Rakesh Kumar Kol vs The State Of Madhya Pradesh
2022 Latest Caselaw 10051 MP

                          1
        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                            BEFORE
     HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                   ON THE 21st OF JULY, 2022

             WRIT PETITION No. 16873 of 2022

     Between:-
     RAKESH KUMAR KOL S/O SHRI SUKARU KOL,
     AGED   ABOUT   38   YEARS, OCCUPATION:
     AGRICULTURIST   VILLAGE    CHANDANIYA
     KHURD POST BANDHWA BADA TEHSIL
     SOHAGPUR, DISTRICT SAHDOL (MADHYA
     PRADESH)

                                                  .....PETITIONER
     (BY SHRI SANJEEV KUMAR SINGH- ADVOCATE )

     AND

1.   THE STATE OF MADHYA PRADESH THROUGH
     THE PRINCIPAL SECRETARY PANCHAYAT AND
     RURAL     DEVELOPMENT      DEPARTMENT
     VALLABH    BHAWAN    BHOPAL   (MADHYA
     PRADESH)

2.   COLLECTOR CUM DISTRICT RETURNING
     OFFICER, (LOCAL BODY ELECTION), SHAHDOL
     DISTRICT SHAHDOL (MADHYA PRADESH)

3.   SUB    DIVISIONAL    OFFICER, (REVENUE),
     S OHAGPUR DISTRICT   SHAHDOL (MADHYA
     PRADESH)

4.   TEHSILDAR  CUM    RETURNING     OFFICER
     (LOCAL BODY ELECTION), TEHSIL SOHAGPUR
     JANPAD PANCHAYAT SOHAGPUR (MADHYA
     PRADESH)

5.   HARILALA S/O NOT M ENTION R/O VILLAGE
     AND POST MITHAURI, TEHSIL SOHAGPUR
     (MADHYA PRADESH)

                                                .....RESPONDENTS
     (SHRI PRAVANLAGHN PANDEY- ADVOCATE FOR RESPONDENTS
     NO.2 AND 4 )
                                     2
      This petition coming on for admission this day, th e court passed the
following:
                                     ORDER

In this petition filed under Article 226 of the Constitution of India, the petitioner is seeking a direction to the respondent No.2 for recounting of votes of ward No.13 in respect of election held on 25.06.2022 and counting took place on 28.06.2022 for the post of Member of Jila Panchayat, Sahdol (M.P.) Learned counsel for the petitioner submitted that the petitioner has filed a n application for recounting the votes before the respondent No.2 on 15.07.2022 (Annexure P/4) in accordance with Rule 77(2) r/w Rule 80(1) of the

Madhya Pradesh Panchayat Nirvachan Niyam, 1995, (hereinafter referred to as 'the Rules of 1995') but no action whatsoever has been taken by the respondents to decide the application. In these circumstances, direction may be issued to respondent No.2 to decide the same in accordance with aforesaid provision at the earliest. Learned counsel for the petitioner has further submitted that in identical petition bearing W.P.No.15343/2022 seeking similar relief, this Court has allowed the petition directing the respondents to recount the votes before declaration of results.

Per contra, Shri Pandey opposed the aforesaid contention and submitted that various disputed questions of fact are involved in the present case viz there is delay of 17 days in filing the application for recounting by the petitioner, which can only be done in the election petition. He further submitted that the present writ petition is not maintainable in view of the fact that the election has already been notified on 27.05.2022 and thereafter results are also declared on 14.7.2022. In support of his contention he has placed reliance on the judgment o f the Apex court in the case of Laxmibai Vs. Collector, Nanded and

others, reported in (2020)12 SCC 186 and S.K.Mahaboob Bee (Smt.) and others Vs. State Election Commissioner and others, reported in (2000)10 SCC 512 to contend that the writ petition is not maintainable after the elections have been notified. However, he fairly stated that the petitioner has alternative remedy of filing election petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter shall be referred to as "the Adhiniyam") after the election is over.

Constitutional amendment has been brought in the Constitution incorporating Section 243-O of the Constitution of India, relevant provisions whereof reads as under:-

"243-O. Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution -

                   (a)      xxx xxx xxx
                   (b)       no election to any Panchayat shall be called in

question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

I n the light of the substantive provisions for filing of election petition under Section 122 of the Adhiniyam and in view of the aforesaid pronunciation of law and keeping in view the Division Bench judgment of this Court passed in

W.A. No.809/2022 (Gwalior Bench) dated 11.07.2022 so also looking to the fact that disputed questions of fact are involved in this case which cannot be adjudicated in the writ petition under Article 226 of the Constitution of India, this Court is not inclined to entertain this writ petition at this stage.

So far as identical petition bearing W.P.No.15343/2022 is concerned, the

petitioner therein had applied on the very same day and he had the receiving on the application of the same date. In the instant case there is delay of 17 days in filing the application for recounting by the petitioner so also learned counsel has submitted that no such application has been received by the respondents/authorities. Therefore, no interference is warranted at this stage in exercise of powers under Article 226 of the Constitution of India.

Accordingly, the petition stands dismissed. However, the petitioner would be at liberty to avail the remedy as available to him under Section 122 of the Adhiniyam at the appropriate time.

Certified copy today.

(S. A. DHARMADHIKARI) JUDGE Shanu Digitally signed by SHANU RAIKWAR Date: 2022.07.22 16:43:01 +05'30'