' Petitioner has assailed in this constitutional petition, orders, dated 21-2-2008, passed by respondents Nos. 1 and 3, whereby the request of the petitioner for recounting of votes, was declined.
2. It is contended by learned counsel for the petitioner that order of respondent No.3 lacks of elements of reasoning and is a non-speaking order. Adds further that section 39(6) of the Representation of the People Act, 1976, provides that the Returning Officer is empowered in issuing direction for recounting of the votes, if it is observed that the request of the candidate or of his polling agent, is genuine. Learned counsel, while referring to Rule 26 of Representation of the People (Conduct of Election) Rules, 1977, has submitted that the Returning Officer has to exclude from the count, challenged ballot papers and scrutinize each ballot paper, which was excluded from the count by the Presiding Officer. Returning Officer is vested with the authority to count an invalid ballot paper, cast in favour of a contesting candidate, if it is found that it should not have been excluded from the count by the Presiding Officer. Learned counsel has submitted that there is a narrow margin and propriety demands that recounting, which was a right course, should have been adopted.
3. Learned Law Officer has raised objection as to the maintainability of this writ petition.
4. Heard learned counsel for the petitioner and learned Law Officer and record perused.
5. The petitioner has referred to Rule 26(3) of the Representation A of the People (Conduct of Election) Rules, 1977 and section 39(6) of the Representation of the People Act, 1976 and has voiced his grievance that the respondents have not proceeded in accordance with law, under the above referred provisions. The perusal of record reflects that petitioner has never approached the Returning Officer. The powers, for recounting of the votes and to include challenged ballot papers, after scrutiny, vest with the Returning Officer. Petitioner has not approached the Returning Officer in the case in hand. He has moved an application before the District Returning Officer, who has neither power under Rule 26(3) ibid or under section 39 (6) ibid to pass the appropriate orders. The petitioner has approached this Court, without availing the appropriate remedy available to him, under the law.
6. As such, this petition is not competent and is accordingly dismissed.