Pradeep Kumar Rai vs The Returning Officer
2023 Latest Caselaw 4057 MP

                                                             1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                               ON THE 15 th OF MARCH, 2023
                                              WRIT PETITION No. 5465 of 2023

                          BETWEEN:-
                          PRADEEP KUMAR RAI S/O SHRI MALKHAN PRASAD
                          RAI, AGED ABOUT 35 YEARS, OCCUPATION: SARPANCH
                          GRAM PANCHAYAT POUDI MANGARH TAHSIL JABERA
                          DISTRICT DAMOH (MADHYA PRADESH)

                                                                                          .....PETITIONER
                          (BY SHRI PRAKASH UPADHYAY, ADVOCATE)

                          AND
                          1.    THE   RETURNING   OFFICER  PANCHAYAT
                                ELECTION 2022 TEHSIL JABERA DISTRICT
                                DAMOH (MADHYA PRADESH)

                          2.    MANOJ BAI S/O NARMADA RAI OCCUPATION:
                                CANDIDATE FOR SARPANCH, GRAM PANCHAYAT
                                POUDI MANGARH TAHSIL JABERA, DISTRICT
                                DAMOH (MADHYA PRADESH)

                          3.    NIKHAT JAHAN W/O ILYAS KHAN OCCUPATION:
                                CANDIDATE FOR SARPANCH, GRAM PANCHAYAT
                                PIPARIYA MEHRA JANPAD PANCHAYAT AND
                                TAHSIL LAKHNADON, DISTRICT SEONI (MADHYA
                                PRADESH)

                                                                                       .....RESPONDENTS
                          (BY SHRI ROHIT SOHGAURA, ADVOCATE FOR CAVEATOR)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

Petitioner has filed this writ petition under Article 226 of Constitution of India challenging order dated 22.02.2023 contained in Annexure-P/11.

Signature Not Verified Signed by: NEETI TIWARI Signing time: 3/15/2023 4:53:59 PM

2. By impugned order, election petition filed under Section 122 of Madhya Pradesh Panchayat Raj Awam Gram Swaraj Adhiniyam, 1993 was allowed and direction was issued for recounting of votes on 16.03.2023 from 12 pm. Recounting is to be done in respect of polling Center No.211.

3. Counsel appearing for petitioner submitted that recounting was ordered only on ground that there is difference of two votes between winning candidate and runner up candidate. It is submitted that no finding has been given regarding any irregularity, misconduct, corrupt practices in it's order. Counsel for petitioner relied on judgment reported in 2007 3 JLJ 301 Sampat Devi (Smt.) Vs. Sub Divisional Officer-cum-Prescribed Authority Niwadi

and others. In said case, it has been held that election tribunal is required to apply it's own mind to the pleadings and evidence brought on record to order recounting of votes. Thin margin of votes between two candidates cannot be sole ground for ordering recounting of votes.

4. Counsel appearing for respondents supported the order passed by prescribed authority. It is submitted that authority has considered the pleadings of the parties and has passed order for recounting of votes. It has been mentioned in order that pleadings and evidence of party was considered. Respondents had pleaded that counting was done at night. Counting also took place in absence of sufficient light. In these circumstances, no error can be found in order passed for recounting of votes.

5. Heard learned counsel for parties and perused order dated 22.02.2023 passed by Election Tribunal-cum-Sub Divisional Officer Tendukheda District- Damoh.

6. On perusal of the order, it is found that prescribed authority has

Signature Not Verified recorded pleadings of both the parties and evidence available on record. Signed by: NEETI TIWARI Signing time: 3/15/2023 4:53:59 PM

However, no finding has been recorded by Election Tribunal analyzing evidence whether any ground exists for recounting of votes. Order has been passed only on ground that there is hairline difference of votes between returned and runner up candidate. Recounting of votes cannot be ordered only on the basis of fact that there is thin margin of difference of votes between winning and loosing candidates. Election Tribunal-cum-prescribed authority has to assign reasons on basis of evidence for ordering recounting of votes. No analysis of evidence and recording of finding was done by returning officer. Allegation was made that there was booth capturing, forged voting, counting was done at night and in absence of sufficient light etc. No finding has been given on pleadings and on said grounds raised by parties.

7. In view of same, impugned order dated 22.02.2023 passed by Sub Divisional Officer District-Damoh is set-aside. Matter is remanded back to Sub Divisional Officer for passing final order after analyzing pleadings and evidence adduced by parties and record it's finding and pass fresh orders on merits of case within period of 45 days from receipt of certified copy of the order passed today.

8. No rehearing of case is required, as parties have already been heard and exercise is to be carried out by Sub Divisional Officer.

9. With aforesaid direction, petition stands disposed off.

Certified copy as per rules.

(VISHAL DHAGAT) JUDGE nd

Signature Not Verified Signed by: NEETI TIWARI Signing time: 3/15/2023 4:53:59 PM