SHIVAN LAL Vs. SUB DIVISIONAL OFFICER REVENUE MULTAI

JUDGEMENT

(1.) This petition is directed against order dated 15-9-2005 by Sub-Divisional Officer (Election Tribunal), Multai in Revenue Case No. 2A/89/2004-05, by which the election petition filed by respondent Smt. Urmila Badre has been allowed and election of petitioner Shivan Lal has been set aside.

(2.) Facts necessary for the decision of present case are as under :- That petitioner Shivan Lal, respondent-Smt. Urmila Badre and other private respondents were rival contestants for election of Gram Panchayat, Amla, District Betul. The election was held on 19-1-2005 and in the counting both the petitioner and Smt. Urmila Badre got equal votes. The respondent Smt. Urmila Badre immediately moved two applications for recounting of votes, but the aforesaid prayer was not accepted and thereafter by drawing lot petitioner Shivan Lal was declared as returned candidate. This election was challenged by Smt. Urmila Badre before the Election Tribunal on various grounds including the ground that there was no proper counting and the application of election petitioner for recounting was not considered by the Sub-Divisional Officer. The Tribunal issued notice to the respondents, initially petitioner Shivan Lal and Bhagwandeen appeared, but others have not appeared. Thereafter on 25-5-2005, petitioner and respondent No. 6 Bhagwandeen also remained absent and the matter was proceeded ex parte. The Election Tribunal on 22-6-2005 recorded evidence of election petitioner Smt. Urmila Badre. The witness Jayant Gohe and Vijay Badre were produced. The aforesaid witnesses stated before the Tribunal in respect of irregularities during the counting. Thereafter the Tribunal considered the entire evidence and vide order dated 5-8-2005 found that the election petitioner has made out a case for recounting and directed recounting. This order was not challenged by the petitioner. Thereafter on 6-9-2005 recounting was done and in the recounting, petitioner Shivan Lal got 184 votes and respondent Smt. Urmila Badre got 193 votes. As there was difference of 9 votes between the petitioner and respondent Smt. Urmila Badre, the Tribunal after recounting declared Smt. Urmila Badre as returned candidate. This order has been assailed by the petitioner on following grounds :- (i) That the Tribunal erred in directing recounting of votes without framing issues and recording evidence in the matter. (ii) That the election petitioner failed to make out a case for recounting. (iii) There was no pleading or evidence warranting recounting of votes. Reliance is placed to a Single Bench judgment of this Court in Sushila Dixit Vs. Ram Prakash and others [2001(2) MPLJ 622] and submitted that the impugned order be quashed.

(3.) Learned Counsel for respondents supported the order and submitted that respondent No. 2 immediately after the counting of votes and before declaration of result approached to the Presiding Officer by filing two applications for recounting. No order was passed on the aforesaid applications and by drawing lot petitioner Shivan Lal was declared as returned candidate, while there were serious irregularities in respect of counting. It is also submitted by Shri Chakravarthy that in the recounting result has substantially changed. The respondent Smt. Urmila Badre has been declared as returned candidate by a margin of 9 votes. This difference shows that counting was not done properly and respondent No. 2 who is in fact returned candidate was wrongly not declared as returned candidate because of drawing lots. He supports his contention by placing reliance on a judgment of this Court in Ram Rati Vs. Sub-Divisional Officer, Sidhi and others [2005(3) MPLJ 101]. To appreciate rival contention of the parties the first contention raised by the petitioner may be seen. The petitioner has stated that in the case the Tribunal without framing issue and recording evidence has decided the matter which procedure was not available to the Election Tribunal. The Tribunal before deciding the case ought to have framed issues and thereafter should have recorded evidence.