AARTI SINGH Vs. USHA KOL

JUDGEMENT

(1.) THIS is a revision under Section 26 (2) of the M. P. Municipalities Act, 1961 (hereinafter to be referred to as 'the Act') by the returned candidate Smt. Aarti Singh against the order by which her election as Councillor of Nagar panchayat, Kymore has been held to be void and election petitioner Smt. Usha kol has been declared to be duly elected.

(2.) IT is not in dispute that election for the Councillor of Ward No. 5 of Nagar Panchayat, Kymore took place on 26-12-1999 and the counting of votes was done on 28-12-1999. The result was declared on 31-12-1999. At the time of counting, thirteen ballot papers were rejected. After the completion of the counting, the Returning Officer declared that Smt. Aarti Singh had polled 114 votes and Smt. Usha Kol 115 votes. Thus, there was a difference of one vote only. Smt. Aarti Singh submitted an application at 4 P. M. to the returning Officer for recounting of votes. The recounting was allowed as there was difference of one vote only. On recounting also the result was the same. Smt. Aarti Singh again submitted an application at 6 P. M. for second recount on the ground that two votes polled by Smt. Usha Kol were invalid. That application was also allowed by the Returning Officer. It was found on the second recount that one of the votes polled by Smt. Usha Kol bore a thumb impression. It was, however, not known and it could not be ascertained whose thumb mark that ballot paper was bearing. That ballot paper was rejected on the second recount. Now the two candidates had equality of votes (114 each ). A lot was drawn as per Rule 73 of the M. P. Nagarpalika Nirvachan Niyam, 1994 (hereinafter to be referred to as 'the Rules') and as the lot fell in favour of Smt. Aarti Singh she was declared elected. Smt. Usha Kol submitted the election petition on 19-1-2000 in the office of the District Judge, Jabalpur challenging the election of Smt. Aarti Singh as Councillor. The election petitioner deposited an amount of Rs. 250/- on 28-1-2000 in the Government treasury and submitted the receipt before the District Judge, Jabalpur. By order dated 2-2-2000 the District Judge, Jabalpur transferred the election petition to the Ist Additional District Judge, Katni as per Section 20 (2) of the act. It was received by the Ist Additional District Judge, Katni from the office of the District Judge, Jabalpur on 5-2-2000.

(3.) THE case of the election petitioner is that the result of the election of the returned candidate has been materially affected by improper refusal of the vote polled in favour of the election petitioner. It is stated in the election petition that the second recount of votes was contrary to law. It is also pleaded that there was no scope for drawing a lot.