DEVKI NANDAN DUBEY Vs. PURSHOTTAM SAHU AND OTHERS

JUDGEMENT

(1.) The petitioner has filed the present petition under Article 226 of the Constitution of India challenging the order dated 05.09.2016 passed by respondent no.9 as well as the order dated 14.09.2016 passed by the respondents.

(2.) The petitioner as well as respondent no.1 with other candidates contested the election for the post of Sarpanch of Gram Panchayat, Nayagaon, District Damoh. Election was held on 22.02.2015 and the counting of the votes was made on 26.02.2015. After the said counting, the petitioner has secured 311 votes and 310 votes were secured by respondent no.1. Thus, the petitioner was declared elected by single vote as Sarpanch of the said Gram Panchayat and a certificate to this effect was also issued in his favour on 26.06.2015. Thereafter, respondent no.1 filed an Election Petition before the specified Officer (Respondent No.9) under Section 122 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam'). The respondent no.1 has raised an oral objection on 26.02.2015 by his agent against the counting of the votes. In the said election petition, respondent no.1 has stated that his agent attempted to give an application in writing for recounting of the votes but the Presiding Officer did not receive the same. The application in writing for recounting of votes was allegedly made on 27.02.2015 only i.e., the next day of declaration of result and issuance of certificate in favour of the petitioner. The election was declared and notice thereon was issued to the petitioner without verifying due compliance of the requirements as envisaged under Rules, 3, 4 and 7 of the M.P. Panchayats (Election Petitions, Corrupt Practices And Disqualification for Membership) Rules, 1995. On receipt of notice, the petitioner put in appearance before respondent no.9 and submitted his reply on the Election Petition. The Prescribe Authority (respondent no.9) has framed as many as 12 issues. The parties laid their respective evidence. After considering the evidence and the material available on record, the respondent no.9 has allowed the Election Petition by issuing direction for recounting the votes. It has further been submitted that although the order was passed on 05.09.2016, however, no information regarding passing of the order was given to the petitioner and he came to know only on 08.09.1996 regarding the order dated 05.09.2016. During pendency of this petition, the respondent no.9 recounted the votes and in the recounting respondent no.1 has secured 310 votes and the petitioner has secured 308 votes. In the said counting, respondent no.1 has secured more votes than the petitioner and therefore, respondent no.1 was declared elected and a certificate has been issued in favour of respondent no.1. Being aggrieved by this, the petitioner has filed the present petition.

(3.) Learned counsel appearing on behalf of the petitioner submits that the process of recounting was not properly done by the Election Tribunal. It has further been submitted that the objection was filed by the petitioner before the Election Tribunal with regards to the defect and mark in the ballot paper and made a prayer for rejecting the same, however, this was not considered in accordance with the Rule 76 of the Rule, 1995. When the process of recounting was going on after opening the box of election center no.49, envelop turn out and ballot paper showing that the same manipulation was done by the Election Officer but such objection is not properly considered properly by the Election Tribunal. He further submits that the order of recounting issued by the Election Tribunal is also illegal and contrary to the Rule 80 of the Narvachan Niyam, 1995. He further submits that respondent no.1 has not submitted any application in writing before the Prescribe Authority for recounting and, therefore, in absence of any application in writing, the Election Tribunal should not have issued the directions for recounting of the votes.