GEETA DEVI YADAV Vs. ARCHANA

JUDGEMENT

(1.) CHALLENGING the order, Annexure P/1 dated 11th July, 2006 passed by the Commissioner, Gwalior Division, Gwalior dismissing the Election petition No. 10/2004-05 filed by the petitioner under section 122 of the M. P. Panchayat Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the adhiniyam, 1993), petitioner has filed this petition.

(2.) FACTS in a nutshell necessary for disposal of this petition are that the petitioner claims to be a resident of Basai, district Datia. She is a elected member of the Panchayat from Ward No. 4. Similarly, respondent No. 1 is elected as member from Ward No. 6. The post of President, District Panchayat, Datia is reserved for women belonging to general category. Election to the post of president was held on 23rd February, 2005 and for the said purpose, a meeting was called for in accordance with statutory rules presided over by the Collector, district Datia and in all ten elected members of the panchayat were present in the meeting. Election for electing the President, District Panchayat was held in accordance with provisions of the M. P. (Upsarpanch, President and Vice president) Nirvachan Niyam, 1995 (hereinafter referred to as Election Rules, 1995 ). In the said election, the petitioner and respondent No. 1 were the only contesting candidates. The respondent No. 1 having been declared as elected, aggrieved thereof, election petition as contemplated under section 122 of the adhiniyam, 1993 was filed by the petitioner before the Commissioner. In the said election petition, the main ground urged by the petitioner was that ten members participated in the voting. As per the statutory rules and in particular, Rule 16 of the Election Rules, 1995, the manner of recording votes, counting of votes and declaration of result is contemplated. Voting is to be done by the members concerned by placing a cross mark (X) on the ballot paper against the name of the person for whom he or she wishes to vote, this is provided in sub-rule (4) of the Rule 16. According to the petitioner out of ten votes cast in the said election, five votes are found to have been casted in favour of the petitioner wherein cross-marks (X) are indicated. Similarly, in the remaining five votes cross-mark (X)against the name of respondent No. 1 were indicated only in four ballot papers and in one a tick (V) mark was indicated. Accordingly, petitioner had received five votes with proper cross-marks against her name and the respondent No. 1 had received four votes with proper cross-mark and one vote was not marked with cross mark but it was voted with tick mark (V), that being so, there is violation of sub-rule (4) of Rule 16 of the Election Rules, 1995. According to the petitioner, even though one vote was invalid, the same was counted as valid in favour of respondent No. 1, and both the respondent No. 1 and the petitioner were declared to have received five votes each, therefore, draw of lot was done and thereafter respondent No. 1 was declared as elected. It was submitted that as per requirement of law, casting of vote has to be done by putting cross marks against the name of the person who has to be elected and by departing from the same treating a vote casted with a different mark to be valid, election of respondent No. 1 is said to be invalid. Inter alia contending that a invalid vote has been taken into consideration for declaring the respondent No. 1 to have received five votes and thereby illegality has been committed, petitioner had filed the election petition. It was also stated by the petitioner that a invalid vote, was made by one Chakku Lal in favour of the respondent No. 1. Shri Chakku Lal was brought over by the respondent No. 1 and there was previous arrangement between Shri Chakku Lal and the respondent No. 1, and as per this arrangement tick (V)mark was put in the ballot paper to identify this voter. Inter alia contending that the vote by Shri Chakku Lal was a result of pre-arrangement made between the respondent No. 1 and the said voter, election was challenged by the petitioner in the election petition filed under section 122 of the adhiniyam, 1993. This contention is rejected by the learned Commissioner and the election petition is dismissed after holding that the vote with tick mark (V) is valid and rightly counted in favour of the respondent No. 1.

(3.) IN the election petition, respondent No. 1 has raised a preliminary objection with regard to maintainability of the election petition on the ground that the election petition is not personally presented by the election petitioner, Smt. Geeta Devi Yadav, and therefore, as the provisions of Rule 3 (1) of the M. P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for membership) Rules, 1995 is violated, election petition should be dismissed. This objection was upheld by the learned Commissioner and the election petition is dismissed on this ground also.