Point of Law : Election Result – Challenged - Election petition had a jurisdictional error, therefore, the Tribunal was not justified to go into it as the very basis of exercising the jurisdiction was missing.

JUDGMENT :

1. All the three petitions are heard and decided together as the common thread passes through it is about the election of Sarpanch of Gram Panchayat.

2. WPC No.2888 of 2020 is preferred by Smt. Ishwari Surendra Kashyap, the original returned candidate who was declared elected at Panchayat Election as Sarpanch of village Nigarband, Tahsil Takhatpur, Distt. Bilaspur. The said election was challenged by Smt. Ambalika Kashyap, who has filed Writ Petition No. WPC No.3354/ 2020. Another petition bearing WPCR No.651 of 2020 has been filed by Smt. Ishwari Surendra Kashyap, the returned candidate, to take action against Smt. Ambalika Kashyap and Praveen Kashyap on the ground that they have illegally tampered the bundles of valid and invalid ballot papers of Sarpanch election which were kept in separate plastic bags and prayed for a direction to lodge FIR against them.

3. The facts of the case are that the petitioner and Respondent No.5 amongst others have filed nominations to contest the election for the post of Sarpanch of village Nigarband, Tahsil Takhatpur, Distt. Bilaspur. On 03.02.2020 the election was conducted and after the election the result was declared the petitioner had won by a margin of 22 votes. Subsequently, respondent no.5 Smt. Ambalika Kashyap has filed an election petition before the Sub-Divisional Officer, Kota, on the ground that the valid ballot papers were not shown to her agents and the invalid votes were counted in favour of the returned candidate with the help of Presiding Officer. The primary allegation was that the voting was completed in Booth Nos. 69 & 70 and after making the bundles of the ballots, it was not shown to the election agents and the invalid ballets which were having both thumb sign and markings were considered in favour of the returned candidate, which were otherwise invalid. The election petition having been filed, respondent no. 3 the SDO after pleading, has framed the following 3 issues :

1- D;k xzke iapk;r] fuxkjcan ds ljiap in gsrq fuokZpu esa erx.kuk ds le; vH;fFkZ;ksa ,oe~ muds ,ts.Vksa dks eri= fcuk fn[kk;s ;kfpdkdrhZ ds erksa dks vuk-Ø-&5 ds i{k esa x.kuk fd;k x;k \
2- D;k vaxqBk yxs eri=ksa dks fof/kekU; djrs gq, vuk-Ø-&5 ¼bZ'ojh lqjsUnz d';i½ ds i{k esa x.kuk dh xbZ gS\
3- D;k fuokZpu dk;Z esa vfu;ferrk ds laca/k esa rr~le; ;kfpdkdrhZ dh vksj ls f'kdk;r dh xbZ Fkh \

4. The returned candidate filed her reply, denied the allegation by stating that the ballot papers were shown to the agents of Respondent No.5 and the witnesses also contended the same statement regarding showing of the ballot papers to the Agents of loosing candidate. These averments were not contradicted. The SDO after adducing the evidence of both the parties observed that Smt. Ambalika Kashyap who had filed election petition contended that ballot papers were not shown to her agents during the scrutiny and the seal and thumb impression were present on the ballots whereas the returned candidate Smt. Ishwari Kashyap contended that after showing the ballot papers to all the agents, the bundles were prepared, as such, the SDO had arrived at a finding that there were inconsistencies in the evidence of both the parties and in order to test the veracity of ballots, recounting would be necessary and accordingly order was passed on 30.09.2021 for recounting of the ballot papers (Annexure P-2). Against such order, an appeal was filed before the Additional Collector, Bilaspur (R-2) on the ground that secrecy of ballot papers cannot be made open, however, by interim order dated 21.10.2020 (Annexure P-1), the said appeal was dismissed. Therefore, both the orders of Additional Collector and the SDO are under challenge.

5. Shri Rajeev Shrivastava, learned Senior Counsel appearing for the petitioner assisted by Mr. Mirza Hafeez Baig and Ms. Sonam Shukla, Advocates would submit that the election petition filed by respondent no.5 Smt. Ambalika Kashyap under Section 122 of the C.G. Panchayat Raj Adhiniyam 1993 was not maintainable