MUMBI BAI Vs. STATE OF M P

JUDGEMENT

(1.) This petition is filed under Article 226 of the Constitution of India calling in question the orders dated 07.02.2011 and 14.02.2011 passed by the Sub Divisional Officer, Revenue, Damoh, the prescribed authority of Election Tribunal, by which in an election petition filed by the respondent No.2, recounting of the votes was directed and after holding the recounting, the respondent No.2 was declared to be elected by one vote. It is contended that the election was rightly held. The petitioner herein was declared elected after the counting of the votes. Calling in question the said election, the respondent No.2 filed an election petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (herein after referred to as 'Act'). The Election Tribunal examined the case, recorded the evidence and thereafter holding that the counting of the votes was not rightly done, directed recounting of the votes. After conducting the recounting of the votes, recording the proceedings, the result of the counting was declared declaring respondent No.2 as elected by margin of one vote. It is contended that such a recounting was not done in appropriate manner and, therefore, there was illegality committed by the Election Tribunal in declaring the respondent No.2, election petitioner, as successful in the election. Thus, it is claimed that the entire proceedings are vitiated because of noncompliance of mandatory provisions. It is contended that as per the settled law, recounting was not to be ordered in mechanical manner, which has been done and as such the order impugned are bad in law and are liable to be set aside.

(2.) Per contra, the respondent No.2, election petitioner, has contended that there was sufficient material to hold that the counting of the votes was not done rightly and, therefore, after recording the evidence, materially examining the facts with respect to the procedure followed in counting of the votes, on the basis of available evidence on record, the Election Tribunal reached to the conclusion that counting of votes was not rightly done and, therefore, order of recounting of votes was passed. After holding the recounting since it has been found that there was error in conducting the counting at the time of closer of voting, in fact by one vote the election petitioner, respondent No.2, was to be declared as elected, such orders have been passed and respondent No.2 has been declared as elected. Thus, it is contended that there is nothing wrong committed by the respondent-authority in ordering recounting or conducting the recounting and declaring respondent No.2 as elected Sarpanch.

(3.) The respondent State has also filed the return contending that the petitioner, who was a respondent in the election petition, was given full opportunity of hearing. Proper opportunity to produce evidence was granted. On the basis of the available evidence on record, the Presiding Authority of the Election Tribunal has rightly reached to the conclusion that there was irregularities committed in counting of the votes and rightly recounting was ordered. It is contended that on recounting it has been found that petitioner herein has secured 361 votes whereas respondent No.2 has secured 362 votes out of the total votes polled and, therefore, she was declared as elected Sarpanch. It is, thus, contended that the petition being devoid of any merit, is liable to be dismissed. The official respondents have also produced the entire record of the election petition and the recounting of the votes before this Court for perusal.