Madhya Pradesh High Court
Seema Sharma vs State Of Madhya Pradesh on 2 August, 2022
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 2nd OF AUGUST, 2022
WRIT PETITION No. 16560 of 2022
Between:-
1. SEEMA SHARMA D/O LATE AWADH PRASAD SHARMA,
AGED ABOUT 30 YEARS, OCCUPATION: SOCIAL
WORKER R/O. VILLAGE PACHOR, POST TEEKAR,
TAHSIL SIHAWAL, DISTRICT SIDHI (M.P.) (MADHYA
PRADESH)
2. SAVITA SONI W/O SHRI RAMASHANKAR SONI, AGED
ABOUT 30 YEARS, OCCUPATION: HOUSEWIFE R/O.
VILAGE BAGHAUDI, P.S. AMILIYA, DISTRICT SIDHI
(M.P.) (MADHYA PRADESH)
3. SAROJ DWIVEDI W/O SHRI CHANDRIKA PRASAD
DWIVEDI, AGED ABOUT 45 YEARS, OCCUPATION:
HOUSEWIFE R/O. VILLAGE VIJAYPUR POST BITHAULI,
P.S. AMILIYA, DISTRICT SIDHI (M.P.) (MADHYA
PRADESH)
4. SUNITA SAHU W/O SHRI DADDI SAHU, AGED ABOUT 24
YEARS, OCCUPATION: HOUSEWIFE R/O. VILLAGE AND
POST AMILIYA, DISTRICT SIDHI (M.P.) (MADHYA
PRADESH)
5. AARTI DWIVEDI W/O SHRI BRIJESH DWIVEDI, AGED
ABOUT 24 YEARS, OCCUPATION: HOUSEWIFE R/O.
VILLAGE AND TAHSIL SONVARSHA, DISTRICT SIDHI
(M.P.) (MADHYA PRADESH)
6. USHA GOPAL PATEL W/O SHRI AJEET KUMAR PATEL,
AGED ABOUT 33 YEARS, OCCUPATION: HOUSEWIFE R/O.
VILLAGE KADIPAR POST TEEKER DISTRICT SIDHI
(M.P.) (MADHYA PRADESH)
7. SUNITA PANDEY W/O SHRI DUGGISHARAN PANDEY,
AGED ABOUT 26 YEARS, OCCUPATION: HOUSEWIFE R/O.
VILLAGE BADAGAON, DISTRICT SIDHI (M.P.) (MADHYA
PRADESH)
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8. KAMLA DWIVEDI W/O SHRI LAVLESH DWIVEDI, AGED
SAN
Digitally signed by SUSHMA KUSHWAHA
ABOUT 22 YEARS, OCCUPATION: HOUSEWIFE R/O.
Date: 2022.08.02 16:37:54 IST
VILLAGE HATUA BARHA POST HATUA KHAS, DISTRICT
SIDHI (M.P.) (MADHYA PRADESH)
2
9. SHYAMKALI PATEL W/O SHRI RAJNEESH PATEL, AGED
ABOUT 35 YEARS, OCCUPATION: HOUSEWIFE R/O.
VILLAGE JAMUI, POST TEEKER DISTRICT SIDHI (M.P.)
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI )
AND
1. STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY PANCHAYAT AND RURAL
DEVELOPMENT DEPARTMENT VALLABH BHAWAN,
DISTRICT BHOPAL (M.P.) (MADHYA PRADESH)
2. STATE ELECTION COMMISSION THROUGH ITS
SECR ETARY NIRVACHAN BHAWAN, ARERA HILLS,
DISTRICT BHOPAL (M.P.) (MADHYA PRADESH)
3. COLLECTOR/DISTRICT ELECTION OFFICER, SIDHI
C O L L E C T O R DISTRICT SIDHI (M.P.) (MADHYA
PRADESH)
4. RETURNING OFFICER (PANCHAYAT) CUM SUB
DIVISIONAL OFFICER, SIHAWAL PANCHAYAT AND
RURAL DEVELOPMENT DEPARTMENT SIHAWAL
DISTRICT SIDHI (M.P.) (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI )
This petition coming on for hearing this day, the court passed the following:
ORDER
By filing this petition under Article 226 of the Constitution of India, petitioners are
prayed for following reliefs:-
( 1 ) To issue a writ in the nature of mandamus directing the
respondents No.2 & 3 to hold fresh elections/fresh poll at every
polling station of Ward No.14 for the post of Member of Ward
No. 14, Zila Panchayat Sidhi, District Sidhi (M.P.).
( 2 ) To issue a writ in the nature of mandamus directing the
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respondents to call for the entire record so far it relates to ballot
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Date: 2022.08.02 16:37:54 IST
papers and counting of Polling Booth pertaining to election of
Ward No. 14, Zila Panchayat Sidhi, District- Sidhi (M.P.) from
the office of respondent no.3 & 4 for kind perusal of this Hon'ble
Court.
(3) To grant any other relief, which this Hon’ble Court
may deem fit and Proper in the facts and circumstances of the
case including cost of the litigation in favour of the petitioners.
(2) The petitioners in pursuant to the notification issued for conducting the
Panchayat Election submitted their nomination form for the post of Ward member of
Ward No.14, Amiliya, Janpad Sihawal, District Sidhi. There were total 10 candidates who
have submitted their nomination form and accordingly symbols were allotted to them.
(3) Counsel for petitioners submits that in Ward No.14 polling was conducted
on 25/06/2022 and counting was also done on the same day. Petitioners have filed this
petition raising grievance that at the time of counting of votes in Ward No.14 several
irregularities were noticed and numerous forged ballot papers were found in the ballot
box. The said irregularities were highlighted by the agents of the petitioners to the
Returning Officer by making request for recounting of votes, but that request has been
refused. It is alleged by the petitioners that at the time of counting of votes their election
agents had been ousted from the polling booth, so as to carry out illegal activities like
mixing forged ballot papers and rejecting valid votes of the candidates. It is submitted
that though the Returning Officer came on the spot, but without taking any cognizance of
the objections raised by the petitioners, he left the place.
(4) It has been brought to the knowledge of the Court that in earlier round of
litigation the petitioners have filed a Writ Petition No.15232/2022 asking interference in
the matter of election, so as to conduct a fair election. The said Writ Petition was
disposed of by this Court on the basis of undertaking given by counsel for Election
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Commission, by which he apprised the Court that grievance raised by petitioners and to
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repoll of vote is under active consideration of State Election Commission and result of
Date: 2022.08.02 16:37:54 IST
elected candidates for Ward No.14 Amiliya, Janpad Sihawal District Sidhi shall not be
declared and certificate will not be issued, unless decision is taken by the Election
Commission and communicated to the petitioners. Liberty was also granted to the
petitioners to approach again, if any new cause of action arises.
(5) Counsel for petitioners while advancing his argument has submitted that
Election Commission took a decision for repoll in booth No.39 of Ward No.14 and a
date i.e 17/07/2022 was fixed for it. As per petitioners, the Election Commission without
following the mandatory requirement envisaged under Rule 77 of Madhya Pradesh
Panchayat Nirwachan Niyam, 1995 (hereinafter referred to as ‘Niyam 1995)
instead of fresh poll in whole Ward No.14 only conducting the same in booth No.39 of
Ward No.14.
(6) Contending that such a decision of Election Commission is completely
arbitrary and contrary to the provisions of Rule 77 of '€˜Niyam, 1995', it has been
stated that its a material irregularity which indicates unlawful conduct of Election
Commission. Referring to sub rule 2 of Rule 72 of '€˜Niyam 1995'€™ it has been
contended that if the decision of repoll is taken, there should be some notification about
the date and hours fixed for repolling. It is submitted that the voters of the area where
repolling was to be done were also not properly noticed. It is nothing, but an eye wash
and clear cut mockery of election process. He submits that being aggrieved with the said
decision of Election Commission, this petition has been filed by the petitioners on the
same day i.e 17/07/2022 which was fixed for repolling in Booth No.39 of Ward No.14
and the Court taking cognizance in the matter directed the respondents to file reply. It
was also directed that after reply matter will be heard.
(7) Vehemently opposing the aforesaid contentions of counsel for petitioners
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Shri Naman Nagarath, senior Advocate, appearing for respondent no.5 submits that this
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Date: 2022.08.02 16:37:54 IST
petition has rendered infructuous for the reason that repolling has already been done as
per the assurance given by the Election Commission in earlier round of litigation, but that
decision is not under challenge. He submits that no ground about commission of any
irregularity during the course of repoll has been raised and if petitioners have any
grievance, they may file a fresh petition challenging the decision of repoll or any
irregularity committed during that period. It is further submitted that counting has already
been done and respondent no.5 secured 11379 votes whereas nearest candidate defeated
by the respondent no.5 secured only 4134. According to him, the difference between
them is more than 7,000 votes. He submits that as per the allegations made in polling
booth no.39 only 20 ballot papers were found forged as not similar to the other and the
name of candidates participated in the election not same. He further submits that total
number of votes in polling booth no.39 were 471 and if all the votes are transferred to the
petitioners even then it will not give any affect in the result.
(8) He further submits that a bare reading of pleadings of this petition would
make it explicitly clear that it has been drafted carelessly as nothing specific therein. He
has drawn attention of this Court towards the pleading of paragraph No.5.4 of the
petition, wherein in so many places petitioners have used word "in some of the polloing
booths"€ "€œin some of the places"€Â, meaning thereby they are also not sure
as to where irregularities have been committed. Under such a circumstance, this petition
is absolutely misconceived and deserves to be dismissed.
(9) It is worth noting that in view of the undertaking given by the counsel for
Election Commission in earlier round of litigation they have passed an order on
15/07/2022 (Annexure-R-1) for repolling in booth no.39 on 17/07/2022, wherein date and
timing for repolling was clearly mentioned and reasons were also assigned as to why
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decision for repoll has been taken. The order clearly contains that though there were
mismatch found in 20 ballot papers, it was nothing but a printing mistake, because ballot
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papers are printed at district level, therefore, at the moment when this mistake came to the
knowledge of the Election Commission, they have ordered for repolling. Furthermore, it
has been pleaded that the application submitted before the returning officer by the
petitioners are on record, in which they have claimed only for recounting of votes, but
not for repolling, despite that in the interest of justice and to maintain transparency the
order of repolling has been issued. He further pleaded that the order of repoll is not
under challenge and if petitioners have any grievance, they may challenge the same by
filing another petition. However, in the present facts and circumstances and in view of
the settled legal position considering the bar as provided under Section 243-O of
Constitution of India, the petitioners can avail the remedy of Election Petition as
contained in Section 122 of M.P.Panchayat Raj Evam Gram Swaraj Adhniam 1993
(hereinafter referred to as 'Adhiniam 1993'€™). He submits that this Court has also
disposed of number of petitions giving liberty to the petitioners to file an Election Petition
and raise grievance therein.
(10) I have considered the exhaustive submissions having regard to the
materials on record.
(11) Although, during the course of argument counsel for petitioners
emphatically has argued about the irregularities committed during the course of counting
of votes and also the decision taken by the Election Commission for repolling, but that is
not the subject matter of this writ petition. In earlier round of litigation, Writ Petition filed
b y the petitioners was disposed of with liberty to approach again, if any new cause of
action arises. As per the undertaking, given by counsel for Election Commission,
authorities have taken decision for repolling. There is no infringement of any rule. If
petitioners have pointed out any irregularities, they may file a fresh petition as per liberty
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granted to them by the Court.
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Date: 2022.08.02 16:37:54 IST
(12) I am in full agreement with the submissions made by counsel for
respondent no.5 that difference between the votes of respondent no.5 and other
candidates is about more than 7,000/-. There are 471 votes in booth no.39 and even if all
votes go in favour of petitioners it will not matter and will not change the result of
election. This factual position has not been disputed by any of the parties. Merely
because, some irregularities have been committed for which decision has already been
taken by the Election Commission, the whole election cannot be set-aside and repolling
cannot be ordered, because in other polling booths no objection has come. The
objection was raised only in respect of booth no.39.
(13) In the background of aforesaid broad facts and submissions made by
counsel for parties and upon perusal of voluminous record, under such a circumstance, I
am not inclined to interfere in the petition, because at this stage grievance of petitioners
with regard to booth no.39 has been ventilated by the Election Commission and repoll
has already been done. There are several disputed facts involved in this case which have
been pointed out by the parties, for which Writ Petition is not the proper remedy,
therefore, it is appropriate for the petitioners that still if they have any grievance, they may
file Election Petition under Section 122 of 'Adhiniam 1993'€™ because High Court in
number of cases has observed that Writ Petition is not the proper remedy for getting
relief in a panchayat election.
(14) Looking to the peculiar facts and circumstances of this case, it will be
apposite to refer the judgment reported in 1996 MPLJ 134 (Sugnabai w/o Hariram Vs.
Election Officer, Gram Panchayat Bamni Bujurga Tah Kannod, Dewas and
others). Likewise in 2017 (3) MPLJ 693 (Sandhaya Mihilal Rai Vs. State of M.P &
others), wherein the High Court has observed that once repolling of the election is
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already held and as per the result one candidate is declared elected, there is no interim
order passed by the Court in favour of the petitioners then remedy lies to the petitioners
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Date: 2022.08.02 16:37:54 IST
only to file Election Petition. Here in this case also situation is same, repolling in both
no.39 had already been done and that part of election is not under challenge and even
result of repolling of booth no.39 would not affect the result and position of respondent
no.5 in any manner. This Court in number of petitions, like W.P.No.16060/2022 (Smt.
Parwati Ahirwar Vs. State of M.P and others) W.P.No.16662/2022 (Smt. Shyamwati Vs.
State of M.P.and others) and other petitions have observed that Election Petition is the
best remedy to raise the ground and to get the election set-aside.
(15) With the aforesaid, this petition is disposed of.
(16) However, petitioners are at liberty to raise all these grounds by filing
Election Petition under Section 122 of 'Adhniam 1993'€™ if they are still aggrieved
with the repolling of booth no.39 and irregularities committed during the election of Ward
No.14.
(SANJAY DWIVEDI)
JUDGE
S /-
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Digitally signed by SUSHMA KUSHWAHA
Date: 2022.08.02 16:37:54 IST
