Madhya Pradesh High Court
Smt.Mumbi Bai vs Principal Secretary The State Of Madhya ... on 7 March, 2012
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HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.3529/2011
Smt. Mumbi Bai
Vs.
State of M.P. & others
____________________________________________________________
Shri Raghvendra Kumar with Shri Kapil Patwardhan, learned
Counsel for the petitioner.
Ms. J. Laxmi Aiyer, learned Panel Lawyer, for
respondent/State.
Shri Rahul Rawat, learned Counsel for respondent No.2.
____________________________________________________________
Present : Hon'ble Shri Justice K.K. Trivedi
____________________________________________________________
O R D E R
(07/03/2012) This petition is filed under Article 226 of the Constitution of India calling in question the orders dated 07.02.2011 and 14.02.2011 passed by the Sub Divisional Officer, Revenue, Damoh, the prescribed authority of Election Tribunal, by which in an election petition filed by the respondent No.2, recounting of the votes was directed and after holding the recounting, the respondent No.2 was declared to be elected by one vote. It is contended that the election was rightly held. The petitioner herein was declared elected after the counting of the votes. Calling in question the said election, the respondent No.2 filed an election petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (herein after referred to as 'Act'). The Election Tribunal examined the case, recorded the evidence and thereafter holding that the counting of the votes was not rightly done, directed recounting of the votes. After conducting the recounting of the votes, recording the proceedings, the result of the 2 counting was declared declaring respondent No.2 as elected by margin of one vote. It is contended that such a recounting was not done in appropriate manner and, therefore, there was illegality committed by the Election Tribunal in declaring the respondent No.2, election petitioner, as successful in the election. Thus, it is claimed that the entire proceedings are vitiated because of non- compliance of mandatory provisions. It is contended that as per the settled law, recounting was not to be ordered in mechanical manner, which has been done and as such the order impugned are bad in law and are liable to be set aside.
2. Per contra, the respondent No.2, election petitioner, has contended that there was sufficient material to hold that the counting of the votes was not done rightly and, therefore, after recording the evidence, materially examining the facts with respect to the procedure followed in counting of the votes, on the basis of available evidence on record, the Election Tribunal reached to the conclusion that counting of votes was not rightly done and, therefore, order of recounting of votes was passed. After holding the recounting since it has been found that there was error in conducting the counting at the time of closer of voting, in fact by one vote the election petitioner, respondent No.2, was to be declared as elected, such orders have been passed and respondent No.2 has been declared as elected. Thus, it is contended that there is nothing wrong committed by the respondent-authority in ordering recounting or conducting the recounting and declaring respondent No.2 as elected Sarpanch.
3. The respondent State has also filed the return contending that the petitioner, who was a respondent in the election petition, was given full opportunity of hearing. Proper opportunity to produce evidence was granted. On 3 the basis of the available evidence on record, the Presiding Authority of the Election Tribunal has rightly reached to the conclusion that there was irregularities committed in counting of the votes and rightly recounting was ordered. It is contended that on recounting it has been found that petitioner herein has secured 361 votes whereas respondent No.2 has secured 362 votes out of the total votes polled and, therefore, she was declared as elected Sarpanch. It is, thus, contended that the petition being devoid of any merit, is liable to be dismissed. The official respondents have also produced the entire record of the election petition and the recounting of the votes before this Court for perusal.
4. Heard learned Counsel for the parties at length and minutely examined the records.
5. On being notified, the elections were held in the month of January, 2010 for election of Sarpanch of Gram Panchayat, Bheelampur, District Damoh. The petitioner and respondent No.2 Smt. Ganeshi Bai, both were the candidates for such election. After closer of the voting, the counting of the votes was done and the petitioner was declared as elected Sarpanch of the said Gram Panchayat. The notification in this respect was issued on 03.02.2010, allegedly on which date the certificate of election was given to the returned candidate. It is the contention of the respondent No.2 while filing the election petition that the same was not filed within 30 days of limitation as prescribed under sub-section (2) of Section 122 of the Act, therefore, she has moved an application for condonation of delay in filing the election petition. Such an objection was also raised by the petitioner, the returned candidate, in writing with respect to the maintainability of the election petition. The order-sheets of the record of election petition produced by the Panel Lawyer indicate that on 19.03.2010 the 4 election petition was filed along with an application under Section 5 of the Limitation Act. The Election Tribunal thereafter issued notices for hearing on admission of the election petition as also for condonation of delay. The Election Tribunal vide order dated 12.04.2010 condoned the delay and proceeded to decide the election petition on merits. First of all this Court is required to examine whether the Election Tribunal was right in condoning the delay of the election petition vide order dated 12.04.2010 or not ?
6. The election petitions are to be filed as provided under Section 122 of the Act, which reads thus :
"122. Election petition.-(1) An election under this Act shall be called in question only by a petition presented in the prescribed manner :-
(i) in case of Gram Panchayat or Gram Sabha to the Sub Divisional Officer (Revenue);
(ii) in case of Janpad Panchayat to the Collector; and
(iii) in case of Zila Panchayat to the Divisional Commissioner and not otherwise.
(2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified.
(3) Such petition shall be inquired into or disposed of according to such procedures as may be prescribed."
Sub-section (2) of Section 122 of the Act specifically prescribes that no such petition shall be admitted unless it is presented within thirty days on the date of which the election in question was notified. The election petitioner, respondent No.2, has shown as if the elections were notified on 05.02.2010. If that was the date of notification of the election, the competent authority was not justified in delivering the certificate of election to the returned candidate. As is contended, such certificate of declaration 5 of the result after notification was issued on 03.02.2010. The limitation was to be counted from that date. It is prescribed under Rule 90 of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 that a notification is required to be issued by the Commission. The provisions of Rule 90 of the aforesaid Rules read thus :
"90. Manner of notifying election.- The Commission shall notify or cause to be notified --
(a) every election of a Panch and Sarpanch of a Gram Panchayat, by affixing a notice in Form 26-A on the notice board in the office of the Gram Panchayat concerned and in the office of the Janpad Panchayat within such Gram Panchayat is situate;
(b) every election of a member of a Janpad Panchayat, by affixing a notice in Form 26-B on the notice board in the office of the Janpad Panchayat concerned and in the office of the District Election Officer, and
(c) every election of a member of a Zila Panchayat, by affixing a notice in Form 26-
C on the notice board in the office of the Zila Panchayat and in the office of the District Election Officer."
7. The effective date for starting limitation as prescribed in sub-section (2) of Section 122 of the Act is the date of notification of the election. Since no prescription is made under the Act itself, delay caused in filing of the election petition is not condonable as provisions of Section 5 of the Limitation Act would not be attracted at all. There is a statutory bar provided in admitting election petition beyond the period of thirty days from the notification of the election. It is the settled law that if a statutory bar is created by the legislature, by making it mandatory that an election petition is required to be presented within the period of limitation prescribed, without making any provision for condonation of delay or prescribing any 6 discretion that the Election Tribunal may condone the delay in filing of the election petition, such an election petition cannot be entertained beyond the period of limitation by the Election Tribunal. The only consequence of causing the delay in filing the election petition would be its dismissal and nothing else. This Court in case of Kishan Singh vs. Harveer Singh, 1998(1) MPWN 83 had held that the limitation prescribed for filing of the election petition under Section 122 cannot be extended. It has been held in the aforesaid case that the provisions of Limitation Act including the provisions of Section 5 had no application to such proceedings. The very same law has been considered by this Court in the case of Kalka Prasad vs. Ramji Lal & others, 2002(3) MPLJ 121 and in the said case it has been categorically held that in the light of the aforesaid enunciation of law, the petition was not maintainable as it was filed beyond the period prescribed in sub-section (2) of Section 122 of the Act. The Tribunal in the instant case has accepted the petition by condoning the delay. The reasons assigned for delay was that the election petitioner was collecting the documents and since the said documents were made available only on 19.02.2010, the election petition could not be filed within the period of limitation. By no stretch of imagination could it be said that after obtaining the documents on 19.02.2010, there was any justified reason for not filing the election petition up to 06.03.2010, which was the last date for filing of the election petition. Apparently the order passed by the Election Tribunal was not correct. The entire proceedings of election petition are thus vitiated.
8. Though the ground of delay in filing the election petition was the ground for opposing grant of any relief in the said petition, but unfortunately such a vital ground has not been raised in this writ petition. However, this Court has sent for the record of the Election Tribunal and after 7 examining the said record, has found that the Election Tribunal has committed gross illegality in condoing the delay and hearing the election petition of respondent No.2 on merits. On this ground alone, this petition succeeds and is hereby allowed. The orders impugned passed by the Election Tribunal are hereby quashed. In fact the election petition of respondent No.2 is declared to be barred by limitation and is hereby dismissed. The petitioner will continue to act as Sarpanch of the Gram Panchayat concerned.
9. The writ petition succeeds and is allowed to the extent indicated herein above. There shall be no order as to cost.
(K.K. Trivedi) Judge Skc