MUBARAK MASTER Vs. HANSRAJ TANWAR

JUDGEMENT

(1.) THIS petition is directed against the order (Annexure P-l), dated 10-5-2001 by First Additional District Judge, Shahdol in Case No. 3/2000 (Election Petition) (Hansraj Tanwar v. Mubarak Master and Ors.) by which the learned Second Additional District Judge has directed to hold recounting of ballots for the election of President, Dhanpuri Nagar Palika Parishad, held on 2242-99.

(2.) SHORT facts of the case are that the petitioner and respondent Nos. 1 to 7 contested the election of President of Nagar Palik Parishad, Dhanpuri in which petitioner was declared as a returned candidate. The polling was held on 22-12-99 and counting on 27-12-1999. Respondent No. 1 Hansraj Tanwar filed an application immediately after counting, praying for recounting on various grounds. The application was rejected by the Returning Officer vide order (Annexure P-2), dated 27-12-1999 on the ground that during counting no such objections were raised nor it was specified on which counting table the counting was not done properly or the counting supervisor and counting Assistant have favoured the petitioner or interpolation in the tabulation sheet was made. Thereafter petitioner was declared as returned candidate which has been challenged by respondent No. 1 by filing petition under Section 20 of Madhya Pradesh Municipalities Act, 1961 before the District Judge, Shahdol as Election Petition No. 3/2000. It was subsequently transferred to Second Additional District Judge, Shahdol for the trial. The election petition was contested by the petitioner. Respondent Nos. 2 to 7 remained absent/in the trial, respondent No. 1 got himself and witness, Govind Prasad Tiwari examined as P. W. 2 and the case was fixed for 2-5-2001. On 2-5-2001, respondent No. 1 moved an application (Annexure P-4) under Section 151 of the Code of Civil Procedure for recounting. The Court vide order dated 10-5-2001 (Annexure P-1) allowed the application for recounting. This order was challenged by the petitioner by filing revision under Section 26 of the M. P. Municipalities Act, 1961 before the High Court as Civil Revision No. 872/2001. This revision was contested by the parties and vide order dated 4-8-2003 (Annexure P-5) [2003 (4) M. P. H. T. 238], the learned Judge held that the impugned order is an interlocutory order, against which no revision lies under Section 26 of the Act, and the revision was dismissed as not maintainable. Thereafter, petitioner filed this petition on following grounds :-

(3.) RESPONDENT No. 1 contested the matter on merits and also raised a preliminary objection that this petition is not maintainable. As the petitioner contested the revision before the High Court on merits and the order passed by the Court below has merged in the order passed by the High Court, such order can not be assailed in the writ jurisdiction. There are justified ground for recounting of the votes as stated in Para 5 of the return. In nutshell contention of the respondent is that there was manipulation in the counting, and in the tabulation sheets, which shows that in the counting and tabulation serious irregularities were committed by the Officers and the Court below considering all these facts has rightly directly recounting in the matter. There is difference of only 59 votes between petitioner and respondent No. 1. The petitioner secured 6001 and respondent No. 1 secured 5952 votes. The incidences which have been quoted in Para 5 of the return are as under:-