BIRJHA BAI Vs. STATE OF MP

JUDGEMENT

(1.) IN this intra-court appeal preferred under Section 2 (1) of the M. P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the legal propriety of the order dated 12-9-2006 passed by the learned single Judge in W. P. No. 15329/2005 is called in question.

(2.) THE facts which are imperative to be enumerated are that the appellant-petitioner (hereinafter referred to as 'the petitioner') filed an Election Petition no. 1-A/89/2004-05 before the S. D. O. Baihar, the Prescribed Authority, under the provisions of Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram swaraj Adhiniyam, 1993 (for short 'the Act' ). It was urged before the Election tribunal that the election for the post of Sarpanch for Gram Panchayat, Kukrra was held on 19-1-2005. In the said election there was a triangular contest wherein the petitioner-appellant obtained 320 votes and the respondents No. 7 and 8 secured 321 and 319 respectively. During the counting of votes for Booth Nos. 19 and 20 total 109 votes have been declared invalid. As there was irregularities and illegalities in the process of counting of votes the same were pointed out by the petitioner. It was putforth that one Santosh cast the vote on behalf of Shivlal who was not in village. On an objection being filed recounting was done and two votes were declared invalid in respect of Booth No. 19. In booth No. 20 some valid votes were declared to be invalid and in the ultimate eventuate the respondent No. 1 was declared elected having secured one vote more than the appellant. Before the Election Tribunal the appellant sought recount of votes. An application was filed in that regard. The respondent No. 3, the Prescribed authority, by order dated 14-11-2005 dismissed the said petition. Being dissatisfied by the aforesaid order the petitioner knocked at the doors of this court under Article 226 of the Constitution of India.

(3.) THE learned Single Judge noted the contentions of the learned counsel for the petitioner. The contentions raised before him were two fold. First, in the initial counting the petitioner had received one vote more than the respondent no. 7 but after recounting the valid vote polled in favour of the petitioner was rejected by the Counting Officer and thereafter the respondent was declared elected, though there was no justification for rejection of the said valid vote; and second he had made a prayer for recount of votes in respect of the polling booth no. 20 but the said prayer was not considered by the Returning Officer and hence, it was obligatory on the part of the Election Tribunal to direct for recount of votes in respect of booth No. 20.