Vishnu Yadav vs The M.P. State Election ...
2022 Latest Caselaw 9512 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. 15863 of 2022

     Between:-
     VISHNU YADAV S/O SHRI LAXMI PRASAD,
     AGED   ABOUT   38  YEARS, OCCUPATION:
     AGRICULTURE,  R/O  GRAM    PANCHAYAT
     DANTGORA KHAS BANNE BUJRAJ TEHSIL
     PLERA DISTRICT TIKAMGARH (MADHYA
     PRADESH)

                                                   .....PETITIONER
     (BY SHRI SANJAY PATEL - ADVOCATE)

     AND

1.   THE M.P. STATE ELECTION COMMISSION
     THROUGH ITS COMMISSIONER NIRVACHAN
     BHAWAN 58 ARERA HILLS BHOPAL (MADHYA
     PRADESH)

2.   THE   DISTRICT    ELECTION    OFFICER,
     TIKAMGARH DISTRICT TIKAMGARH (MADHYA
     PRADESH)

3.   THE PRESIDING OFFICER, GRAM PANCHAYAT
     DANTGORA,      TEHSIL PLERA,  DISTRICT
     TIKAMGARH (MADHYA PRADESH)

4.   THE ASSISTANT RETURNING OFFICER, JANPAD
     PANCHAYAT     PLERA J A N P A D PANCHAYAT
     PLERA, DISTRICT TIKAMGARH (MADHYA
     PRADESH)

5.   KUNWAR PRATAP SINGH S/O RAM SINGH
     OCCUPATION:      AGRICULTURE       GRAM
     PANCHAYAT DANTGORA KHAS BANNE BANNE,
     BUJRAJ TEHSIL PLERA, DISTRICT TIKAMGARH
     (MADHYA PRADESH)

                                                 .....RESPONDENTS
     (SHRI SIDDHARTH SETH - 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 Polling Booth No.202, 203, 204 and 205 in respect of election held on 01.07.2022 for the post of Sarpanch of Gram Panchayat Dantgora Khas District Tikamgarh (M.P.).

Learned counsel for the petitioner submitted that counting of the votes was done of 04.07.2022 and the petitioner has filed an application for recounting the votes before the respondent No.2 on 05.07.2022 (Annexure P/7)

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 delay of one day in filing the application for recounting the votes and there is no seal or designation of the authority on the application 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 delay of one day in filing the application for recounting the votes and 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

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

ASIYA DC4A2DA9968A85B01E1D95EF7 D1630553560798626817C4267, cn=VARSHA CHOURASIYA Date: 2022.07.12 06:41:07 -07'00'