Smt. Tavindar Gujral vs The State Of Madhya Pradesh
2022 Latest Caselaw 9618 MP

                                  1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                              BEFORE
       HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                          ON THE 13th OF JULY, 2022

                   WRIT PETITION No. 16093 of 2022

        Between:-
        SMT.     TAVINDAR      GUJRAL    W/O
        SHAMBHOONATH, AGED ABOUT 61 YEARS,
        OCCUPATION:     BUSINESS    BALHWARA
        JABALPUR (MADHYA PRADESH)

                                                               .....PETITIONER
        (BY SHRI ASEEM TRIVEDI - ADVOCATE)

        AND

1.      THE STATE OF MADHYA PRADESH THROUGH
        THE PRINCIPAL SECRETARY PANCHAYAT AND
        SOCIAL DEVELOPMENT VALLABH BHAWAN
        DISTRICT BHOPAL (MADHYA PRADESH)

2.      THE COLLECTOR CUM DISTRICT ELECTION
        O F F I C E R (LOCAL ELECTION) DISTRICT
        JABALPUR (MADHYA PRADESH)

3.      THE RETURNING OFFICER (PANCHAYAT)
        DISTRICT JABALPUR (MADHYA PRADESH)

4.      THE    ELECTION   COMMISSION THROUGH
        ELECTION   OFFICER,  STATE   ELECTION
        COMMISSION BHOPAL (MADHYA PRADESH)

                                                            .....RESPONDENTS
        (BY SHRI SIDDHARTH SETH - ADVOCATE)

      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 respondents for recounting of votes in respect of election held on 25.06.2022 for the post of Janpad Panchayat

Sadasya of Janpand Panchayat Bargi, District Jabalpur (M.P.).

Learned counsel for the petitioner submitted that the petitioner has sent the application through email and whatsapp for recounting the votes before the respondent on the same day 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'). He has also filed an undated application before respondent No.3, but no action whatsoever has been taken by the respondents to decide the application. In these circumstances, direction may be issued to respondents 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 acknowledgment, seal or designation and there is no provision for submitting the application through email or whatsapp for recounting, 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."

I n 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 and keeping in view the Division Bench judgment of this Court passed in W.A. No.809/2022 (Gwalior Bench) dated 11.07.2022 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 acknowledgment, seal or designation of the authority on the application and

there is no provision of submitting the application through email or whatsapp for recounting of votes, 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 DPS

Digitally signed by DHEERAJ PRATAP SINGH Date: 2022.07.13 17:08:08 +05'30'