioner appeared to be merely seeking a roving enquiry, the same was not permissible. 3. The challenge to the election was on the ground that eight excess votes stood counted in favour of the elected candidate, which adversely affected the election results. 4. The Authorized Officer also held that the election petitioner was relying upon eight votes counted in excess, but it could not be ascertained whether all these votes were indeed polled in favour of the election petitioner or not. 5. The order passed by the Authorised Officer was assailed 3 2025:HHC:14467 by the election petitioner by way of an appeal filed under Section 181 of the Panchayati Raj Act, 1994. Deputy Commissioner, Una, in terms of Annexure P-2, dated 17.04.2023, by way of a detailed order, allowed the appeal by returning the following reasons:- “5. I have heard the learned counsels for both the parties and perused the record of the lower court in depth. The election petition was instituted on 10.02.2021 and dismissed on 22.08.2022. It has also been on record that due to clerical mistake the date of decision of election petition was written mistakenly as 22.08.2022 instead of 09.09.2022 and this fact was brought to the notice of lower court by Smt. Bandana Rani (Petitioner) and in response thereof, SDO (Civil)-cum-Authorized Officer under H.P. Panchayati Raj Act, 1994 vide its order dated 15.10.2022 has ordered that date of decision should be read 09.09.2022 instead of 22.08.2022. 6. After careful consideration of the entire material on record and the submissions made by the counsels, I am of the considered opinion that the present appeal deserves to be allowed for the reasons set out hereinafter. The crucial matter in controversy is whether the statutory procedure for counting was scrupulously adhered to and this involves the issue of casting and counting of postal duty ballot papers due to which the total number of votes counted for the post of 4 2025:HHC:14467 Pradhan are different from the votes counted for the post of Panchayat Samiti Member and ZP member. Rule 49-F(3)(a) provides that all covers containing poll duty ballots shall be delivered by the Returning Officer to the Assistant Returning Officer. Rule 73-A of the HP Panchayati Raj Rules deals with the counting of votes received through poll duty ballot papers. Rule 73-A(10) provides that valid poll duty votes shall be counted and totalled in the result sheet in Form 34. Rule 66 requires an account of ballot paper to be prepared in Form 29 at the close of the poll and kept in a separate cover. Rule 75(v) requires that final result-sheet of all votes to be prepared in Form 34. The issue whether the prescribed procedure for counting has been followed or not cannot be ascertained without reference to these statutory documents. The statutory record is required to be examined for adjudication of the real matter in controversy. The AO has not appreciated this issue at all and has not addressed the issue relating to examination of the statutory record to determine whether the statutory procedure of counting was in fact I scrupulously adhered to. The relevancy and admissibility of specific documents is to be decided by the AO after appreciating all the statutory record. The law relating to recounting of votes is well-established through a series of decisions of the Hon'ble Supreme Court and the guiding 5 2025:HHC:14467 principles laid down therein have to be strictly adhered to by the AO while adjudicating the issue of final relief i.e. recounting of votes. 7. In view of the above discussion, after consideration of the all the relevant legal provisions, facts & circumstances and material on record, I am of the considered opinion that the Impugned Order dated 09.09.2022 is not sustainable in the eyes of law. Therefore, the present appeal against the Impugned Order dated 09.09.2022 is allowed and the Impugned Order is set aside with direction to consider the matter afresh by affording adequate opportunity of being heard to both parties. File be consigned to General Record Room after due completion and lower Court file be returned. the open court today the 17th April, 2023.” 6. Record demonstrates that the order passed by the Appellate Authority was challenged before the Divisional Commissioner by the present petitioner and the challenge by way of an appeal under Section 181(ii) of the Panchayati Raj Act, 1994 was also unsuccessful as the learned Divisional Commissioner dismissed the said appeal vide order Annexure P-3, dated 01.12.2023. 7. Mr. Prem Prakash Chauhan, learned Counsel for the private respondent submitted that the second appeal filed by the petitioner is not provided for in the Statute. 6 2025:HHC:14467 8. Section 181 of the H.P. Panchayati Raj Act, 1994, reads as under:- “181. Appeals:-Notwithstanding anything contained in this Act, any person aggrieved by an order made by the authorised officer under this chapter may, within the prescribed time and in the prescribed manner, appeal- (i) in case the order is passed by the Sub-Divisional Officer, to the Deputy Commissioner. (ii) in case the order is passed by the Deputy Commissioner, to the Divisional Commissioner, and (iii) in case the order is passed by the Divisional Commissioner, to the Financial Commissioner (Appeals). and he shall hear and dispose of the appeal within a period of 90 days and his decision shall be final.]” 9. A perusal of the said statutory provision demonstrates that it begins with a non-substantive clause that any person aggrieved by an order made by the authorised officer under Chapter XI of the Act, can prefer an appeal in the manner prescribed therein. An order passed by the Sub-Divisional Officer is appealable before the Deputy Commissioner, where the Authorised Officer is the Sub- Divisional Officer and similarly, where the authorised officer is the Deputy Commissioner, the order passed by him is assailable before the Divisional Commissioner. In a case where the authorised officer 7 2025:HHC:14467 is the Divisional Commissioner, the appellate Authority is the Financial Commissioner. 10. Section 181 has to be read harmoniously with Section 161 of the Panchayati Raj Act, 1994, which authorised the Authorised Officers to hear election petitions. For ready reference, the same is also reproduced herein under:- “161. Officer authorised to hear election petitions. The election petitions under this Act shall be heard- (1) in the case of Gram Panchayats and Panchayat Samitis, by the Sub-Divisional Officer, and (ii) in the case of [members of] Zila Parishads, by the Deputy Commissioner, and [(iii) in the case of Chairman and Vice-chairman of Zila Praishad, by the Commissioner.]” 11. In light of Sections 161 and 181 of the Panchayati Raj Act (supra), it is held that where the Authorised Officer is the Sub- Divisional Officer, there the appeal filed against the order passed by the Sub-Divisional Officer is maintainable before the Deputy Commissioner but, an order passed by the Deputy Commissioner in his appellate capacity cannot be thereafter assailed by invoking the provisions of Section 181 of the Panchayati Raj Act. Thus, order passed by the Divisional Commissioner, appended with the writ petition as Annexure P-3, is otiose and is held as such. 8 2025:HHC:14467 12. Now coming to the order passed by the Deputy Commissioner, I have already quoted relevant paras thereof. On the basis of reasoning contained therein, the Appellate Authority set aside the order passed by the Authorised Officer. The Appellate Authority primarily held that Rule 49-F(3) (a) of the Panchayati Raj (Election) Rules, 1994, provides that all covers containing poll duty ballots shall be delivered by Returning Officer to the Assistant Returning Officer. Learned Appellate Authority held that in terms of Rule 73-A(10), valid polled duty votes shall be counted and totalled in the result sheet in Form 34 and Rule 66 required an account of ballot paper to be prepared in Form 29 at the close of the poll and kept in a separate cover. Learned Appellate Authority also held that Rule 75(v) required that final result-sheet of all votes to be prepared in Form 34 and the issue whether the prescribed procedure for counting has been followed or not, cannot be ascertained without reference to these statutory documents referred to in para 6 of the order passed by the learned Appellate Authority. Thereafter, learned Appellate Authority went on to hold that the Authorised officer, i.e. the SDM was required to examine the record in consonance with the rule position mentioned hereinabove to ascertain whether the prescribed procedure for counting of the votes was followed or not and the same could not have been ascertained without reference to 9 2025:HHC:14467 these statutory documents. It went to further hold that this was neither done by the Authorised Officer nor appreciated by the said authority. 13. A pointed query was put to learned Counsel for the petitioner to demonstrate that these findings returned by the learned Appellate Authority were perverse and contrary to the record. Learned Counsel for petitioner could not do so but submitted that the order passed by the Authorised Officer was a reasoned and self speaking order. 14. Having carefully perused the order passed by the Authorised Officer as well as the order passed by the learned Appellate Authority, this Court is of the considered view that in light of the controversy involved in the case, it would have been appropriate for the Authorised Officer to have had scrutinized the entire record to ascertain as to whether counting of the votes was actually carried out in terms of the provisions prescribed in the HP Panchayati Raj (Election) Rules, 1994, or not. This not having been done by the Authority, this Court finds no reason to interfere with the order passed by the learned Appellate Authority who has rightly set aside the order passed by the Authorised Officer. The order passed by the Deputy Commissioner suffers from no infirmity. 15. At this stage, learned Counsel for the petitioner submits 10 2025:HHC:14467 that the appropriate authority be directed to hear and dispose of the matter without being influenced by any observations made either by this court or by the Appellate Authority on merit. Learned Counsel for the private respondent submits that the Authorised Officer be directed to do the needful within some time bound period. In the light of the respective submissions of learned Counsel, this petition is disposed of with the direction that let the election petition be decided within a period of six weeks from today by adhering to the principles of natural justice, on the basis of material on record. The Authority will not be influenced by any observations made by this Court or by the Appellate Authority, but will do the needful in sync with the order passed by the Appellate Authority, by taking into consideration the documents on record as well as the statutory Rule position. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge May 19, 2025 (narender)