Azad Khan vs The State Election Commission
2022 Latest Caselaw 9502 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. 15779 of 2022

        Between:-
        AZAD KHAN S/O ROSHAN KHAN, AGED ABOUT
        42   YEARS, OCCUPATION: AGRICULTURIST
        VILLAGE JHUNKU GRAM PANCHAYAT JHUNKU,
        JANPAD   PANCHAYAT DEORI,    DISTRICT-
        SAGAR, (MADHYA PRADESH)

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

        AND

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

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

3.      THE PRESIDING OFFICER GRAM PANCHAYAT
        JHUNKU, GRAM PANCHAYAT JHUNKU, JANPAD
        PANCHAYAT DEORI DISTRICT SAGAR (M.P.)
        (MADHYA PRADESH)

4.      THE RETURNING OFFICER (PANCHAYAT)
        JANPAD PANCHAYAT DEORI DISTRICT SAGAR
        (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.98, 99, 100, 101 and 102 in respect of election held on 01.07.2022 for the post of Sarpanch of Gram Panchayat Jhunku, 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.3 on the same day i.e. on 01.07.2022 (Annexure P/1) 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'); and it also bears receiving of the same day, 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 seal or designation of the authority on the application for 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.

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.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 Shanu

Digitally signed by SHANU RAIKWAR Date: 2022.07.12 19:12:04 +05'30'