GANESH RAM GAYARI Vs. BAGDIRAM

JUDGEMENT

(1.) Challenging the order dated 29.09.2011, passed by the learned Single Judge in W.P.No.14591/2010 upholding the order dated 21.12.2010 passed by the Sub Divisional Officer (Election Tribunal), Sitamau, district Mandsaur declaring the election of the Sarpanch of Gram Panchayat, Sakhtali as invalid after recount, and to declare the respondent no.1, as Sarpanch this appeal has been preferred under Section 2(1) of the M.P.Ucch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005.

(2.) The facts giving rise to the filing of the present writ appeal are that appellant and respondent no.1 alongwith 11 other candidates have contested the election of Sarpanch, Gram Panchayat Sakhtali, Sitamau, district Mandsaur, wherein the appellant was declared elected by issuance of notification on 3.2.2010, as per Rule 83 of M.P.Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as , Nirvachan Niyam). It is stated that total 1364 votes were casted, out of which set of 1241 votes were valid and 123 votes were rejected as not valid. The appellant received 244 votes and respondent no.1 received 242 votes. After becoming unsuccessful, respondent no.1 has filed an election petition under Section 122 of the M.P.Panchayat Raj and Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Adhiniyam, 1993) which was decided on 5.4.2010 directing recount of the votes. The said order was challenged by filing a W.P.No.3788/2010 which was allowed on 16.04.2010 and while remitting the matter back to the Election Tribunal, it was directed that after framing of the issues and recording the evidence the election petition be decided on merit. Thereafter, the Election Tribunal vide order dated 21.12.2010 decided the same and directed for recount of votes and subsequently on 22.10.2010 recounting took place, wherein respondent no.1 has been declared elected as Sarpanch of Gram Panchyat, Sakhtali, as he has received two more votes than the appellant. The said order was challenged before the writ Court, interalia contending that the material facts and particulars have not been pleaded before the Election Tribunal. However, the findings to direct for recount is not in conformity to the principle of law laid down by various judgments. Learned Single Judge while passing the order impugned, has referred the earlier order of remand passed by this Court on 16.04.2010 and thereafter quoting some paras of the order dated 21.12.2010 passed by the Election Tribunal, recorded the finding that in the facts of the case, recounting as directed by Election Tribunal, is just and proper. However, interference was declined. Being aggrieved by the said order, this appeal has been preferred.

(3.) Shri A.K.Sethi, learned senior counsel appearing on behalf of the appellant referring to Rule 21 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter be referred as Corrupt Practices Rules) contended that the grounds to assail the election has been specified in Rule 21 (d) (i) to (iv). In the pleadings of the election petition, the ground of improper acceptance of nomination and corrupt practices were also pleaded, but both of the grounds were not found prove by Election Tribunal in absence of the material and cogent evidence to establish the same. In the present case, the Court has directed for recounting, to which material facts and the particulars have neither been pleaded nor produced therefore, the direction issued for recount by the Election Tribunal, upheld by the learned Single Judge is not in conformity to law. Learned senior counsel has placed reliance on the judgments of P.K.K.Shamsudeen Vs. A.M.Mappillai Mohindeen, 1989 AIR(SC) 640, Satyanarain Dudhani Vs. Uday Kumar Singh, 1993 AIR(SC) 367 and the division Bench judgments of this Court in the case of Birjha Bai Vs. State of M.P., 2008 2 MPLJ 591, Vidhyawati Lilhare Vs. SDO-cum-Prescribed Officer, Lanji Balaghat, 2010 2 JabLJ 29 and a Single Bench judgment in the case of Kamlesh Bai Vs. Upper Commissioner Bhopal and Hoshangabad Division, 2008 2 MPHT 466 Neki Bai Vs. Mithlesh, 2011 1 MPLJ 659. In view of the aforesaid it is submitted that the direction issued for recount by the Election Tribunal as well as by learned Single Judge was without considering the pleadings and without having any material particulars to record prima facie satisfaction. It is further submitted that the grounds for recounting has not been pleaded and proved therefore also the order impugned passed by the learned Single Judge may be ordered to be set aside.