IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 657 of 2007 Date of Decision: 15.5.2009 Raj Kumari …Petitioner. Versus. State of H.P. and others …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for Reporting? No For the Petitioner(s): Mr.Ashok Sharma, Advocate. For the Respondent(s): Mr.R.K. Bawa, Advocate General with Mr.Rajesh Mandhotra, Dy.A.G. for respondents 1 to 3. Ms.Vidushi Sharma, counsel for R-4. Deepak Gupta, J. (oral) This Writ Petition is directed against the order of the Deputy Commissioner, Hamirpur (Appellate Authority) dated 17.2.2007 passed in Appeal No.3 of 2007 whereby he has rejected the appeal filed by the petitioner on the short ground that the order impugned before him was only an interim order. Briefly stated the facts of the case are that the petitioner before us was elected as a Member of the Block Development committee (BDC). Her election was challenged by respondent No.4 herein by filing an Election Petition under Section 163 of the H.P. Panchayati Raj Act. The petitioner had only obtained three votes more than Vijay Kumar, respondent No.4 and one of the main grounds of challenge 2 was that the counting of votes has not been done in accordance with law and this had affected the result of the elections. On the pleadings of the parties, the prescribed authority i.e. SDO ( C), Hamirpur framed the following issues: “i)Whether the counting of the votes was not done as per mandatory provisions of law as alleged?OPP ii)Whether the declaration of results has naturally effected the election of the petitioner as alleged? OPP iii)Whether the procedure adopted by the concerned officer is illegal null and void violative of mandatory provisions of law as alleged? OPP iv)Whether the request of Recounting of votes by the petitioner was wrongly rejected? OPP” Evidence was led by the parties and thereafter vide judgment dated 20th September, 2006 the election petition was allowed and recounting of votes was ordered. The Prescribed Authority decided all the aforesaid issues in favour of respondent No.4. Therefore, it is obvious that it held that the counting of the votes had not been done in accordance with law; the election result has been materially affected; that the action of the concerned officials was illegal being violative of the mandatory provisions of law and that the request of the petitioner (respondent No.4 herein) for recounting of the votes had been wrongly rejected. We are not going into the merits of the case. However, it is obvious that this was not an interim order but a final order whereby recounting of the votes was ordered. We fail to understand the reasoning of the Appellate Authority i.e. the Deputy Commissioner, Hamirpur who has simply rejected the petition on the ground that the 3 appeal is directed against the interim order. It appears that the officer concerned did not care to read the entire order. It also appears that he was only influenced by the fact that recounting had been ordered. Therefore, we set-aside the order of the Deputy Commissioner, Hamirpur (Appellate Authority) and direct him to decide the appeal after giving hearing to the parties. Since the elections were conducted in the year 2005, we direct that the parties i.e. the petitioner and respondent No.4 shall appear before the Deputy Commissioner, Hamirpur on 1st June, 2009. The petitioner shall produce a certified copy of this order before the Deputy Commissioner. The Deputy Commissioner (Appellate Authority), Hamirpur shall ensure that the appeal is heard and decided as early as possible and in any event not later than 31st July, 2009. The operation of the order of the SDO (C ), Hamirpur exercising the powers of the Authorized Officer dated 20th September, 2006 shall remain stayed till the matter is decided by the Appellate Authority. The petition is disposed of in the aforesaid terms. No costs. Dasti copy. ( Deepak Gupta ) Judge. May 15, 2009 ( V.K. Ahuja ), PV. Judge.