Anil Hemu Mahajan vs The State Of Madhya Pradesh
2022 Latest Caselaw 9623 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. 15844 of 2022

        Between:-
        ANIL HEMU MAHAJAN S/O SHRI HEMU
        JAIRAM, AGED ABOUT 43 YEARS, OCCUPATION:
        LABOUR HOUSE NO. 324 WARD NO. 10 NAYA
        MOHAMMADPURA         GANESH      COLONY
        BURHANPUR DISTRICT BURHANPUR (MADHYA
        PRADESH)

                                                           .....PETITIONER
        (BY SHRI PRADEEP KUMAR NEMA- ADVOCATE)

        AND

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

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

3.      THE PRESIDING OFFICER GRAM PANCHAYAT
        MOHAMMADPURA      JANPAD   PANCHAYAT
        BURHANPUR DISTRICT BURHANPUR (MADHYA
        PRADESH)

4.      THE   RETURNING   OFFICER (PANCHAYAT)
        JANPAD PANCHAYAT BURHANPUR DISTRICT
        BURHANPUR (MADHYA PRADESH)

                                                        .....RESPONDENTS
         (Ms. G.K. PATEL- GOVERNMENT ADVOCATE FOR THE STATE)
        (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 respondents for recounting of votes of Polling Booth No.147, 148, 149, 150, 151 and 152 in respect of election held on 25.06.2022 for the post of Sarpanch of Gram Panchayat Mohammadpura, District Burhanpur (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 25.06.2022 (Annexure P/3) 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

30.06.2022 before respondent No.2 so also through registered post, 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 of the authority on the application fo 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 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, 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: 2022.07.13 14:29:03 +05'30'