MOHAN SINGH Vs. SATENDRA SINGH

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution challenge is made to Annexure P -1 dated 30 -11 -2000 passed by respondent No. 9 Election Tribunal in a petition filed under section 122 of the Panchayat Raj Avam Gram Swaraj Adhiniyam 1993. Even though various grounds are urged in the petition and were advanced during the time of hearing by the learned counsel's appearing for the parties but in view of the law with regard to recounting of votes settled by judgment of the Supreme Court and this court, I propose to deal with the said question for the present before adverting to other grounds.

(2.) THE petitioner was elected as a Sarpanch in the election of Gram Panchayat Pali (Dirman) held on 28 -1 -2000. Counting of votes took place on 30 -1 -2000 at Gohad and after counting, the petitioner was declared elected as Sarpanch having obtained 444 votes whereas respondent No. 1 obtained 438 votes. Being aggrieved by the aforesaid, the respondent filed a petition challenging the election under section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam 1993 and it was contended by him that initially he had obtained 448 votes and the petitioner had obtained 443 votes but 10 votes were declared as invalid because of which the petitioner was declared as elected. It is the case of the respondents that before the Election Tribunal he moved an application for recounting but the same was not considered by the respondent No. 9.

(3.) FROM the aforesaid, it is clear that for claiming recounting of votes a written application has to be made to the Returning Officer immediately after the results are declared. Making a written application is mandatory for claiming recounting of votes. In the present case except for the averments made by the petitioner in the election petition, there is nothing on record to indicate that such an application was made. Witnesses who had appeared before the election Tribunal on behalf of the petitioner have categorically stated that respondent No. 1 never raised any objection and did not make any application for recounting. In this regard the evidence of Devram Kushwaha, Brijendra Singh are relevant. These witnesses have categorically stated that no application was filed by the respondent for recounting of votes. In his own statement which is on record at page 35 of the paper book, the respondent 1 has simply stated that he had made a petition for recounting but in cross examination he says that no action was taken on the said application. He does not have copy of the said application but he made a complaint by fax after two days to certain authorities. However, respondent No. 1 has not filed a copy of the said application along with the election petition. In fact no such application is on record in the proceeding.