Smt. Rashmi Singh vs The State Of Madhya Pradesh
2022 Latest Caselaw 9657 MP

                                                                    1
                                                IN THE HIGH COURT OF MADHYA PRADESH
                                                             AT JABALPUR
                                                                 BEFORE
                                          HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                            ON THE 14th OF JULY, 2022

                                                     WRIT PETITION No. 16262 of 2022

                                           Between:-
                                           SMT. RASHMI SINGH W/O SHRI MRIGENDRA
                                           SINGH , AGED ABOUT 35 YEARS, OCCUPATION:
                                           HOUSE WIFE GRAM PANCHAYAT KHALWARA
                                           TEHSIL VIJAYRAGHAVGARH AND DISTRICT
                                           KATNI (MADHYA PRADESH)

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

                                           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       COMMISSIONER NIRWACHAN
                                           BHAWAN 58 ARERA HILLS BHOPAL M.P.
                                           (MADHYA PRADESH)

                                   3.      ELECTION OFFICER (COLLECTOR ) DISTRICT
                                           KATNI (MADHYA PRADESH)

                                   4.      SUB    DIVISIONAL  OFFICER   KATNI
                                           VIJAYRAGHAVGARH AND DISTRICT KATNI
                                           (MADHYA PRADESH)

                                   5.      PRESIDING OFFICER BOOTH NO. 151 GRAM
                                           PANCHAYAT       KHALWARA      TEHSIL
                                           VIJAYRAGHAVGARH AND DISTRICT KATNI
                                           (MADHYA PRADESH)

                                                                                             .....RESPONDENTS
                                           (RESPONDENTS NO.2 BY SHRI TANMAY MESHRAM - ADVOCATE)
Signature Not Verified
  SAN

                                         This petition coming on for admission on this day, the court passed the
Digitally signed by HEMANT SARAF
Date: 2022.07.14 18:24:54 IST

                                   following:
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                                                                        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.151 in respect of election held on 25.06.2022 for the post of Sarpanch of Gram Panchayat Khalwara, Janpad Panchayat Vijayraghavgarh, District Katni (M.P.).

Learned counsel for the petitioner submitted that the petitioner has filed a n application for recounting the votes before the respondent No.5 on 27.06.2022 (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'); 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 delay of two days in filing the application, and such disputed questions can only be adjudicated 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 b een 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 Signature Not Verified

o f the Apex court in the case of Laxmibai Vs. Collector, Nanded and SAN

Digitally signed by HEMANT SARAF Date: 2022.07.14 18:24:54 IST 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. Signature Not Verified SAN

So far as identical petition bearing W.P.No.15343/2022 is concerned, the Digitally signed by HEMANT SARAF

petitioner therein had applied on the very same day and he had the receiving on Date: 2022.07.14 18:24:54 IST

the application of the same date. In the instant case, the application has been filed with delay of two days, 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 HS

Signature Not Verified SAN

Digitally signed by HEMANT SARAF Date: 2022.07.14 18:24:54 IST