Vimla Vijay Khatri vs The State Election Commission
2022 Latest Caselaw 9499 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. 15741 of 2022

        Between:-
        VIMLA VIJAY KHATRI W/O VIJAY KHATRI,
        AGED    ABOUT    35  YEARS, OCCUPATION:
        HOUSEWIFE, R/O VILLAGE SINGHPUR GANJAN,
        GRAM    PANCHAYAT SINGHPUR GANJAN,
        JANPAD PANCHAYAT DEORI, DISTRICT SAGAR
        (MADHYA PRADESH)

                                                               .....PETITIONER
        (BY SHRI SUSHIL MISHRA - ADVOCATE)

        AND

1.      THE STATE ELECTION COMMISSION THROUGH
        ITS COMMISSIONER NIRVACHAN BHAWAN
        BHOPAL (MADHYA PRADESH)

2.      THE DISTRICT ELECTION OFFICER SAGAR
        DISTRICT SAGAR (MADHYA PRADESH)

3.      THE PRESIDING OFFICER GRAM PANCHAYAT
        SINGHPUR     GANJAN JANPAD PANCHAYAT
        DEORI, DISTRICT SAGAR (MADHYA PRADESH)

4.      THE RETURNING OFFICER (PANCHAYAT)
        JANPAD PANCHAYAT DEORI, DISTRICT SAGAR
        (MADHYA PRADESH)

                                                            .....RESPONDENTS
        (SHRI SIDDHARTH SETH 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.2 for recounting of votes

of Polling Booth No.144, 145 and 146 in respect of election held on 01.07.2022 for the post of Sarpanch of Gram Panchayat Amgawan Singhpur Ganjan, Janpad Panchayat Deori, District Sagar (M.P.).

Learned counsel for the petitioner submitted that the petitioner has filed an application for recounting the votes before the respondent No.2 on the same day i.e. on 01.07.2022 (Annexure P/2) 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.2 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.

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 seal or designation of the authority on the application f o r recounting submitted 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 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 seal or designation of the authority on the application, 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 Section 122 of the Adhiniyam at the appropriate time.

Certified copy today.

(S. A. DHARMADHIKARI) JUDGE vc

VARSH Digitally signed by VARSHA CHOURASIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH

A COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=f460d4685ef5a4622238f 0b59b78c2407fd3ee2f619d9ce8e

CHOU 428c224c23ec8ac, pseudonym=4898159F2B2CE665 88391B16E9CF8981F5D6A897, serialNumber=A0506346908D8F

RASIYA DC4A2DA9968A85B01E1D95EF7 D1630553560798626817C4267, cn=VARSHA CHOURASIYA Date: 2022.07.12 06:45:05 -07'00'