Pranveer Chaudhary vs The State Of Madhya Pradesh
2022 Latest Caselaw 9621 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. 16103 of 2022

     Between:-
     PRANVEER CHAUDHARY S/O SHRI BABULAL
     CHAUDHARY, AGED ABOUT 56 YEARS,
     OCCUPATION: AGRICULTURIST R/O VILLAGE
     MUAAR, TEHSIL GADARWARA, DISTRICT
     NARSINGPUR (MADHYA PRADESH)

                                                .....PETITIONER
     (BY SHRI SATYENDRA JYOTISHI - ADVOCATE)

     AND

1.   THE STATE OF MADHYA PRADESH THROUGH
     PRINCIPAL     SECRETARY      GENERAL
     ADMINISTRATION     VALLABH    BHAWAN
     DISTRICT BHOPAL (MADHYA PRADESH)

2.   M.P. STATE ELECTION COMMISSION THROUGH
     ELECTION OFFICER NIRWACHAN BHAWAN, 58
     ARERA HILLS BHOPAL (MADHYA PRADESH)

3.   RETURNING    OFFICER (COLLECTOR ), JILA
     PANCHAYAT,   DISTRICT    NARSINGHPUR
     (MADHYA PRADESH)

4.   SUB   DIVISIONAL   OFFICER  GADARWAR
     DISTRICT- NARSINGHPUR (MADHYA PRADESH)

5.   PRESIDING OFFICER, POLING BOOTH NO.1 TO
     11, JILA PANCHAYAT, DISTRICT-NARSINGHPUR
     (MADHYA PRADESH)

6.   ASSISTANT ELECTION OFFICER, TEHSILDAR
     TEHSIL      GADARWARA,       DISTRICT-
     NARSINGHPUR (MADHYA PRADESH)
                                     2
                                                               .....RESPONDENTS
         (SHRI SIDDHARTH SETH - ADVOCATE FOR RESPONDENT NOS.2
         TO 6 AND SHRI PRAVEEN NAMDEO - GOVERNMENT ADVOCATE)

      Th is petition coming on for hearing 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 Janpad Panchayat Saikheda Area No.1, District Narsinghpur (M.P.).

Learned counsel for the petitioner submitted that the petitioner has filed

an application for recounting the votes before the respondent No.4 after delay of two days i.e. on 27.06.2022 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 application on 28.06.2022 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. the application has been filed by the petitioner after the delay of two days before the authority for recounting of votes, 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, the application has been filed by the petitioner after the delay of two days before the authority for recounting of votes. 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 17:03:45 +05'30'