HARIPRASAD Vs. BAPU LAL

JUDGEMENT

(1.) THE petitioner before this court has filed the present petition being aggrieved by an order dated 10.5.2011 passed by the prescribed authority/Sub-Divisional Officer, Kannod in an election petition preferred by respondent No.1 Bapu Lal in respect of an election for the post of Sarpunch, Gram Panchayat Barbai, Tehsil Khategaon.

(2.) THE contention of the petitioner is that an election took place on 24.1.2010 in respect of the post of Sarpunch, Gram Panchayat Barbai, Tehsil Khategaon and the result was declared on 3.2.10. The petitioner has further stated that he has received 337 votes and the respondent No.1 received 329 votes. The petitioner has further stated that an application for recount was submitted on 27.1.10, however it was not allowed and the respondent No.1 thereafter preferred an election petition under the provisions of section 122 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 read with Rules of 1999. The petitioner has further stated that a reply was filed to the election petition and the election tribunal without framing the issues and without recording the evidence, allowed the election petition on 23.3.10 and directed recounting of votes. The petitioner has further stated that against the aforesaid order dated 23.3.10 a writ petition was preferred before this court and the same was registered as W.P. No.3149/10. This court vide order dated 4.5.10 has remanded the matter back to the election tribunal to frame issues and to pass an order after recording the evidence and after appreciating the same. The contention of the petitioner is that an application was also preferred under Order 40 Rule 1 of Code of Civil Procedure and the objections were raised in respect of election petition. However, the Presiding Officer without considering the evidence adduced by the parties and only on the basis of application filed by the respondent No.1/election petitioner, has directed recounting of votes. Various grounds have been raised in the election petition and it has been stated that there was no evidence on record to establish non-availability of proper light nor documents were produced before the Presiding Officer and in absence of cogent material, recounting has been ordered in a mechanical manner. The petitioner has also raised a ground stating therein that there was no cogent and trustworthy evidence for directing recounting and recounting has been ordered only because it was asked by the respondent No.1 election petitioner. It has also been stated that the election petition was not signed and certified by the election petitioner and it should have been dismissed on this count alone. It has also been stated that the election petition has been filed on the basis of vague and frivolous grounds and without considering the material on record, the Tribunal has misread the judgment of various courts and by picking some observations for establishing its hypothetical belief, the order of recount has been passed. It has also been argued that there was a proper light, there was candle light or light of patromax was available at the time of counting of votes, therefore, counting was not affected at all. Hence, in absence of any material on record the election tribunal should not have been ordered recounting as it has been done in the peculiar facts and circumstances of the case. Learned Sr. counsel has placed reliance upon a judgment delivered by this court in the case of Kamlesh Gautam Vs. Sub-Divisional Officer and Anr., 2008 (4) MPLJ 179 and his contention is that this court in the aforesaid case has held that for recounting of votes, it is obligatory on the part of the election tribunal to give specific findings about its satisfaction for directing recount. Learned Sr. Counsel has also placed reliance upon a judgment of Apex Court delivered in the case of Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and others, (2010) 1 SCC 466 and his contention is that recounting should not be ordered merely it is asked for and a narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in counting of votes. Learned Sr. Counsel has also placed reliance upon a judgment delivered by the Apex Court in the case of Tanaji Ramchandra Nimhan Vs. Swati Vinayak Nimhan and others, (2006) 2 SCC 300 and has drawn the attention of this court towards paragraph 8, wherein haste was shown in the matter of counting and in those circumstances the Apex Court has held that merely because haste was shown in counting the votes the order of recount of votes was improper. Learned Sr. Counsel has lastly placed reliance upon a judgment delivered by the Apex Court in the case of Satyanarain Dudhani Vs. Uday Kumar Singh and others, 1993 Supp (2) SCC 82 and again his contention in light of the aforesaid judgment is that the recount should not be ordered in absence of pleading of material facts supported by contemporaneous evidence. He has prayed for quashing of the order passed by the election tribunal on 10.5.2011.

(3.) HEARD the learned counsel for the parties at length and perused the record.