Virbhan Singh Meena vs Mp Statae Election Commission
2022 Latest Caselaw 9493 MP

                          1
        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                            BEFORE
     HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                   ON THE 12th OF JULY, 2022

             WRIT PETITION No. 15600 of 2022

     Between:-
     VIRBHAN SINGH MEENA S/O LATE SHRI RAM
     PRASAD MEENA, AGED ABOUT 75 YEARS,
     OCCUPATION:   FARMER    R/O   VILLAGE
     PANCHAYAT PIPALIYA BAJ KHAN, JANPAD
     PANCHAYAT   FANDA   DISTRICT   BHOPAL
     (MADHYA PRADESH)

                                                 .....PETITIONER
     (BY SHRI ABHIJEET AWASTHI- ADVOCATE)

     AND

1.   MP STATE ELECTION COMMISSION THROUGH
     ITS SECRETARY NIRVACHAN BHAWAN 58
     ARERA HILLS DISTRICT BHOPAL (MADHYA
     PRADESH)

2.   DISTRICT    ELECTION   OFFICER   CUM
     COLLECTOR OFFICE OF THE COLLECTOR
     DISTRICT BHOPAL (MADHYA PRADESH)

3.   AUTHORIZED OFFICER AND S.D.M. BHOPAL
     TEHSIL HUZUR, DISTRICT BHOPAL OFFICE AT
     A-BLOCK, OLD SECRETARIAT PREMISES,
     BHOPAL (MADHYA PRADESH)

4.   RETURNING OFFICER, PANCHAYAT BLOCK
     FA N D A TEHSIL HUZUR, DISTRICT BHOPAL
     OFFICE A BLOCK,       OLD  SECRETARIAT
     PREMISES, BHOPAL (MADHYA PRADESH)

5.   BHAGWAN SINGH S/O RAMSWAROOP R/O
     VILLAGE PIPALIYA, BAJ KHAN, TAHSIL HUZUR,
     DISTRICT BHOPAL (MADHYA PRADESH)

6.   DEVENDRA SHARMA S/O RAM NARAYAN
     SHARM A R/O VILLAGE PIPALIYA BAJ KHAN,
     TAHSIL HUZUR, DISTRICT BHOPAL (MADHYA
     PRADESH)
                                2
7.       DWARKA PRASAD LODHI S/O SHRIKISHAN R/O
         VILLAGE PIPALIYA BAJ KHAN, TAHSIL HUZUR,
         DISTRICT BHOPAL (MADHYA PRADESH)

8.       NARENDRA SINGH S/O KEDARNTH SINGH R/O
         VILLAGE PIPALIYA BAJ KHAN, TAHSIL HUZUR,
         DISTRICT BHOPAL (MADHYA PRADESH)

                                                             .....RESPONDENTS
         (SHRI SIDDHARTH SETH- ADVOCATE FOR RESPONDENTS NO.1,
         2 AND 4)

      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.3 for recounting of votes

of Polling Booth No.100 and 101 in respect of election held on 25.06.2022 for the post of Sarpanch of Gram Panchayat Pipaliya Bhaj Khan, Janpad Panchayat Fanda, District Bhopal (M.P.).

Learned counsel for the petitioner submitted that the petitioner has filed a n application for recounting the votes before the respondent No.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 the authority refused to accept the same. Then the application has been sent through Whatsapp 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.

P er 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 application for recounting by the petitioner filed on the same day and there is no provision for sending the application through whatsapp. These disputed questions of fact can only be adjudicated 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 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."

In 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 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 no application for recounting by the petitioner filed on the same day and there is no provision for sending the application through whatsapp and 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 Section 122 of the Adhiniyam at the appropriate time.

Certified copy today.

(S. A. DHARMADHIKARI) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2022.07.12 19:12:51 +05'30'