Madhya Pradesh High Court
Ramesh Bhabor vs State Election Commission Of Madhya ... on 13 July, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 13th OF JULY, 2022
WRIT PETITION No. 16082 of 2022
Between:-
RAMESH BHABOR S/O KHIMAJI BHABOR ,
AGED ABOUT 55 YEARS, OCCUPATION:
BUSINESS AND SOCIAL WORKER 25, PATEL
FALIYA, VILLAGE BORWA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI VIBHOR KHANDELWAL, ADVOCATE )
AND
STATE ELECTION COMMISSION OF MADHYA
PRADESH THROUGH CHIEF ELECTRORAL
1. OFFICER ARERA HILLS, BHOPAL (MADHYA
PRADESH)
DISTRICT ELECTION OFFICER (PANCHAYAT)
DISTRICT JHABUA ADMINISTRATIVE
2. COMPLEX BASANT COLONY (MADHYA
PRADESH)
RETURING OFFICER (PANCHAYAT) POLLING
STATION NO. 122, WARD NO. 1 TO 6 GRAM
3. PANCHAYAT KHOKHAR KHANDAN BLOCK
THANDLA (MADHYA PRADESH)
RETURING OFFICER (PANCHAYAT) POLLING
STATION NO. 123, WARD NO. 7 TO 10 GRAM
4.
PANCHAYAT KHOKHAR KHANDAN BLOCK
THANDLA (MADHYA PRADESH)
Signature Not Verified .....RESPONDENTS
Signed by: PANKAJ
PANDEY
Signing time: 20-07-2022
13:45:11
2
(BY SHRI ASHOK AIREN ADVOCATE FOR RESPONDENT NOS.2 TO
4)
This petition coming on for orders this day, the court passed
the following:
ORDER
Heard.
2. This petition has been filed by the petitioner under Article 226 of the Constitution of India being aggrieved of the inaction on the part of the respondent Nos.3 and 4, whereby they have not taken any action on the application filed by the petitioner on 27.06.2022, under Rule 80 of Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (in short ' Rules of 1995') for recounting of the votes casted in the election held for the post of Sarpanch of Gram Panchayat Khokhar Khandan, Block Thandla, District Jhabua and have kept the said application pending without any justifiable reason.
3. Admittedly, the petitioner has contested the aforesaid election for the seat of Sarpanch from the aforesaid Gram Panchayat wherein the polling took place on 25.06.2022.
4. The case of the petitioner is that Gram Panchayat Khokhar Khandan comprises 10 wards out of which ward Nos.1 to 6 are situated in village Khokhar Khandan bearing polling station no.122 and ward no.7 to 10 are situated in village Borwa bearing polling station no.123 and total number of voters in the said Gram Panchayat are 1392. The case of the petitioner is that the respondent No.3, the Returning Officer, responsible for polling station no.122, ward Nos.1 to 6 Signature Not Verified of Gram Panchayat Khokhar Khandan has deliberately avoided Signed by: PANKAJ PANDEY Signing time: 20-07-2022 13:45:11 3 counting of the votes in respect of ward No.6 of the said Gram Panchayat, despite it being obligatory on his part to count every ballot paper which has not been rejected under Rule 76 of the Rules of 1995.
5. The contention of the petitioner is that the respondent No.3 has also committed grave illegality by calculating the total number of valid votes as 782 despite the fact that the total number of votes polled were only 691 and out of which 42 votes were rejected and as such the right count for total number of valid votes has to be 649 only however, the aforesaid fact is belied by the certificate issued by the respondent no.3 under Section 77(2) of the Rules of 1995 on 25.06.2022. Apart from that, the rejection of 42 and 51 ballot papers by the respondent Nos.3 and 4 respectively was also illegal and has materially affected the result of the election. It is stated that the winning candidate Shri Chatar Singh Khokhar has won with a margin of 54 votes only and had it not been for the respondent Nos.3 and 4's inaction to count the votes properly, the result of the election would have been different. It is also stated that after the announcement made by the respondent No.3 and 4, that Chatar Singh Khokhar has won by 54 votes, petitioner also tried to file an application for recounting of votes before respondent No.3 and 4 on the ground of illegality committed while counting the votes, but his request fell on deaf ears and the petitioner or his agents were not accorded any opportunity to file an application seeking recounting of votes before issuing the certificate dated 25.06.2022 and, on the contrary, the respondent No.3 also threatened the petitioner of lodging a criminal case for preventing him Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 20-07-2022 13:45:11 4 from discharging his statutory duties. It is also submitted that regardless of such efforts on the part of the respondent No.3, the petitioner did manage to file application under Rule 80 of the Rules 1995 before the respondent No.2 District Election Officer and the respondent No.3 Returning Officer respectively for recount of votes, but it was kept in abeyance and has still not been decided. Subsequently, on 04.07.2022 a legal notice was also sent to the respondents to decide the application for recounting of votes within two days time, but the same has still not been decided.
6. Shri Vibhor Khandelwal, learned counsel appearing for the petitioner has submitted that the inaction on the part of the respondents runs contrary to Rule 80 (3) of Rules of 1995 and has relied upon a decision rendered by the co-ordinate Bench of this Court at Jabalpur in W.P. No.15195 of 2022 dated 09.07.2022 wherein also in the similar circumstances, this Court has directed the respondents to take decision and inform the petitioner about the outcome of his application for recounting of votes.
7. A preliminary reply has been filed by the respondents. Counsel appearing for the respondents has opposed the prayer and it is submitted that the petition is liable to be dismissed as no case for interference at this stage is made out as the results are going to be declared tomorrow only and all the ballot papers and other documents have already been kept in sealed boxes as provided under Section 77 and even if the petitioner's grievance is that no counting took place in respect of ward no.6, its ballot papers have also been kept under seal Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 20-07-2022 13:45:11 5 and it will only be opened tomorrow and if any discrepancy arises, the petitioner can certainly take this ground in the election petition.
8. Heard counsel for the parties and perused the record.
9. From the record, it is apparent that the voting in the present case took place on 25.06.2022, whereas the written objections could be filed only on 27.06.2022 and 28.06.2022 to the respondent Nos.3 and 2 respectively. In the considered opinion of this Court, as provided under Rule 80(5) of M.P. Panchayat Nirvachan Niyam, 1995 it is apparent that once the Returning Officer has counted the votes polled by each candidate and has announced the same under Sub-rule (2) of Rule 77, and has completed and signed the result sheet, no application for recounting shall be entertained thereafter. In the present case, admittedly, the counting completed only on 25.06.2022, and all the procedural formalities under Rule 80 (5) were completed and as such the Returning Officer had no authority to accept any application for recounting of votes thereafter as the application for recounting of votes has to be presented soon after the counting of votes is completed. In such circumstances, the only remedy lies with the petitioner to assail any alleged irregularity or illegality committed by the Returning Officer or the District Election Officer is by way of an election petition only. In view of the same, the decision relied upon by the petitioner is of no avail to him, as in that case also this Court had only directed the respondents to decide the petitioner's application. In such circumstances no interference is called for at this juncture.
10. Accordingly, the petition being devoid of merits, is hereby Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 20-07-2022 13:45:11 6 dismissed.
11. However, liberty is reserved to the petitioner to take recourse of such remedy as is available to him under the law, including filing of an election petition.
(SUBODH ABHYANKAR) JUDGE Pankaj Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 20-07-2022 13:45:11