Shanti Kushwaha vs The State Of Madhya Pradesh
2022 Latest Caselaw 9202 MP

                                                                     1
                                                IN THE HIGH COURT OF MADHYA PRADESH
                                                             AT JABALPUR
                                                                 BEFORE
                                          HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                              ON THE 9th OF JULY, 2022

                                                      WRIT PETITION No. 15464 of 2022

                                           Between:-
                                           SHANTI KUSHWAHA W/O SHRI KALLU PRASAD
                                           KUSHWAHA , AGED ABOUT 47 YEARS,
                                           OCCUPATION: SARPANCH CANDIDATE WARD
                                           NO. 7 VILLAGE GEHBARA TEHSIL GOURIHAR
                                           DISTRICT-   CHHATARPUR,M.P.   (MADHYA
                                           PRADESH)

                                                                                                  .....PETITIONER
                                           (BY SHRI ANIL LALA - ADVOCATE)

                                           AND

                                   1.      THE STATE OF MADHYA PRADESH THROUGH
                                           ITS PRINCIPAL SECRETARY PANCHAYAT
                                           DEPARTMENT VALLABH BHAWAN BHOPAL
                                           M.P. (MADHYA PRADESH)

                                   2.      THE MADHYA PRADESH S TAT E ELECTION
                                           COM M ISSION , THROUGH THE SECRETARY
                                           DISTRICT- BHOPAL (M.P.) (MADHYA PRADESH)

                                   3.      THE   DISTRICT   RETURNING  OFFICER,
                                           CHHATARPUR DISTRICT CHHATARPUR M.P.
                                           (MADHYA PRADESH)

                                                                                               .....RESPONDENTS
                                           (RESPONDENTS/STATE BY SHRI PRAVEEN NAMDEO -
                                           GOVERNMENT ADVOCATE)
                                           (RESPONDENTS NO.2 AND 3 BY SHRI SIDDHARTH SETH -
                                           ADVOCATE)

                                         This petition coming on for admission this day, th e court passed the
                                   following:
                                                                      ORDER

Signature Not Verified SAN

In this petition filed under Article 226 of the Constitution of India, the Digitally signed by HEMANT SARAF

petitioner is seeking a direction to the respondent No.3 for recounting of votes Date: 2022.07.09 18:39:30 IST

of Polling Booth No.55, 56, 57, 58, 59, 60 and 61 in respect of election held on 01.07.2022 for the post of Sarpanch of Gram Panchayat Gehbara, Zila Panchayat Gourihar, District Chhattarpur.

Learned counsel for the petitioner submitted that the petitioner has filed an application for recounting the votes before the respondent No.3 on the same day, i.e. on 1.07.2022 (Annexure P/3) 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 respondent No.3 to decide the application. In these circumstances, direction may be issued to respondent No.3 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 Seth opposed the aforesaid contention and submitted that various disputed questions of fact are involved in the present case viz. there is no receiving on the application for recounting submitted by the petitioner, which are to be adjudicated by recording of evidence, 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 to be declared on 14.7.2022. In support of his contention he has placed reliance on the judgment of 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 Signature Not Verified SAN

Commissioner and others, reported in (2000)10 SCC 512 to contend that Digitally signed by HEMANT SARAF Date: 2022.07.09 18:39:30 IST

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 after the election is over.

In view of the aforesaid pronunciation of law and 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.15434/2022 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 no receiving on the application for recounting so also the fact that in reply 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 the law at the appropriate time.

Certified copy today.

(S. A. DHARMADHIKARI) JUDGE HS

Signature Not Verified SAN

Digitally signed by HEMANT SARAF Date: 2022.07.09 18:39:30 IST