MAMTA UPADHYAY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) In this petition filed under Article 226 of the Constitution of India, the petitioner is seeking a direction to the respondent No.3 for recounting of votes of Polling Booth No.51, 52 and 53 in respect of election held on 8/7/2022 for the post of Sarpanch of Gram Panchayat Patoha, Tehsil Churhat District Sidhi (M.P.).

(2.) Learned counsel for the petitioner submitted that the petitioner has filed an application for recounting the votes before the respondent No.3 on the same day i.e. on 8/7/2022 (Annexure P/3) in accordance with Rule 77(2) r/w Rule 80(1) of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995, (hereinafter referred to as 'the Rules of 1995') but no action whatsoever has been taken by the respondents to decide the application. In these circumstances, direction may be issued to respondent No.3 to decide the same in accordance with aforesaid provision at the earliest. Learned counsel for the petitioner has further submitted that in identical petition bearing W.P.No.15343/2022 seeking similar relief, this Court has allowed the petition directing the respondents to recount the votes before declaration of results.

(3.) Per contra, Shri Pandey opposed the aforesaid contention and submitted that various disputed questions of fact are involved in the present case, which can only be done in the election petition. He further submitted that the present writ petition is not maintainable in view of the fact that the election has already b een notified on 27/5/2022 and thereafter results are also declared on 14/7/2022. In support of his contention he has placed reliance on the judgment o f the Apex court in the case of Laxmibai Vs. Collector, Nanded and others, reported in (2020)12 SCC 186 and S.K.Mahaboob Bee (Smt.) and others Vs. State Election Commissioner and others, reported in (2000)10 SCC 512 to contend that the writ petition is not maintainable after the elections have been notified. However, he fairly stated that the petitioner has alternative remedy of filing election petition under Sec. 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter shall be referred to as "the Adhiniyam") after the election is over.