The main legal point established in the judgment is the statutory right of a candidate to file an appeal before the Chief Electoral Officer under Section 6 of the J&K Panchayati Raj Act, 1989, and the implementation of the order by the Election Authority.

1. Through the medium of the present petition, the petitioner inter alia seeks issuance of an appropriate writ, order or direction in the nature of certiorari for quashing Order No.CEO/Pyt/2018/722 dated 22.11.2018 issued by respondent No.5. A further prayer has been made for issuance of writ of mandamus whereby directing the respondents not to enforce order impugned dated 22.11.2018 issued by respondent No.5.

2. Brief facts of the case are that the petitioner being resident of Panchayat Halqa Behota Lower has filed Nomination Form for the post of Sarpanch for Panchayat Halqa Behota Lower. The private respondent also filed his Nomination Form for the post of Sarpanch Panchayat Halqa Behota Lower, but his Nomination Form was rejected by Returning Officer on the complaint filed by petitioner with respect to his eligibility as the private respondent was/is actually and physically residing in Panchayat Halqa Behota Upper. Thereafter petitioner filed an application before respondent No.4 for deletion of the name of private respondent from Panchayat Halqa Behota Lower as the private respondent was/is a resident of Panchayat Halqa Behota Upper and respondent No.4 by considering this aspect of the matter deleted the name of private respondent from the Electoral Voter List of Panchayat Halqa Behota Lower. When the controversy with respect to residential status of private respondent arose, the respondent No.4 directed the Block Development Officer, Marmat, to conduct spot verification, who after conducting a spot verification, submitted his report being No.BDO/M/2018-19/712 dated 12.11.2018, in which, it was reported that private respondent enrolled in Assembly Voter List in Panchayat Upper Behota and also the private respondent during the Panchayat Election 2012 was enrolled in Ward No.4 of Panchayat Upper Behota. Moreover, Lumberdar of the area has also reported that the private respondent has casted his vote in Panchayat Upper Behota during Panchayat Elections 2011 and during the Assembly Elections 2014 and as per the Census 2010-11 the private respondent is enrolled in Panchayat Upper Behota and till date his name exists in the Voter List of Panchayat Upper Behota. The private respondent being aggrieved of deletion of his name from the Voter Lists of Panchayat Lower Behota, filed an appeal before the respondent No.5who without knowing the ground reality vide Order dated 22.11.2018 set aside the order dated 12.11.2018 passed by respondent No.4, with further direction to include the name of private respondent in Electoral Voter List of Panchayat Lower Behota. It is further stated that the order impugned is further bad as the private respondent just for the sake of contesting Panchayat Elections has fraudulently obtained Ration Card for Panchayat Halqa Lower Behota from Fair Price Shop Shamus Din on 30.10.2018 when the fact remains that the said Shamus Din has died prior than 30.10.2018 and it is only the private respondent who unlawfully got this Ration Card issued which clearly indicates the magnitude of influence used by private respondent for contesting Panchayat Elections.

3. During the course of arguments, learned counsel for the petitioner has argued that there is no provision of appeal in the Panchayat Raj Act under which the respondent No.5 can entertain and decide the appeal filed by the private respondent. The order impugned is bad on the ground that the private respondent is actually and physically residing at Samroli along with his family members and moreover, the private respondent is having his own house at Samroli and is also running a business of Sweet Shop under the name and style of “Iqra Sweets”. The order impugned is also bad as the same has been issued with the total non application of mind and has been issued without being heard to the petitioner. Whereas Ms. Seema Shekhar, learned Sr. AAG has argued that this petition pertains to disputed question of fact, which cannot be decided in this petition. She ha