IMPORTANT POINTS
(1) Where a right or a liability is created by a statue, which gives a special remedy for enforcing it, remedy provided by statue must be availed.
(2) When it comes to interpretation of statutory provisions relating to election law, jurisprudence on the subject mandates strict construction of provisions.
(3) Recounting of Votes – Till result is declared, it may not be possible for the party to apply for re-counting of votes to Returning Officer and his only remedy would be to file Election Petition.

JUDGMENT :

BELA M. TRIVEDI, J.

1. The aggrieved appellant has preferred the present appeal challenging the legality and validity of the impugned judgment and order dated 25.04.2022 passed by the High Court of Chhattisgarh, Bilaspur in Writ Appeal No. 72 of 2022, whereby the Division Bench of High Court has allowed the said writ appeal and set aside the order dated 06.01.2022 passed by the Single Bench in W.P. (C) No. 09 of 2022. Consequently, the Division Bench has set aside the order dated 20.12.2021 passed by the Sub Divisional Officer and also the recounting of votes undertaken on 31.12.2021.

2. The bare summary of facts necessary for the purpose of deciding this Appeal are: -

(i) 28.01.2020 – The election of Gram Panchayat, Semarkona Block, District Mungeli, Chhattisgarh took place for the post of Sarpanch in which petitioner, respondent no.1 and respondent nos.5 to 8 contested the election.

(ii) 30.01.2020 – The result of election was declared in which respondent no.1 was declared elected.

(iii) 07.02.2020 - The petitioner filed the Election Petition before the Sub Divisional Officer, Mungeli and prayed for recounting of the votes mainly on the ground that there was no sufficient light at the three booths as stated therein.

(iv) 18.10.2021 - The Sub Divisional Officer (R), Mungeli allowed the said Election Petition and directed recounting of votes.

(v) 08.11.2021 – The respondent no. 1 having challenged the said order dated 18.10.2021 passed by SDO approached the High Court by filing writ petition, which came to be allowed on the ground that SDO had not followed the due process of law. The High Court also directed the SDO to decide the Election Petition in accordance with the provisions contained in Rule 11 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as the Rules of 1995).

(vi) 20.12.2021 – The Sub Divisional Officer after recording the evidences of witnesses held that there was insufficiency of light at the polling stations, and ordered for recounting in three polling stations on 31.12.2021.

(vii) 31.12.2021 – After the recounting of the votes, the petitioner herein was declared as elected Sarpanch.

(viii) 06.01.2022 – The respondent no. 1 having challenged the said order of SDO by filing the writ petition, the same came to be dismissed by the Single Bench of the High Court.

(ix) 25.04.2022 – The respondent no. 1 having preferred the writ appeal before the Division Bench, the same came to be allowed vide the impugned judgment and order, mainly on the ground that the relief claimed by the petitioner in the Election Petition was not in consonance with the Rule 6 of the Rules of 1995.

3. The crisp question of law that falls for consideration before this Court is whether the Election Petition filed by the petitioner before the Sub Divisional Officer (R) seeking relief of recounting of votes alone, without seeking any relief under Rule 6 of the Rules of 1995 was maintainable?

4. Before adverting to the submissions made by the learned counsel for the parties on the issue involved it would be apt to mention that as per Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the said Act) an election under the said Act could be called in question only by a petition presented in the prescribed manner, and in case of Panchayat to the Sub Divisional Officer (R), within 30 days from the date on which the election in question was notified. The State Government in exercise of the powers conferred by sub-section (1) of Section 95 read with Section 43 of the said Act of the 1993 has framed the Rules called the Chhattisgarh Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as the Nirvachan Niyam 1995). Chapter IX of the said Nirvachan Niyam 1995 deals with “Poll and voting for election”. Sub rule (1) and sub rule (2) of Rule 77 thereof being relevant are reproduced here under: -

“77. Counting of votes. –

(1) Ever