CHANDRA BAI Vs. STATE OF M.P.

JUDGEMENT

(1.) INVOKING the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issue of a writ of certiorari for quashment of order dated 11.4.2001 passed by the Sub -Divisional Officer -cum -Specified Officer in Election Petition No. 24 -N89/99 -2000 and further to command the respondents to permit the petitioner to discharge his duties as Sarpanch.

(2.) THE facts as have been uncurtained are that the petitioner was the elected Sarpanch of Gram Panchayat, Hatnora in the district of Betu\. The election in question for the post of Sarpanch of the aforesaid Gram Panchayat was held on 28.1.2000 in which the respondents No.4 to 9 filed their nomination papers. In the election, the petitioner secured 328 votes and respondent No. 4 obtained 246 votes and accordingly the petitioner was declared elected. The respondent No.3 being aggrieved by his mother's defeat, instituted a proceeding under section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') alleging that the petitioner has been elected by adopting corrupt practices. After issuance of notice by the Election Tribunal, the petitioner and other respondents entered their appearance and the petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure taking preliminary objection regarding maintainability of the petition filed by the respondent No.3. The Election Tribunal rejected the preliminary objection raised by the petitioner. Thereafter, the petitioner filed his written statement refuting the allegations made in the petition. While the matter was pending before the Specified Officer the respondent No.3 prayed for recounting of the votes and expressed his willingness not to adduce any evidence. The respondent No. 2 directed him to file an application in this regard. On 8.3.2001, the respondent No.3 gave his consent for recount of votes and filed an application indicating that he would be bound by the decision of recounting. Thereafter the Specified Officer summoned the entire record regarding the election and without framing any issues and without recording any evidence directed for recount of votes ignoring the objection of the petitioner. After recounting, he found that petitionerhad obtained 240 votes whereas the nearest candidate, respondent No. 4, had secured 245 votes, and accordingly, he declared the respondent No.4 to be the elected Sarpanch of the aforesaid Gram Panchayat and allowed the application of respondent No.3.

(3.) A return has been filed by the respondent No.4 contending, inter alia, that the petitioner herself on 17.1.2001 had submitted that in case the election petitioner is satisfied with the recounting then she will have no right and opportunity of leading evidence on the averments made in the election petition with regard to the court practice. Keeping in view the aforesaid concession, the Specified Officer, by order dated 26.2.2001, recorded that the recounting should be done. In essence, it has been pleaded that petitioner has given consent for recount and accordingly recounting has been done and results have been published, and hence, the petitioner cannot take a somersault and challenge the same invoking the extraordinary jurisdiction of this Court.