Madhya Pradesh High Court
Pooja Singh vs State Of Madhya Pradesh on 4 August, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
HIGH COURT OF MADHYA PRADESH,
AT JABALPUR
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 4th OF AUGUST, 2022
WRIT PETITION No.16561 / 2022
BETWEEN:-
POOJA SINGH, AGED ABOUT 27 YEARS,
W/O. SHRI VIKASH SINGH, OCCUPATION
HOUSEHOLD, CANDIDATE FOR MEMBER
OF WARD NO.17, ZILA PANCHAYAT SIDHI,
R/O. VILLAGE SAPHI, TAHSIL BAHRI,
JANPAD SHAWAL, DISTRICT SIDHI (M.P.)
....PETITIONER
(BY SHRI SHASHANK SHEKHAR, SENIOR ADVOCATE WITH SHRI
BHOOPESH TIWARI, ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH THE PRINCIPAL SECRETARY,
PANCHAYAT & RURAL DEVELOPMENT
DEPARTMENT, VALLABH BHAWAN,
BHOPAL (M.P.)
2. STATE ELECTION COMMISSION,
THROUGH ITS SECRETARY, NIRWACHAN
BHAWAN, ARERA HILLS, BHOPAL, M.P.
3. COLLECTOR-CUM-DISTRICT RETURNING
OFFICER, (LOCAL BODY ELECTION)
DISTRICT SIDHI (M.P.)
4. RETURNING OFFICER (PANCHAYAT)
CUM-SUB DIVISION OFFICER,
SIHAWAL, DISTRICT SIDHI (M.P.)
5. SMT SHRADDHA DEVENDRA SINGH,
-:- 2 -:-
W.P.No.16561/2022
W/O. SHRI DEVENDRA SINGH "DADU"
R/O. VILLAGE TENDUA NO.1, JANPAD
SIHAWAL, DISTRICT SIDHI (M.P.)
...RESPONDENTS
(RESPONDENTS/STATE BY SHRI S.K.SHRIVASTAVA, GOVERNMENT ADVOCATE; RESPONDENT NO.2/ELECTION COMMISSION BY SHRI SIDDHARTH SETH, ADVOCATE AND RESPONDENT NO.5 BY SHRI SANJAY AGRAWAL, SENIOR ADVOCATE WITH SHRI ANUL AGRAWAL, ADVOCATE.
Reserved on : 28.07.2022 Delivered on : 04.08.2022 (O R D E R) Invoking Article 226 of the Constitution of India, the petitioner has filed this writ petition praying for the following reliefs:-
"i. To issue any writ in the nature of certiorari to quash the order dated 15.07.2022 contained as ANN-P/7, so issued by the Respondent No.2, as far as it relates to petitioner's ward no.17; ii. To issue any writ in the nature of mandamus directing the respondents 2 and 3 to hold fresh elections for the post of member of Ward No.17 Zila Panchayat Sidhi, District Sidhi, M.P.;
iii. To issue in writ in the nature of mandamus directing the respondent to call for the entire record so far it relates to ballot papers and counting of polling booth pertaining to election of Ward No.17 Zila Panchayat Sidhi District Sidhi (M.P.) from the office of Respondent No.3 and 4 for kind perusal of this Hon'ble Court;
iv. To issue any writ in the nature of mandamus directing the respondent No.2 to make an enquiry and to take appropriate action against the erring officers involved in the election of Ward No.17 Zila Panchayat Sidhi District Sidhi, M.P.
-:- 3 -:-W.P.No.16561/2022
v. To grant any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of the litigation in favour of the petitioner."
2. A glance over the relief clause and the averments articulated in the petition, transpires that the principal grievance of the petitioner is with regard to an order passed by the Election Commission on 15.07.2022 whereby the Election Commission found that there was no substantial irregularity noticed in the election of Ward No.17 of Zila Panchayat Sidhi, District Sidhi and therefore has taken a decision that no re-poll was needed to be conducted and further disseminated that the result of the election be declared on 11.07.2022. Carrying such grievance, the petitioner has claimed for issuance of a direction to respondents No.2 and 3 for conducting fresh election in Ward No.17 of Zila Panchayat Sidhi.
3. The encapsulated facts of the case are that a notification was issued on 27.05.2022 by respondent No.2 for conducting election for the post of Member of Zila Panchayat, Sidhi under the provisions of Rule 28 of M.P. Panchayat Nirvachan Niyam, 1995. Thereafter, respondent No.2 issued an election programme by fixing date of submission of nomination forms from 30.05.2022 to 06.06.2022. Similarly, the date for scrutiny was fixed for 07.06.2022 and withdrawal of the nomination form was till 10.06.2022. The polling was scheduled for 25.06.2022 and counting of votes was scheduled between 28.06.2022 and 30.06.2022. The petitioner as well as respondent No.5 with seven other candidates submitted their nomination form
-:- 4 -:-
W.P.No.16561/2022
for the post of Member, Zila Panchayat, Sidhi and as such there were nine candidates, who participated in the election of Member, Zila Panchayat for ward No.17.
During the course of counting of votes, it had come to the notice of the petitioner that some ballot papers were missing from ballot-boxes and in some of ballot-boxes excess ballot-papers were found compared to casting of votes. According to the petitioner, ballot papers which were found short in respect of Ward No.17 were found in ballot-box pertaining to Ward No.14. As per the petitioner, such irregularity clearly indicated that there was gross illegality committed while conducting the election and mischief has been played by the Election Commission so as to favour their choice candidate i.e. respondent No.5.
4. Since the objections raised before the returning officer alleging irregularities did not yield any result nor could drift anything to the surface, therefore, according to the petitioner, it is indispensable to issue a direction for conducting fresh election in ward No.17.
5. In retaliation, respondents No.2 to 4 have filed their reply mentioning therein that the petition is liable to be dismissed on the ground that the petitioner had suppressed the material fact that at the time of voting certain irregularities were brought to the notice of the authorities as in polling booth No.257 certain ballot papers were found mismatched with regard to nomenclature of candidates;
-:- 5 -:-
W.P.No.16561/2022
sequence of contestants on the ballot papers was not tallied with available ballot papers, therefore, re-poll was ordered on 26.06.2022 and for polling booth No.257 of ward No.17 re-poll has already been conducted but this fact has not been made part of petition by the petitioner. Such obvious suppression of material fact per se makes the petition fit for dismissal. It is also stated in the reply of Election Commission that in earlier round of litigation, in a writ petition preferred by the petitioner i.e. W.P.No.15565/2022 the counsel for Election Commission had given undertaking to the Court that the irregularities pointed out by the petitioner were already processing under active consideration of the Election Commission, therefore, this Court had disposed of that petition directing the Election Commission to take decision in that regard and liberty had been granted to the petitioner that, if occasion arises, she may approach the Court again. If Election Commission has taken decision that so far as the irregularity committed during the course of conducting election was only in respect of polling booth No.257 and Election Commission has resolved the said controversy and already directed for re-poll of Polling booth No.257, that has also been done, therefore, no re-poll of ward No.17 is required. The Election Commission has also taken a stand about maintainability of petition saying that result of ward No.17 has already been declared in which respondent No.5 has been declared a 'winning candidate' and certificate of returned candidate has already been issued in favour of respondent
-:- 6 -:-W.P.No.16561/2022
No.5 and therefore under these circumstances, the petition filed under Article 226 of the Constitution of India is not an efficacious remedy, conversely as per the provisions of Article 243(O) of Constitution of India, the grievance of the petitioner can be redressed only by way of election petition, if any, is filed under Section 122 of the M.P. Panchayat Raj Adhiniyam, 1993.
6. Adding some more feathers to his cap, Shri Seth, learned counsel appearing for respondent No.2 also raised an objection that if the application submitted by the petitioner before the Collector and returning officer on 04.07.2022 is seen then it would be amply clear that on the said date, the only objection raised by the petitioner was for recounting of votes and indeed in that application i.e. Annexure-P/3 no such request for conducting re-poll in Ward No.17 was made. In the application submitted by the petitioner before the State Election Commission vide Annexure-P/4, the request was only made in respect of recounting of votes in ward No.17. To bring clarity, he submitted that there was no request however made for re-polling in ward No.17 and as such request made in this petition cannot be entertained.
7. In turn, Shri Sanjay Agrawal, Senior Advocate appearing for respondent No.5 has also raised an objection with regard to maintainability of petition saying once result of the election has been declared and certificate has been issued in favour of the returned candidate i.e. respondent No.5 then only by way of
-:- 7 -:-W.P.No.16561/2022
election petition, the election of returned candidate can be set aside and therefore petition under Article 226 of the Constitution of India is not maintainable. He has also submitted that the dispute with regard to 20 ballot papers of ward No.17 found in ward No.14 pertained to booth No.257 Bailha of ward No.17 and therefore this mistake was rectified by taking cognizance of situation and re-poll was already done on 26.06.2022 in pursuance to the instructions of Election Commission on 26.06.2022 and this fact has been concealed by the petitioner and therefore petition is liable to be dismissed.
8. Shri Shashank Shekhar, learned Senior counsel appearing for the petitioner has also placed reliance upon the decision reported in AIR 2017 MP 71 (Pradhuman Verma v. State of M.P. and Others) wherein the Division Bench has interfered in the election of Panchayat and eventually set aside the same. However, facts of that case are distinguishable with the facts of case at hand. In the said case, the Court finding that there happened violence and rioting during the course of conducting election and after coming to the conclusion that those facts were not required in a fact finding enquiry, arrived at a firm conclusion that such election cannot be said to be free and fair election and therefore became inclined to interfere in the matter. But, here in this case, no such allegation has been made by the petitioner nor substantiated by her that there was any incident of violence or riot during the election, therefore, the view of the Division Bench taken on the basis of
-:- 8 -:-W.P.No.16561/2022
then existing situation, does not provide any help to the petitioner in absence of any such eventuality.
9. I have patiently heard the submissions of learned counsel for rival parties and also perusal of record,
10. Juxtaposing the applications initially submitted by the petitioner i.e. Annexure-P/3 and P/4 before the returning officer or Election Commission, it is gathered that no request for re-poll was made by the petitioner, conversely she implored only in respect of recounting of votes. Of a further note, when the request made in those applications did not yield any result, then the disgruntled petitioner knocked the doors of judiciary by filing a writ petition. In the course of hearing of that petition, the Election Commission had undertaken that appropriate decision would be taken by them in respect of the grievance of the petitioner and that petition was disposed of. The decision since has already been taken pointing out that in booth No.257 re-poll has already been done and re-poll in ward No.17 is not required. Obviously, it is emerged that the Election Commission has already rectified the irregularities pointed out about booth No.257 of ward No.17.
11. Adverting to the submission made by Shri Shekhar, Senior Advocate, who tried to demonstrate during the course of argument by showing the ballot papers and highlighting the mismatch in two sets of ballot papers wherein the name of candidates were not similar and not tallied with one set of ballot papers than that
-:- 9 -:-W.P.No.16561/2022
of other one, this Court is highly reluctant to intervene in election of ward No.17 inasmuch as the result has already been declared. Precisely, these facts are disputed facts and do not crystallize that there was illegality committed by the Election Commission in conducting the election. At this juncture, I recapitulate the submission put-forth by Shri Seth, which gives clarity to the extent that the ballot papers were printed at district level and at the moment, irregularity of mismatch of 20 ballot papers was brought to the notice of Election Commission, immediate cognizance was taken and re-poll was accordingly ordered in booth No.257. In other words, it emerges that the Election Commission did its best in conducting free and fair election and such conduct does not exude any impression which could lead to visualise any possibility of favouritism towards anybody. Admittedly, the result of ward No.17 has been declared; respondent No.5 has been declared as 'winning candidate' and certificate of returned candidate has also been issued in her favour.
Inevitably, the existing circumstances and the settled legal position, provide leeway to get the election of returned candidate annulled only by way of election petition inasmuch as the irregularities pointed-out by the counsel for the petitioner are insufficient to issue a writ directing re-poll. The view of this Court also gets reinforced by myriad decisions rendered in number of petitions whereby the petitions were disposed of giving liberty to petitioner to raise such grounds in the election petition. Similarly, various decisions cited by Shri Sanjay Agrawal, learned
-:- 10 -:-
W.P.No.16561/2022
Senior counsel, reported in 1996 MPLJ 134 (Sugnabai w/o Hariram v. Election Officer, Gram Panchayat Bamni Bujurga, Tah Kanmod, Dewas and others); 2017(3) MPLJ 693 (Sandhaya Mihilal Rai v. State of M.P. and others) and a decision rendered by this Court in W.P.No.16060/2022 (Smt. Parvati Ahirwar v. The State of Madhya Pradesh & Ors.) and other petitions decided by this Court, also bolster the view taken by this Court.
12. Worthwhile it is to mention here that recently in identical situation relatable to ward No.14 a writ petition i.e. W.P.No.16560/2022 has been disposed of by this Court on 02.08.2022 showing reluctance to interfere in the matter, rather, giving liberty to the petitioner therein to raise such grounds in an election petition, if any, filed under Section 122 of Adhiniyam, 1993.
13. In view of the above discourse, I refrain to interfere in the instant petition filed under Article 226 of the Constitution of India. Albeit, the petitioner is set at liberty to raise these grounds and challenge the election of respondent No.5 by filing election petition, if so advised, under Section 122 of the Adhiniyam, 1993.
14. With the aforesaid liberty, the petition is dismissed.
(Sanjay Dwivedi) Judge sudesh Digitally signed by SUDESH KUMAR SHUKLA SUDESH KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=1d5e479f08e68eda8f9271dbbe2c4bc3916264aec736f7c5f5 885257f5eeaeb7, SHUKLA pseudonym=70EE703D36E97ABB20BA3C79C921929E09400A16, serialNumber=7D462390C18350EF7C40811B12AB45D82AF1259878 762BAC356DCFA877F02654, cn=SUDESH KUMAR SHUKLA Date: 2022.08.04 17:36:14 +05'30'