SAVITRIBAI LODHI Vs. STATE ELECTION COMMISSIONER

JUDGEMENT

(1.) The appellant/petitioner, a candidate for the post of Sarpanch, Gram Panchayat Kutwara, District Shivpuri has felt aggrieved with the counting of votes. He has approached the Writ Court for a direction of recounting at Polling Station No.123 and 124 of Village Panchayat Kutwara, Badarwas, District Shivpuri Madhya Pradesh in presence of the petitioner and also that the certificate be issued only after recounting of both polling stations, i.e. 123 and 124 of village Panchayat Kutwara, Badarwas, District Shivpuri, Madhya Pradesh, to the candidate who win the election.

(2.) The Writ Court by a detailed order has rejected the Writ Petition. In the said order, relying upon the decisions of the Hon'ble Supreme Court in the case of R.Narayanan Vs. S.Semmalai and others reported in (1980) 2 SCC 537, Vadivelu Vs. Sundaram and others reported in (2000) 8 SCC 355 and Bhabhi Vs. Sheo Govind and Others reported in (1976) 1 SCC 687 with relevant paragraphs quoted thereunder, learned Writ Court has concluded that recounting of votes essentially involves question of facts, which obviously are in the realm of adjudication by trial. Such recourse can not be taken in exercise of writ jurisdiction under Article 226 of the Constitution of India. The direction for recounting under Rule 18 of the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 (hereinafter shall be referred to as 'Rules of 1999') can not be given in such circumstances. Consequently, Writ Petition has been dismissed.

(3.) Shri Nitin Goyal, learned counsel appearing for the appellant/petitioner while taking exception to the impugned order contends that since counting has not been done as per the provisions contained in Rule 18 of the Rules of 1999, the representation filed for the alleged irregularity in that behalf in all fairness ought to have been addressed by the Returning Officer. Failure thereof has given rise to invocation of writ jurisdiction under Article 226 of the Constitution of India.