The main legal point established is that a challenge to a re-polling order, without challenging the election of the candidate, is not maintainable in a writ petition, and the remedy lies in filing an election petition.

Ms. Vandana Kasrekar, J.

1. The petitioner has filed the present writ petition praying for the following reliefs :

"(i). That, the petitioner prays that the Hon'ble Court may kindly issue a writ of certiorari to declare null and void the fresh poll of booth no.74 of Gram Panchayat, Chhatarplur in the interest of justice.

(ii). That, the petitioner prays that the Hon'ble Court may kindly issue a writ of mandamus to direct respondents to declare elected to petitioner as Sarpanch, in the interest of justice.

(iii) That, the Hon'ble Court may kindly issue any other writ or direction in the interest of justice as the Court deems fit."

2. The petitioner is a candidate for the post of Sarpanch of Gram Panchayat, Chhatarpur. There were total nine candidates who had contested the election. The polling was to be held on 13th January and the counting was started from 8.00 p.m. on the same day and the result was declared at about 9.00 p.m. Accordingly, the election was held and result was declared in which the petitioner was declared elected by four votes. After declaration of the result, supporter and agents of defeated candidate Lalita Yadav started disruption and with support of respondent No.5 ransacked the ballot box of Booth No.74. Respondent No.5 has also lodged FIR of the said incident in Police Station Panagar. Returning Officer thereafter made a report regarding said incident to the State Election Commission. The State Election Commission vide order dated 14/01/2015 has directed to conduct repoll on 15/01/2015. The said order was communicated to the petitioner on 14/01/2015 through Panchayat Secretary at 9.00 pm so that the petitioner could not prepare for re-polling. Subsequently, on 15/01/2015, re-polling was held and in the said re-polling, the petitioner got 165 votes and respondent No.6 got 307 votes. On the basis of the said poling, respondent No.6 declared elected. Being aggrieved by this, the petitioner has filed the present writ petition.

3. Learned senior counsel for the petitioner argued that the State Election Commission (respondent No.3) has erred in issuing direction for re-polling for the post of Sarpanch only when the ballots of the post of Panchas were also ransacked. He further submitted that as per Rule 72 of M.P. Panchayat Nirvanchan Niyam, 1995 re-polling can be ordered only where ballot papers accidentally or intentionally destroyed or lost or is damaged or tampered with to such an extent that the result of the poll at that polling station cannot be ascertained. But, in the present case, result was already ascertained and the true copy of the result sheet has already been provided to the candidates. In such circumstances, the present case does not fall within the provisions of Rule 72 of the Panchayat Nirvanchan Niyam. He further submitted that if the provisions of Rule 77 of the Panchayat Nirvanchan Niyam has already been complied with, then the provisions of Rule 72 would not be applicable. He relied upon the judgment passed by the Apex Court in the case of Ambika Prasad Dubey v. Distt. Magistrate, Allahabad & others, reported in AIR 1991 SC 1106, in which the Apex Court has held that fresh poll held after declaration of result is liable to be set aside.

4. Respondent No.3 has filed reply and raised preliminary objection that in the present case, the election of Gram Panchayat, Chhatarpur, Janpad Panchayat, Panagar, Distt. Jabalpur has already been concluded and the result has already been declared. In such circumstances, it is submitted that any dispute with regard to the election of the Gram Panchayat will now be categorized as an election dispute as it tantamount to challenging the election of returned candidate or candidates, therefore, the present writ petition is not maintainable and the petitioner has a remedy of filing an election petition under Section 122 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. So far as merit of the case is concerned, respondent No.3 has submitted that the e