Devendra Maravi vs The State Of Madhya Pradesh
2022 Latest Caselaw 9702 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. 16187 of 2022

     Between:-
     DEVENDRA MARAVI S/O SHRI HARI SINGH
     MARAVI, AGED ABOUT 43 YEARS VILLAGE
     BAKCHERA GODI, POST PHOOL SAGAR TEHSIL
     AND DISTT. MANDLA (MADHYA PRADESH)

                                                  .....PETITIONER
     (BY SHRI KASHI RAM PATEL- ADVOCATE)

     AND

1.   THE STATE OF MADHYA PRADESH THROUGH
     ITS   PRINCIPAL  SECRETARY   GENERAL
     ADMINISTRATIVE            DEPARTMENT
     MANTRALAYA SATPURA BHAWAN BHOPAL
     (MADHYA PRADESH)

2.   CHIEF ELECTION COMMISSIONER MADHYA
     PRADESH      ELECTION      COMMISSION
     NIRVACHAN BHAVAN 58 ARERA HILLS BHOPAL
     (MADHYA PRADESH)

3.   CHIEF ELECTION OFFICER AND COLLECTOR
     MANDLA MANDLA (MADHYA PRADESH)

4.   DISTRICT   ELECTION       OFFICER MANDLA
     (MADHYA PRADESH)

5.   SHRI SHAILESH MISHRA S/O SHRI ASHWANI
     M ISHR A CANDIDATE WARD NO. 1 VILLAGE
     BAKCHERA GODI PHOOL SAGAR MANDLA
     (MADHYA PRADESH)

6.   DAINIK BHASKAR THROUGH EDITOR MANDLA
     JILA PANCHAYAT COMPLEX JAWAHAR WARD
     (MADHYA PRADESH)

                                                .....RESPONDENTS
     (SHRI LALIT JOGLEKAR - GOVERNMENT ADVOCATE AND SHRI
     TANMAY MESHRAM- ADVOCATE FOR RESPONDENT NOS. 2 TO 4
                                     2
        )

      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 Nos. 31 and 51 in respect of election held on 01.07.2022 for the post of Member of Jilla Panchayat, Ward No. 1, Mandla (M.P.).

Learned counsel for the petitioner submitted that the petitioner has filed an application for recounting the votes before the respondent Nos.3 and 4 on 04.07.2022 (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 respondent Nos. 3 and 4 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 e r contra, Shri Meshram opposed the aforesaid contention and submitted that various disputed questions of fact are involved in the present case viz. there is delay of 3 days on the application for 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."

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 3 days in submitting the application for recounting, 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 ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2022.07.14 18:14:58 +05'30'