DHANIRAM Vs. S.D.O. PICHHORE AND OTHERS

JUDGEMENT

(1.) This petition has been filed after dismissal of the election petition filed by the petitioner.

(2.) The contention of the learned counsel for the petitioner is that he has filed an election petition under Sec. 122 of the M.P. Panchayat Raj Adhiniyam and prayed for relief of recount. The ballot-papers were re-counted by the sub-divisional officer. The contention of the petitioner is that this re-counting was not objected to by the respondents. However, the main question is that even with the consent of the parties whether recounting can be ordered by the prescribed authority without recording evidence In AIR 1989 SC 640 (P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen) it has been held that even consent will not permit the authority to go for recounting. The rules as framed provided that after framing an issue and recording the entire evidence on record, if the authority finds that there is sufficient evidence and law permits re-counting then only re-counting can be permitted. Recounting cannot be ordered on mere asking. It is alleged that recounting was delegated by the Sub-Divisional-Officer to Tahsildar. Recounting was not done personally. This is not the intention of the legislature. Under Sec. 122, powers to decide election petition are conferred upon Sub-Divisional Officer. He is not authorised to delegate his power as he performs a judicial function. Order to Tahsildar to recount is itself contrary to law. Rules have been framed under Sec. 122 of the M.P. Panchayat Raj Adhiniyam. They are known as M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995. The following Rules are reproduced below:-

(3.) From the aforesaid rules, it is clear that any order of recounting can be passed after conclusion of the trial and the recounting can only be ordered by the Sub-Divisional Officer who is a prescribed authority to decide the dispute. The sub-divisional officer has not acted properly, inasmuch as it acted illegally in delegating the powers of recounting to the Tahsildar. The authority is described as Sub-Divisional Officer as the authority to decide the election petitions, therefore, any act done by the Tahsildar of recounting cannot be said to be proper and on the basis of recounting by the Tahsildar, the Sub-Divisional Officer gravely erred in dismissing the election petition. The order dismissing the election petition is hereby set-aside with a direction to Sub Divisional Officer to decide the petition according to law and shall also decide the preliminary objections raised by the respondents before him. He cannot shirk from his responsibility and delegate his powers to subordinate authority.