Krishna Kumar Chouksey vs The State Of Madhya Pradesh
2022 Latest Caselaw 9882 MP

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                                            IN THE HIGH COURT OF MADHYA PRADESH
                                                         AT JABALPUR
                                                               BEFORE
                                        HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                         ON THE 19th OF JULY, 2022

                                                   WRIT PETITION No. 16261 of 2022

                                        Between:-
                                        KRISHNA KUMAR CHOUKSEY S/O SHRI
                                        DHANESHWAR PRASAD CHOUKSEY , AGED
                                        ABOUT 41 YEARS, VILLAGE SAGAR TAHSIL
                                        MANDLA DISTRICT MANDLA M.P. (MADHYA
                                        PRADESH)

                                                                                            .....PETITIONER
                                        (BY SMT. SONALI SHRIVASTAVA-ADVOCATE)

                                        AND

                                  1.    THE STATE OF MADHYA PRADESH THROUGH
                                        ITS SECRETARY PANCHAYAT AND RURAL
                                        DEVELOPMENT DEPARTMENT MANTRALAYA,
                                        VALLAB BHAWAN BHOPAL (M.P.) (MADHYA
                                        PRADESH)

                                  2.    THE          DISTRICT           ELECTION
                                        OFFICER /COLLECTOR , M A N D L A DISTRICT
                                        MANDLA M.P (MADHYA PRADESH)

                                  3.    THE RETURNING OFFICER/SUB DIVISIONAL
                                        OFFICER, MANDLA DISTRICT MANDLA M.P
                                        (MADHYA PRADESH)

                                  4.    PRESIDING    OFFICER, JANPAD PANCHAYAT
                                        JANPAD PANCHAYAT MOHANIYA BOOTH NO.
                                        31,  DISTRICT MANDLA M.P (MADHYA
                                        PRADESH)

                                  5.    SHAILESH MISHRA S/O SHRI ASHWANI
                                        MISHRA , AGED ABOUT 45 YEARS, R/O VILLAGE
                                        GWARI, DISTRICT MANDLA M.P (MADHYA
                                        PRADESH)

Signature Not Verified
  SAN
                                                                                         .....RESPONDENTS
                                        (BY SHRI SIDDHARTH SETH- ADVOCATE)
Digitally signed by VINAY KUMAR

                                       Th is petition coming on for admission and I.R. this day, t h e court
BURMAN
Date: 2022.07.20 18:30:06 IST
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                                  passed the following:
                                                                        ORDER

In this petition filed under Article 226 of the Constitution of India, the petitioner is seeking following reliefs:-

"A. This Hon'ble Court be pleased to issue writ in nature of "Mandamus directing to the respondents authority to consider grievance/dispute raised by the petitioner before the authority, and conduct process of recounting before issuing certificate i.e. 14.07.2022 of concerning Jila Panchayat Mohaniya distt Mandla,

particular ward No., 31 of the village.

B. This Hon'ble Court further direct to the respondents authorities till the decision in the representation submitted by the petitioner, not to is certificate of elected candidate of Member of Jila Panchayat to the respondent No.5 C. Any other order/relief which this Hon'ble Court deem fit and proper in the facts and circumstances of the case, in favour of the petitioner be also granted.

D.Costs of the Petition."

Learned counsel for the petitioner submits that the petitioner contested the election for the post of Member of Jila Panchayat Mohaniya, district Mandla. After completion of voting and counting, the petitioner was declared to Signature Not Verified SAN have got 533 votes whereas respondent No. 5 was in second position. The Digitally signed by VINAY KUMAR BURMAN Date: 2022.07.20 18:30:06 IST petitioner submitted representation dated 29.06.2022 (Annexure P/3 and P/5)

but no action whatsoever has been taken till date on the said representation. In these circumstances, direction may be issued to respondents authority to decide the same in accordance with law at the earliest.

P er contra, Shri Seth opposed the aforesaid contention and submitted that various disputed questions of fact are involved in the present case, 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 have been declared on 14.7.2022. Even the Returning Officer has become functus officio. 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 -

Signature Not Verified
  SAN                                              (a)       xxx xxx xxx
Digitally signed by VINAY KUMAR
BURMAN
                                                   (b)       no election to any Panchayat shall be called in
Date: 2022.07.20 18:30:06 IST

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.

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 vinay*

Signature Not Verified SAN

Digitally signed by VINAY KUMAR BURMAN Date: 2022.07.20 18:30:06 IST