Sheikh Hafiz vs M.P. State Election Commission
2022 Latest Caselaw 9624 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. 15676 of 2022

     Between:-
1.   SHEIKH HAFIZ S/O SHEIKH MAZID @ BHURA,
     AGED   ABOUT     44  YEARS, OCCUPATION:
     AGRICULTURE R/O EMAGIRD PANCHAYAT
     ADILPURA DISTRICT BURHANPUR (MADHYA
     PRADESH)

2.   ZIAUDDIN S/O BASSUDEEN INAMDAAR, AGED
     ABOUT 52 YEARS, OCCUPATION: BUSINESS R/O
     PANCHAYAT EMAGIRD, LODHIPURA, DISTRICT
     BURHANPUR (MADHYA PRADESH)

                                                 .....PETITIONERS
     (BY SHRI M.P. TRIPATHI- ADVOCATE)

     AND

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

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

3.   THE RETURNING OFFICER / S.D.O. BURHANPUR
     DISTRICT BURHANPUR (MADHYA PRADESH)

4.   THE TAHSILDAR / ASSISTANT RETURNING
     OFFICER BURHANPUR DISTRICT BURHANPUR
     (MADHYA PRADESH)

5.   ABDUL SHAHID S/O ABDUL HAQUE R/O GRAM
     PANCHAYAT EMAKHURD BURHANPUR, AT
     PRESENT NIYAMATPURA WARD NO. 37
     BURHANPUR (MADHYA PRADESH)

                                                .....RESPONDENTS
     (MS. G.K. PATEL- GOVERNMENT ADVOCATE FOR THE STATE)
     (SHRI SIDDHARTH SETH- ADVOCATE FOR RESPONDENTS NO.1
                                     2
          TO 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 petitioners are seeking a direction to the respondents for recounting of votes of Polling Booth No.174 in respect of election held on 25.06.2022 for the post of Sarpanch of Gram Panchayat Emagird, District Burhanpur (M.P.).

Learned counsel for the petitioners submitted that the petitioners have filed an application for recounting the votes before the respondents on 04.07.2022 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'), 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 petitioners 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 nine days in filing the application for recounting by the petitioners, 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

o f 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 petitioners have 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 delay of nine days in filing the application for recounting submitted by the petitioners. 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 petitioners 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 14:28:38 +05'30'