Non-Satisfaction with the Result of the Election, Require to Appeal at Respective Authorities directed in Sections 162 & 175 of H.P. Panchayati Raj Act, 1994: High Court of Shimla

 Hig h C o urt of H.P on 25 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 6521 Date of decision: 24.03.2021 _____________________________________________________ Rekha Thakur …..Petitioner Versus State of H.P. & others …Respondents ________________________________________________________ Coram: The Hon’ble Mr. Justice L. Narayana Swamy Chief Justice The Hon’ble Ms. Justice Jyotsna Rewal Dua Judge. Whether approved for reporting 1 __________________________________________________ For the petitioner : Mr. Vinay Sharma Advocate. For the respondents: Mr. Ashok Sharma Advocate General with Mr. Adarsh Sharma & Ms. Ritta Goswami Additional Advocates General for respondents No. 1 3 & 4. Mr. Ajeet Singh Saklani Advocate for respondent No. 2. L. Narayana Swamy Chief Justice Petitioner submits that she had contested election for the post of Member Zila Prishad Ward No. 16 Sanghnei District Una H.P. The result of the said election was declared on 23.01.2021 and one Sangeeta Devi was declared winner for the said post. She further submits that during the counting process the proper procedure was ignored by the polling party just to give undue advantage to the counter part of the petitioner i.e. aforesaid 1 Whether the reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 25 03 HCHP 2 Sangeeta Devi. She also submits that at about 12.45 a.m. on the same day she had made written request to respondents No. 3 & 4 for recounting of the votes vide Annexures P 5 & P 4 respectively but the respondents did not take any steps for recounting the votes. Hence the petitioner has preferred this writ petition seeking a writ of mandamus directing the respondent Authorities to recount the polled votes for the post of Member of Zila Prishad Ward No. 16 Sanghnei District Una H.P. 2. Learned Counsel for the petitioner submits that result of the election for the post of Member Zila Prishad Ward No. 16 Sanghnei District Una H.P. was declared on 23.01.2021. He draws our attention to Section 79 of the H.P. Panchayati RajRules 1994 which provides for recounting of votes if a request for the same is made within a reasonable time. He further submits that in the present case since the petitioner had made request for recounting of votes within a reasonable time the District Election Officeror Returning Officer as the case may be or any other Officer authorized is duty bound to recount all or any of the ballot papers already counted. In the present case respondents No. 3 & 4 i.e. Deputy Commissioner and Returning Officer failed to discharge their duties as a result of Hig h C o urt of H.P on 25 03 HCHP 3 which the petitioner was deprived of her right of being elected to the post of the Member of the Zila Parishad. 3. On the other hand learned Advocate General representing respondents No.1 3 & 4 submits that the writ petition is not maintainable as an election petition was required to be filed instead of the writ petition. He further submits that if a prayer is made with regard to election the same is required to be made by way of filing an election petition before the appropriate Authority under the appropriate provisions of law. He draws our attention to Sections 162 & 175 Chapter XI of the H.P. Panchayati Raj Act 1994which provides that if a person is not satisfied with the result of the election and intends to pray for recounting of votes an election petition is required to be presented before the appropriate Authority under the aforesaid provisions of law. He also draws our attention to Section 175(iii) of the Act which provides that for non compliance with the provisions of the Act or any Rule made under the Act the authorized Officer shall declare the election of the elected person to be void. He therefore prays that the writ petition be dismissed. 4. Learned Counsel representing respondent No. 2 submits that the writ petition be dismissed as the same is not Hig h C o urt of H.P on 25 03 HCHP 4 maintainable. He further submits that when a Rule or a set of Rules specifically permits or enables a person to approach an appropriate Authority to redress his or her grievances he or she should avail that remedy under the appropriate provisions of law and it is not open for him or her to approach a Court of law. He further submits that when a particular work is required to be done in a particular manner the same should be done in that particular manner only and not by any other method or way. 5. We have heard learned Counsel for the parties and perused the entire file carefully. 6. In the present writ petition the petitioner has made a prayer to issue a writ of mandamus directing the respondent Authorities to recount the polled votes for the post of Member Zila Prishad Ward No. 16 Sanghnei District Una H.P. Except this the petitioner has not made any other prayer. 7. From the perusal of Sections 162 & 175 of the Act it is evident that if a prayer is made with regard to election the same is required to be made by way of filing an election petition before the appropriate Authority under the appropriate provisions of law. Thus we are satisfied with the submission of the learned Advocate General that the petitioner should have approached the appropriate Hig h C o urt of H.P on 25 03 HCHP 5 Authority by filing an election petition instead of approaching this Court for the redressal of her grievances. 8. Even if we accept the prayer of the petitioner made in the writ petition no decision can be made against a person who is not a party to the writ petition. If a person is affected by an order of the Court he should have been made party to the lis. The nature of the prayer made in the writ petition requires consideration by the Statutory Authorities. The same also requires recording of evidence and marking of documents etc. which is not permissible before this Court. 9. For the aforesaid reasons the writ petition deserves to be dismissed. 10. From the perusal of Annexures P 4 & P 5 it appears that the petitioner has not mentioned specific grounds which could influence the Authorities concerned to recount votes. Thus it is made clear that if a representation for recounting the votes is made by the petitioner to the respondent Authorities concerned within a reasonable time the specific grounds for recounting votes alongwith supporting documents should be mentioned therein. In the event of the petitioner approaching the respondents Authorities Hig h C o urt of H.P on 25 03 HCHP 6 concerned the respondents are directed to consider the case of the petitioner and pass appropriate orders in accordance with law. 11. Accordingly the writ petition is dismissed alongwith pending application(s) if any. Chief Justice. March 24 2021 (hemlata) Judge. 

Summary: When a Rule or a set of Rules specifically permits or enables a person to approach an appropriate Authority to redress his or her grievances, he or she should avail that remedy under the appropriate provisions of law. This honorable judgement was passed by High Court of Shimla in the case of Rekha Thakur v. State of H.P. &amp; others [CWP No. 656 of 2021] by The Hon’ble Mr. Justice L. Narayana Swamy and The Hon’ble Ms. Justice Jyotsna Rewal Dua. In the present writ petition, the petitioner had made a prayer to issue a writ of mandamus directing the respondent Authorities to recount the polled votes for the post of Member, Zila Prishad, Ward No. 16, Sanghnei, District Una, H.P. Except this, the petitioner had not made any other prayer.Petitioner submits that she had contested election for the post of Member, Zila Prishad, Ward No. 16, Sanghnei, District Una, H.P. The result of the said election was declared on 23.01.2021 and one Sangeeta Devi was declared winner for the said post. She further submits that during the counting process, the proper procedure was ignored by the polling party just to give undue advantage to the counter part of the petitioner, i.e. aforesaid Sangeeta Devi. She also summited that at about 12.45 a.m. on the same day, she had made written request to respondents No. 3 &amp; 4 for recounting of the votes vide respectively, but the respondents did not take any steps for recounting the votes. Hence, the petitioner had preferred this writ petition seeking a writ of mandamus directing the respondent-Authorities to recount the polled votes for the post of Member of Zila Prishad, Ward No. 16, Sanghnei, District Una, H.P The court opinioned that, “Even if we accept the prayer of the petitioner made in the writ petition, no decision can be made against a person, who is not a party to the writ petition. If a person is affected by an order of the Court, he should have been made party to the lis. The nature of the prayer made in the writ petition, requires consideration by the Statutory Authorities. The same also requires recording of evidence and marking of documents etc., which is not permissible before this Court”