Madhya Pradesh High Court

Tejilal Kumre vs The State Of Madhya Pradesh on 31 January, 2023

Author: Maninder S. Bhatti

                                                           1



                                IN THE HIGH COURT OF MADHYA PRADESH
                                           AT J A B A L P U R
                                                       BEFORE
                                   HON'BLE SHRI JUSTICE MANINDER S. BHATTI

                                           ON THE 31st OF JANUARY, 2023

                                           WRIT PETITION No. 20117 of 2022

                         BETWEEN:-
                         TEJ ILAL KUMRE S/O SHRI SUKLU KUMRE, AGED ABOUT 50 YEARS,
                         OCCUPATION: SARPANCH (ELECTED) VILLAGE SALEMA GRAM
                         PANCHAYAT SALEMA POST OFFICE KAHANI TAHSIL DHANOURA
                         DISTRICT SEONI (MADHYA PRADESH)
                                                                        .....PETITIONER
                         (BY SHRI SANJ AY KUMAR VERMA WITH SHRI K.K. AGNIHOTRI -
                         ADVOCATE)
                         AND
                            THE STATE OF MADHYA PRADESH THROUGH ITS PRINCIPAL
                            SECRETARY    PANCHAYAT    AND   RURAL   DEVELOPMENT
                         1.
                            DEPARTMENT MINISTRY VALLABH BHAWAN DISTRICT BHOAPL
                            (MADHYA PRADESH)
                         2. COLLECTOR SEONI DISTRICT SEONI (MADHYA PRADESH)
                            SUB DIVISIONAL OFFICER(REVENUE) PRESCRIBED AUTHORITY
                         3.
                            GHANSOUR SEONI DSITRICT SOENI (MADHYA PRADESH)
                            PRESIDING OFFICER(GRAM PANCHAYAT ELECTION) GRAM
                         4. PANCHAYAT SALEMA P 1, P2, P 3 BOOTH NO. 24 TEHSIL
                            DHANOURA DISTRICT SEONI (MADHYA PRADESH)
                            KARAM SINGH SALLAM S/O SHRI BUDDHULAL SALLAM, AGED
                            ABOUT 32 YEARS, OCCUPATION: CASTE PARDHAN R/O GRAM
                         5.
                            SALEMA POST KAHANI TEHSIL DHANOURA DISTRCT SEONI
                            (MADHYA PRADESH)
                            AMARLAL KOURETI S/O SHRI MERSINGH KOURETI GRAM
                         6. MOHGAON GRAM PANCHAYAT SALEMA TEHSIL DHANOURA
                            DISTRICT SEONI (MADHYA PRADESH)
                                                                       .....RESPONDENTS

                         (BY SHRI V.S. CHOUDHARY - PANEL LAWYER)
                         (SHRI R.N. MISHRA - ADVOCATE F OR RESPONDENT NO.5)


                                                           &



Signature Not Verified
Signed by: MANOJ NAIR
Signing time: 2/3/2023
3:02:30 PM
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                                        WRIT PETITION No. 24870 of 2022

                         BETWEEN:-
                         TEJ ILAL KUMRE S/O SHREE SHUKLU KUMRE, AGED ABOUT 50
                         YEARS, OCCUPATION: SARPANCH (ELECTED) GRAM PANCHAYAT
                         SALEMA PO KAHANI TEHSIL DHANOURA DISTRICT SEONI
                         (MADHYA PRADESH)

                                                                                .....PETITIONER
                         (BY SHRI SANJ AY KUMAR VERMA WITH SHRI K.K. AGNIHOTRI - ADVOCATE)
                         AND
                            THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
                         1. SECRETARY OF THE DEPARTMENT OF PANCHAYAT RAJ
                            MANTRALYA VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
                            THE DIRECTOR PANCHAYAT RAJ DIRECTORATE TULSI NAGAR
                         2.
                            BHOPAL (MADHYA PRADESH)
                         3. THE COLLECTOR SEONI DISTRICT SEONI (MADHYA PRADESH)
                            THE SUB DIVISIONAL OFFICER (REVENUE) / PRESCRIBED
                         4. AUTHORITY SEONI GHANSOUR DISTRICT SEONI (MADHYA
                            PRADESH)
                            THE CHIEF EXECUTIVE OFFICER J ILA PANCHAYAT SEONI
                         5.
                            DISTRICT SEONI (MADHYA PRADESH)
                            THE CHIEF EXECUTIVE OFFICER J ANPAD PANCHAYAT SEONI
                         6.
                            PANCHAYAT DHANOURA DISTRICT SEONI (MADHYA PRADESH)
                            SMT. HIRIYABAI BHALAVI UP SARPANCH GRAM PANCHAYAT
                         7. SALEMA J ANPAD PANCHAYAT DHANOURA DISTRICT SEONI
                            (MADHYA PRADESH)
                                                                           .....RESPONDENTS
                         (BY SHRI V.S. CHOUDHARY - PANEL LAWYER)
                         (SHRI R.N. MISHRA - ADVOCATE F OR RESPONDENT NO.7) )



                               This petition coming on for admission this day, the court

                         passed the following:

                                                        ORDER

This order shall also govern the disposal of W.P. No.24870/2022.

Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

2. For the sake of convenience the facts of W.P. No.20117/2022 are

being taken note of.

3. The petitioner has filed this petition assailing the order date

29.08.2022 (Annexure-P/8) passed by Sub Divisional Officer, Dhanoura

District Seoni by which, an election petition preferred by respondent

no.5 Karan Singh Sallam has been allowed and the recounting of votes

have been ordered.

4. It is contended by the counsel for the petitioner that the election

for the post of Sarpanch Gram Panchayat, Salema Tahsil Dhanoura

District Seoni was held on 01.07.2022 and in which, the petitioner herein

secured 304 votes whereas respondent no.5 secured 158 votes.

5. Assailing the election of the present petitioner as Sarpanch Gram

Panchayat Salema, respondent no.5 in an election petition under Section

122 of the M.P. Panchayatraj Evam Gram Swaraj Adhiniyam, 1993

(herein after referred as Adhiniyam, 1993 for the sake of gravity), it was

asserted by the respondent no.5 that on account of clerical error, the

votes which were followed in favour of the election petitioner were

shown in favour of the present petitioner and, therefore, recounting of

votes was imperative. The prescribed Authority then proceeded to decide

the election petition and during the course of trial, the Presiding Officer

Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

Nos.1, 2 and 3 were examined, and their affidavits filed under Order 18

Rule 4 of CPC were considered. The present petitioner moved an

application on 26.08.2022 before the Presiding Officer and a request was

made by the present petitioner to cross-examine the Presiding Officers

Nos.1, 2 and 3 but, the said application was declined vide order dated

29.08.2022 and on 29.08.2022 itself the final order was passed by the

prescribed Authority directing recounting of votes.

6. Learned counsel for the petitioner contends that the order

impugned was passed by the Sub Division Officer cum prescribed

Authority is unsustainable and nullity inasmuch as, the same could not

have been passed without extending opportunity to the present petitioner

to cross-examine the Presiding Officers Nos.1, 2 and 3.

7. It is contended by the counsel for the petitioner that a perusal of

the order impugned reflects that the affidavits submitted by the Presiding

Officers Nos.1, 2 and 3 under Order 18 Rule 4 of CPC have been taken

cognizance of by the prescribed Authority and without appreciating the

same, an order of recounting of votes has been passed and therefore,

submits that the order is unsustainable inasmuch as, the petitioner herein

was not extended any opportunity of hearing to cross-examine the

Presiding Officers Nos.1, 2 and 3. It is further contended by the

Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

counsel for the petitioner that the order impugned has been passed by the

Sub Divisional Officer cum prescribed Authority without even framing

the issue and without permitting the parties to adduce evidence, thus, the

same is unsustainable in view of the law laid down by this Court in the

case of Uday Singh vs. Himmat Singh and Ors. [1991 (1) JLJ 200] and

the law laid down by the Apex Court in the case of Makhan Lal Bangal

vs Manas Bhunia And Ors [(2001) 2 SCC 652].

8. Per contra, learned counsel for the respondent no.5 submits that

the prescribed Authority upon taking into consideration, the testimony of

Presiding Officer Nos.1, 2 and 3 have came to a conclusion that on

account of clerical error, the result of the election has been effected and,

therefore, recounting is necessary to bring the controversy to an end and

accordingly, has ordered the same. Thus, submits that no interference is

required.

9. Heard the rival submissions and perused the record.

10. Undisputedly, vide impugned order dated 29.08.2022 (Annexure-

P/8) the election petition has been decided by the Prescribed Authority

cum Sub Divisional Officer, Dhanoura District Seoni. A perusal of order

impugned reflects that the Authorities did not make any effort to frame

the issues on the basis of rival pleadings of the parties. Even, the

Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

Authority ventured upon to decide the election petition without

extending opportunity to the parties to adduce evidence.

This Court in the case of Uday Singh (supra) has held as under:-

16. The election petitioner has to first specifically aver in the petition grounds and then prove it by leading evidence to justify the prayer for recount. Recount can be directed by the Election Tribunal only on a satisfaction reached on the basis of evidence that such recount is necessary.

The Apex Court in the case of Makhan Lal Bangal (supra) has held

as under:-

19. An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as oh that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the 'two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of order XIV of the Code of Civil Procedure dealing with settlement of issues

Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The

Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided.

11. If, the order impugned is scrutinized, in view of the law laid down

by this Court in the case of Uday Singh (supra) and the law laid down

by the Apex Court in the case of Makhan Lal Bangal (supra), the same

would reflect that the order does not sustain judicial scrutiny. The

Authority neither framed the issues nor permitted the petitioner to cross-

examine the Presiding Officer Nos.1, 2 and 3.

12. Accordingly, the order impugned dated 29.08.2022 (Annexure-

P/8) which has been passed without extending opportunity to adduce

evidence to the petitioner deserves to be and accordingly, is set aside.

The matter is remitted back to the Sub Divisional Officer, Dhanoura

District Seoni to decide the election petition preferred by the respondent

no.5 afresh while extending opportunity to adduce evidence to the parties