NETLAL PANCHE Vs. SANTOSH MATRE

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the validity of the order dated 20-10-2011 passed by the Election Tribunal constituted under the provisions of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Act") by which, the election petition preferred by the petitioner under Section 122 of the Act, has been dismissed. In order to appreciate the petitioner's challenge to the impugned order, few facts need mention, which are stated infra. The election for the post of Sarpanch for Gram Panchayat Nakshi, Janpad Panchayat, Kirnapur, District Balaghat was notified in the year 2010. The petitioner as well as respondent Nos. 1 to 4 contested the election. The counting of the votes was held on 18-1-2010 and respondent No. 4 was declared elected, as he had secured four more votes than the petitioner. The petitioner made an application for re-count of the votes on 18-1-2010 to the Returning Officer of polling booth No. 153. However, no decision on the application submitted by the petitioner was taken.

(2.) The petitioner filed an election petition under Section 122 of the Act. The Election Tribunal vide order dated 10-5-2010 directed re-count of the votes and declared the petitioner as elected on the post of Sarpanch. The aforesaid order was subject matter of challenge in Writ Petition No. 6749/2010 (S). A Bench of this Court vide order dated 26-4-2011 allowed the writ petition on the ground that the order passed by the Election Tribunal is procedurally ultra vires in as much as, the Election Tribunal did not record the evidence of the parties before passing an order of re-count of votes. It was further held that the election petition was decided by the Tribunal in violation of Rule 11 of the Madhya Pradesh Nirvachan Niyam, 1995. Accordingly, the order dated 10-5-2010 passed by the Election Tribunal was quashed and the matter was remitted to the Election Tribunal to decide the election petition in accordance with law within a period of three months.

(3.) The Election Tribunal thereafter by order dated 20-10-2011, inter alia held that the petitioner had filed an application for re-count of votes in respect of booth No. 153, which was accepted by the Returning Officer. Similarly, it was held that in booth Nos. 151 and 152, the polling took place peacefully and neither the candidates nor their agents raised any objection. The Election Tribunal also took into account the admission made by the petitioner in his cross-examination that he reached the polling booth No. 153 after the counting of the votes was concluded and the petitioner does not have any complaint against the Returning Officer. It was further found that the petitioner in his statement further admitted that in the application for re-count of votes, did not state that any irregularity was committed during the counting of votes. The Election Tribunal also took into account the statement of the witnesses of the petitioner namely, Suresh Kumar, Umesh Prasad and Suresh Prasad, while recording the finding that during the polling, nobody had raised any objection. Thus, the Tribunal held that no case for ordering re-count of votes is made out. Accordingly, the election petition preferred by the petitioner was dismissed. In the aforesaid factual background, the petitioner has approached this Court.