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2006 Supreme(MP) 1055
HIGH COURT OF MADHYA PRADESH
K.K. LAHOTI, J.
Kuwarlal Gond
v.
Sub-Divisional Officer, Jabalpur and others
Writ Petition No. 7708 of 2006 (Jabalpur);
Decided on : 12.9.2006.
V.K. Laharia for petitioner;
Rahul Jain, Government Advocate for respondents No.1, 5 and 6;
M.S. Bhatti for respondent No.2.
Headnote:Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 -- R. 21 – M.P. Panchayat Nirvachan Niyam, 1995 -- Rr. 80 (1) and 81 -- election petitioner secured higher votes -- votes polled in favour of election petitioner shown in the result to be polled in favour of writ petitioner -- election petitioner declared defeated -- chance to apply for recount before Returning Officer not given -- allegations of Returning Officer taking bribe not refuted -- order of recount is proper and justified. 2002 (2) Vidhi Bhasvar 300 (SC) discussed wherein (2004) 6 SCC 331, 2005 (3) JLJ 48 and 1997 (2) Vidhi Bhasvar 195 (SC) overruled. [Para 8]
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1. This petition is directed against order Annexure P-1 dated 22.5.2006, passed by the Prescribed Authority-cum-Sub-Divisional Officer, Jabalpur in Election Petition No. 4/A-89/21/2004-05 between parties. By the .3 impugned order, the Election Tribunal directed recounting of the votes in respect of election of Sarpanch, Gram Panchayat Padwar, District Jabalpur. This order has been assailed by the petitioner on following grounds :
(i) That, the order directing recounting of the votes is illegal and without jurisdiction. There is no foundation in the case in respect of necessity of recounting of votes.
(ii) That, the pleadings and evidence in the matter are totally vague, insufficient and the tribunal erred in directing recounting. The tribunal has emphasized in the order, while allowing the prayer of the respondent Sunderlal for recounting, on the aspect that the Presiding Officer on booth No. 151, of which recounting has been directed, has not controverted the averments of the petition. But on this ground recounting cannot be directed as the petitioner, who is a returned candidate, opposed the prayer.
(iii) That, no application was filed by the respondent Sunderlal for recounting immediately after counting was completed and in absence of which, the Election Tribunal ought not to have allowed recounting.
(iv) Reliance is placed to the apex Court judgment in Chandrika Prasad Yadav v. State of Bihar [(2004) 6 SCC 331] and Single Bench judgment of this Court in Ramrati v. SDO Sidhi [2005 (3) JLJ 48 = 2005 (3) MPLJ 101] and submitted that the impugned order be quashed.
2. Learned counsel appearing for respondent Sunderlal supported the order and submitted:
(i) That, this petition is based on incorrect facts. The dispute is in respect of the votes polled in favour of respondent Sunderlal. In fact after the counting at polling booth No. 151, it was declared that election petitioner Sunderlal got 214 votes while petitioner Kuwarlal Gond got 92 votes, but subsequently on 27.1.2005 when the result was declared, it revealed that the result was changed and at polling booth No. 151, in place of Sunderlal, it was declared that Kuwarlal got 214 votes and respondent Sunderlal got 92. This manipulation was made by Kuwarlal with the help of Presiding Officer at booth No. 151. Overwhelming evidence has been produced in this regard to prove the contention of respondent Sunderlal, which convinced and satisfied the Election Tribunal and the recounting has been rightly directed.
(ii) That, there was no occasion to respondent Sunderlal to file an application for recounting. For the first time on 27.1.2005, he became aware in respect of this manipulation. On the date of counting, petitioner Kuwarlal was sitting with the Returning Officer at polling booth No. 151 and some transaction of money took place but the result of that transaction came out only on 27.1.2005, when the result was declared. In these circumstances, there was no question of filing any application for recounting. The entire election has been affected by the manipulation. There was a vast difference of votes between respondent Sunderlal and petitioner Kuwarlal and in fact by manipulation, petitioner Kuwarlal managed to change the result in his favour. From the recounting, truth would be revealed.
Stating aforesaid, it is submitted that the impugned order does not suffer from any jurisdictional error and needs no interference of this Court.
3. Before appreciating the rival contentions of the parties, it is necessary to look into the facts of the present case;
(A) Petitioner, respondent Sunderlal and two others were rival contestants for the office of Sarpanch, Gram Panchayat, Padwar. The polling took place on 16.1.2005. Petitioner was allotted election symbol hand-pump, respondent Sunderlal was allotted election symbol of goggles, Pannalal was allotted glass tumbler and Purushottam was allotted tree with coconut. There were three polling booths, namely, booth No. 150-High School, booth No.
