Chattisgarh High Court

Divya Bharti Simour vs State Of Chhattisgarh on 24 March, 2025

2025:CGHC:13975
Digitally
signed by
RAVI
RAVI SHANKAR
SHANKAR MANDAVI
MANDAVI Date:
2025.04.09
10:55:49
+0530

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

WPC No. 1514 of 2025

1 - Divya Bharti Simour D/o Daswant Agrawal Aged About 32 Years R/o
Ward 05, Satnami Para, Amora, Amora, P.O. Amora, District Mungeli
Chhattisgarh.
... Petitioner

versus

1 - State Of Chhattisgarh Through The Secretary, Department Of
Panchayat And Rural Development, Kutchery Chowk, Near Garden,
Nawa Raipur, District Raipur Chhattisgarh.

2 - The Director Directorate Of Panchayat Sector 19 North Block,
Vikash Bhawan, Ground Floor, Nawa Raipur, Atal Nagar, District Raipur
Chhattisgarh.

3 - The Collector Cum Election Officer Mungeli, District Mungeli
Chhattisgarh.

4 - The Sub Divisional Officer (Revenue) Pathariya, District Mungeli
Chhattisgarh.

5 - The Tahsildar Tehsil Pathariya, District Mungeli Chhattisgarh.

6 - The Chief Executive Officer Janpad Panchayat, Pathariya District
Mungeli Chhattisgarh.

7 - The Commissioner State Election Commission, Nirvachan Bhawan,
Sector 19, North Block, Nawa Raipur, Atal Nagar, District Raipur
Chhattisgarh.
2

8 - Santoshi Thakur W/o Parmeshwar Thakur Aged About 48 Years R/o
Village Hathikala, Tahsil Pathariya, And District Mungeli Chhattisgarh.
... Respondent(s)

(Cause-title taken from Case Information System) For Petitioner : Mr. Amit Kumar, Advocate For State/Respondent(s) : Ms. Upasana Mehta, Dy. Govt. Advocate For Respondent No.7 ; Mr. Venkatesh Pandey, Advocate

Hon'ble Shri Justice Amitendra Kishore Prasad

Order on Board

24/03/2025

1. Heard Mr. Amit Kumar, learned counsel petitioner. Also heard

Ms. Upasana Mehta, Dy. Govt. Advocate for the

State/respondent/s as well as Mr. Venkatesh Pandey, Advocate

appears on behalf of Mr. R.S. Marhas, learned counsel for the

respondent No.7 appears on advance copy.

2. By way of this writ petition, the petitioner has prayed for following

reliefs:

"10.1.That, the Hon'ble Court may kindly be pleased to call fo the entire records pertaining to this case from possession of the Court below.

10.2. That, the Hon'ble Court may kindly be pleased to set aside the order dated 10.03.2025 and allow the application filed by the petitioner on dated 24.02.2025 for the recounting of the ballet papers.

10.3. That, the Hon'ble Court may kindly be pleased to direct the respondent authorities to recount the votes of the election of the member of district panchayat. 10.4. Any other relief which this Hon'ble Court may

deems fit and proper, may also be passed in favour of the petitioner."

3. Learned counsel for the petitioner submits that the petitioner

earlier filed petition for the recounting of valid papers before this

Hon'ble Court which was registered as W.P.C No.1341/2025

during the pendency of the writ petition respondent authority

dismiss the application on 10.03.2025 filed by the petitioner dated

24.02.2025. As the petitioner is an election candidate from the

District Panchayat Area No.10, Village Lauda for Member of

District Panchayat where her election symbol is "UGTA SURAJ"

where on 23.02.2025 election has been done. On the day of

election in the counting of all the booths, the Presiding Officer

counted the votes incorrectly and gave wrong counting papers in

which only respondent No.8's vote has been given, somewhere

the agents have not been given counting papers where valid votes

received by the petitioner has also been rejected by the Presiding

Officer. On day of election petitioner received more votes from the

respondent No.8 but at the time of the counting the Presiding

Officer committed grievous error at the time of the counting the

ballet papers due to the reason of providing undue advantages to

the respondent No.8. Thereafter petitioner filed application before

the respondent No.3 on 24.02.2025 for illegal action of the

Presiding Officer and also for the recounting of the votes of all the

booths. (ANNEXURE P/2). Further the petitioner also moves

application for recounting due to the reason of wrong information

and wrong counting of the ballet papers but the respondent

authorities have not taken any action regarding the application /

complaint /representation of the petitioner. As the petitioner

receives more votes from the respondent No.8, therefore the

petitioner having doubt in the counting of the ballet papers

therefore the petitioner wants to recount the ballet papers by

respondent authorities but respondent authorities ignore this fact

that this is the mandatory provision if any candidate wants to

recount the ballet papers then she can move application before

the competent authorities and competent authorities can recount

the ballet papers as per law but due to the influence of respondent

No.8 respondent authorities not take any action regarding the

application. Thereafter, the petitioner filed petition before this

Hon'ble Court and during the pendency of the writ petition

respondent authority rejected the application for recounting of the

ballet papers on 10.03.2025 and reason mentioned after the

issuance of the certificate and sign upon the certificate application

for recounting cannot be considered therefore application filed by

the petitioner is dismiss. As the respondent authority wrongly

dismiss the application of the ballet paper against the law because

petitioner moved an application on 24.02.2025 and certificates are

been issued on 25.02.2025, so the order impugned is not at all

sustainable in the eye of law.

4. Learned counsel for the respondents/State has opposed the

argument advanced by the learned counsel for petitioner and

stated that in the present scenario the results have already been

declared and the private respondent has been declared as

elected. The only remedy available to the petitioner is to file an

Election Petition under Section 122 of the Panchayatraj

Adhiniyam, therefore, the instant petition filed by the petitioner is

not maintainable and deserves to be dismissed on the basis of the

following reasons : -

"1. The article 243 'O' is expressly clear that there can be no interference in electoral matters and the only remedy available to the petitioner is to file an Election Petition.

2. In a recent Judgement of the Hon'ble Apex Court "Dharnin Bai Vs. Bobli Sahu & Ors." the Hon'ble Supreme Court has held that the Election Contest is not an action at law or a suit in Equity but purely a statutory proceeding, provision for it has to be strictly construed.

3. The Hon'ble Supreme Court has also stressed that where a statutory remedy has been created by the statute which gives special remedy for enforcing, the said remedy must be availed. It is most respectfully submitted that the Hon'ble Supreme court has also applied the aforesaid principle in the matter of Panchayat Elections.

4. It is respectfully submitted that the order of Annexure P/1 has been duly passed in accordance with law and in terms of the direction issued by the Hon'ble Court vide order dated 05/03/2025 in WPC No. 1218/2025. It is reiterated that the instant writ petition, where the principal grievance is the defeat of the petitioner in the Panchayat Elections, is not maintainable in its present form and the only remedy available is to file an Election Petition in accordance with the Section 122 of the Panchayat Adhiniyam.

5. I have heard the learned counsel for the parties and also perused

the material available on records. Since the results have already

been declared and the member of the District Panchayat Area

No.10, Village Lauda and other members have already been

elected, as such, the only remedy lies before the petitioner is to

file an Election Petition under Section 122 of C.G Panchayat

Rajya Adhiniyam, the relief as sought by the petitioner for

recounting of the vote cannot be passed in such a situation.

6. Hon'ble Supreme Court in the matter of Sohan Lal vs. Babu

Gandhi and others reported in (2003) 1 SCC 108, held in para

12 as under :

"12. Thus after declaration of results, the Returning Officer has no power either to direct recount or to change the results of the election. Once the result is declared, the only remedy of an aggrieved party is an Election Petition under Section 122."

7. Further, Hon'ble Supreme Court in the matter of Dharmin Bai

Kashyap vs Babli Sahu and Others reported in (2023) 10 SCC

461 decided on 16 August, 2023 held in paras 4, 5, 6, 7, 13 & 17

as under :

"4. Before adverting to the submissions made by the learned counsel for the parties on the issue involved it would be apt to mention that as per Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the said Act) an election under the said Act could be called in question only by a petition presented in the prescribed manner, and in case of Panchayat to the Sub Divisional Officer (R), within 30 days from the date on which the election in question was notified. The State Government in exercise of the powers conferred by sub-section (1) of Section 95 read with Section 43 of the said Act of the 1993 has framed the Rules called the Chhattisgarh Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as the Nirvachan Niyam 1995).

5. Chapter IX of the said Nirvachan Niyam 1995 deals with "Poll and voting for election". Sub rule (1) and sub

rule (2) of Rule 77 thereof being relevant are reproduced here under: -

77. Counting of votes. -

(1) Every ballot paper which is not rejected under rule 76 shall be counted:

Provided that no cover containing tender ballot papers shall be opened and no such ballot paper shall be counted.

(2) After the counting of votes in respect of a polling station has been completed, the Returning Officer or such other officer authorised by him, shall make the entries in result sheet in Form 16 for Panchas and in Part one of the result sheet in Form 17, 18 and 19 for sarpanch, members of Janpad Panchayat and Zila Panchayat respectively and announce the total number of votes polled by each candidate.

6. Rule 80 pertains to the recount of votes. The relevant sub-rule (1) and (2) thereof are reproduced hereunder: -

80. Recount of votes. -

(1) After an announcement has been made by the Returning Officer or such other officer authorised by him, of the total number of votes polled by each candidate under sub-rule (2) of rule 77, a candidate or, in his absence, his election agent or his counting agent may apply in writing to the Returning Officer or such officer authorised by him, for a recount of all or any of the votes already counted, stating the grounds on which he demands such recount.

(2) On such an application being made the Returning Officer or such other officer authorised by him shall decide the matter and may allow the application in whole or in part or may reject it in to if it appears to him to be frivolous or unreasonable.

7. It is pertinent to mention that the State Government has also framed the Rules of 1995, under the said Act of 1993. Rule 5 of the said Rules of 1995 pertains to the "Contents of the petition" and Rule 6 pertains to the "Relief that may be claimed by the petitioner", which read as under: -

5. Contents of the petition. - An election petition shall -

(a) contain a concise statement of all material facts on which the petitioner relies;

(b) set forth with sufficient particulars, the grounds on which the election is called in question;

(c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for the verifications of pleadings.

6. Relief that may be claimed by the petitioner. - A petitioner may claim-

(a) a declaration that the election of all or any of the returned candidates is void; and

(b) in addition, thereto, a further declaration that he himself or any other candidate has been duly elected.

13. It is well settled principle of law that where a right or a liability is created by a statue, which gives a special remedy for enforcing it, the remedy provided by the statue must be availed of. It is also well settled salutary principle that if a Statue provides for doing a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. In Cherukuri Mani w/o Narendra Chowdari vs. Chief Secretary, Government of Andhra Pradesh and Others, it is observed that "where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure.

17. There is hardly any need to reiterate the trite position of law that when it comes to the interpretation of statutory provisions relating to election law, jurisprudence on the subject mandates strict construction of the provisions. Election contest is not an action at law or a suit in equity but purely a statutory proceeding, provision for which has to be strictly construed."

8. Relying on the above judgments passed by the Hon'ble Supreme

Court and time and again also, Hon'ble the Supreme Court as well

as this Court has passed orders stating that in election matters,

once the result has been declared, the application of recounting of

votes cannot be entertained, the remedy lies under Section 122 of

the Panchayat Raj Adhiniyam, 1993.

9. Considering the fact that alternative remedy is available to the

petitioner to file an Election Petition under Section 122 of the

Panchayat Raj Adhiniyam, 1993, the instant petition filed by the

petitioner is found to be not maintainable and it deserves to be

dismissed and is hereby dismissed as not maintainable.

Sd/-