Madhya Pradesh High Court
Bhupendra Singh vs Panchayat And Social Welfare ... on 2 February, 2018
Jasleen Singh Saluja
2018.02.07 17:39:13 +05'30'
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
W.P.No.8352/2016
(Bhupendra Vs. State of M.P. & Others)
INDORE
02.02.2018
Shri Manuraj Singh, learned counsel for the petitioner.
Ms. Bharti Lakkad, learned GA for the respondent/State.
Shri Jagdish Dangi, learned counsel for the respondent No.4 & 5.
None for others.
The petitioner has filed the present petition being aggrieved by order dated 24.08.2016 by which SDO, Khilchipur has dismissed the election petition preferred by the petitioner U/s 122 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1955. The petitioner and the respondent No.5 to 11 contested the election for the post of Sapranch of Gram Panchayat, Baangpura held on 22.02.2015. In the said election respondent No.5 has been declared as Sarpanch by the difference of 6 votes.
Being dissatisfied with the defeat and election of respondent No.5, the petitioner filed election petition under Section 122 of the of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1955 before the SDO. The petitioner has assailed the election on the ground of counting invalid votes in favour of respondent No.5 and prayed for recounting of the votes.
After notice, the respondents filed their reply and contested the election petition on merits. The petitioner examined himself and Hemraj Solanki, Bhawani Singh and Moti Singh and respondent No.5 examined himself and Jaswant Singh. Thereafter, final arguments were heard and vide order dated 24.08.2016. Learned SDO has dismissed the election petition, hence, the present petition before this Court.
The petitioner has assailed the impugned order mainly on the ground that the SDO while deciding the election petition failed to follow the procedure of law. He has not framed any issues for adjudication, therefore, the order is bad in law in light of the judgment passed in the case of Kalka Prasad Vs. Ramjilal & Others, reported in 2002(3) MPHT
547. The petitioner was defeated by 6 votes. The Returning Officer ought to have considered his application for recounting of the votes because invalid votes were counted in favour of respondent No.5. The petitioner submitted an application dated 23.02.2005 before the Returning Officer (Ex.P/1) for recounting of the votes, but the same was not considered.
Learned counsel for the respondent submits that the petitioner has failed to give any evidence in support of the allegations made in the petition. After appreciating the oral as well as documentary evidence, learned SDO has rightly dismissed the election petition.
The petitioner has assailed the impugned order mainly on the ground that learned SDO before deciding the election petition did not framed any issues for adjudication. The Trial is liable to be decided election petition like a civil suit, therefore, under Order 14 of the CPC, the issues were required to be framed.
After filing the reply by the respondents, the petitioner examined his witnesses and thereafter, the respondents have examined their witness. The petitioner has examined his witness as he was aware that on what ground he has to give evidence & participated in the entire trial of election petition. When the judgment came against him now he is challenging the same on the ground that the issues have not been framed. At any point of time he has not made application to the SDO for framing of the issues as he gave the evidence, because, he was aware that on what issues he is required to give evidence.
The Apex Court in the case of Nedunuri Kameswqramma Vs. Sampati Subha Rao, reported in AIR 1963 SC 884 has held as under:
"Since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion"
The Division Bench of the Karnataka High Court in case of B.R. Mulani Vs. A.B. Aswathanarayan & Others, reported in AIR 1993 Karnataka 257 has held that whenever a party raises a plea and does not have the issue raised in regard and goes to trial and have the matter decided without having an issue raised on the plea, the party must be deemed to have given up such a plea.
Therefore, in view of the aforesaid law laid down and in the present case also, during the entire trial, the petitioner never prayed for framing of the issues and led the evidence and permitted the SDO to pass the judgment. Once, the judgment has been passed against him, now, he cannot allege that the SDO did not framed the issues, hence, the contention of Shri Manuraj Singh, learned counsel for the petitioner is hereby rejected.
That the petitioner has alleged that votes of some army man have been casted while they were in duty. One Rajendra Singh was missing but his vote has also been casted. The name of Nitu Bai was wrongly included in the voter list of Baangpura. At the time of counting, invalid votes were not shown to the agent of the candidates.
The Returning Officer has filed reply by submitting that there was sufficient light in the room and he did not receive any application for recounting. The petitioner himself has admitted that he has not made any complaint in respect of the illegality on the day of election. Learned SDO has appreciated the evidence on record in para 6, 7 & 8 of his order and dismissed the petition.
This Court in writ petition under Article 226 of the Constitution of India cannot re-appreciate the evidence as an appellate authority, hence petition is hereby dismissed.
(VIVEK RUSIA)
jasleen Judge