Radha Sharma vs The State Of Madhya Pradesh
2022 Latest Caselaw 9703 MP

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          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. 16380 of 2022

      Between:-
      RADHA SHARMA D/O SHRI MOHAN RAM
      SHARMA,     AGED    ABOUT   47   YEARS,
      OCCUPATION: AGRICULTURIST R/O VILLAGE
      KHAMHIDOL, JANPAD PANCHAYAT BUDHAR,
      DISTRICT- SHAHDOL, (MADHYA PRADESH)

                                                          .....PETITIONER
      (BY SHRI SATENDRA SINGH TIWARI - ADVOCATE)

      AND

1.    THE STATE   OF MADHYA PRADESH THROUGH
      PRINCIPAL    SECRETARY PANCHAYAT AND
      RURAL       DEVELOPMENT     DEPARTMENT
      VALLABH     BHAWAN    BHOPAL   (MADHYA
      PRADESH)

2.    COLLECTOR CUM DISTRICT RETURNING
      OFFICER (LOCAL BODY ELECTION) SHAHDOL
      DISTRICT SHAHDOL (MADHYA PRADESH)

3.    SUB DIVISIONAL OFFICER (REVENUE) BUDHAR
      DISTRICT SHAHDOL (MADHYA PRADESH)

4.    TAHSILDAR   CUM    RETURNING OFFICER
      (LOCAL BODY ELECTION) JANPAD PANCHAYAT
      BUDHAR DISTRICT SHAHDOL (MADHYA
      PRADESH)

5.    SHARDA PATEL W/O NOT KNOWN R/O GRAM
      PANCHAYAT MAJHOLI JANPAD PANCHAYAT
      BUDHAR DISTRICT SHAHDOL (MADHYA
      PRADESH)

                                                       .....RESPONDENTS
      (BY SHRI TANMAY MESHRAM - ADVOCATE)

     This petition coming on for admission this day, th e court passed the
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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 08.07.2022 for the post of Sarpanch of Gram Panchayat Majhauli, Janpad Panchayat Budhar, District Shahdol (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 three days i.e. on 11.07.2022 (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 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 three days in filing the application and no seal or designation of the authority 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 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 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 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 a delay of three days in filing the application and no 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 DPS Digitally signed by DHEERAJ PRATAP SINGH Date: 2022.07.14 18:12:18 +05'30'