IMPORTANT POINT
The court emphasized the importance of adhering to the specific invalidity criteria for ballots as outlined in the election rules, reinforcing the Presiding Officer's authority in determining vote validity.

ORDER :

Vivek Rusia, J.

The petitioner has filed the present petition challenging the order dated 27-9-2022 whereby respondent No. 7 has been declared Upsarpanch by drawing a lot.

Facts of the case in short are as under :

2. The petitioner and respondent No. 7 are two elected panch Gram Panchayat Atar Sambha, Tehsil Pati, District Barwani held in the year 2022. In the said election, 20 Panch were declared elected thereafter, Upsarpanch was notified by appointing respondent No. 6 as Presiding Officer for conducting the election.

3. In compliance of the order dated 26-7-2022 the respondent No. 6 called a meeting of all the Panch for the election of Sarpanch on 26-7-2022. The present petition and respondent No. 7 contested for the post of Upsarpanch by submitting a nomination paper. All the Panch casted their votes thereafter, the counting was started under Sub-Rule (6) of Rule 16 of M.P. Panchayat (Upsarpanch President and Vice President) Nirvachan Niyam, 1995 (for short “Nirvachan Niyam, 1995”). After the counting of the vote, one vote was rejected, 9 votes were found in favour of respondent No. 7 and 10 votes were found in favour of present petitioner and thereafter, certificate under Rule 17 was issued by electing the petitioner to the post of Gram Panchayat Atar Sambha.

4. The Sarpanch and 10 Panch submitted a joint representation to the Commissioner that the Upsarpanch has been wrongly declared elected, he is not of his choice thereafter, an election petition was filed, summons was issued to the petitioner, he appeared and submitted a reply. The Prescribed Authority called the ballots and counted in presence of petitioner and respondent No. 7. In one vote which was counted in favour of the petitioner, the complete mark of round seal was not embossed, therefore, the same has also been rejected, which has resulted in a tie between petitioner and respondent No. 7. Since both of them secured 9 – 9 votes hence, two slips were prepared and kept in the empty box and a women was called to elect by way of draw, luckily respondent No. 7 has won and accordingly she has been declared elected as Upsarpanch. Hence, this petition before this Court.

5. After notice, only Election Commission has filed the reply. All the respondents have agreed that all the votes be called before this Court for examination by this Court and the sole issue involved in this petition be decided.

6. Today, Government Advocate has produced all 20 votes before this Court. So far as the rejection of one vote by the Returning Officer is concerned, for which the petitioner has no objection. The only one vote which has been rejected by the Prescribed Authority is the vote in which a spot of blue ink is embossed in front of the name of the petitioner. As per opinion of the Prescribed Authority, mark by a seal of round arrow is not there, therefore, the said vote is liable to be rejected which has resulted in 9 – 9 vote in favour of the petitioner and respondent No. 7.

7. Learned counsel for the petitioner submits that the reasons for rejection of ballot paper for declaring invalid are provided in Sub-Rule 6(ii) of Rule 16 of Nirvachan Niyam, 1995 which says that a ballot paper shall be invalid only on 5 reasons which are mentioned i.e. ‘a’ to ‘e’ and none of the reasons are available in this case to reject the vote casted in favour of the petitioner.

8. The Rule 16 of Nirvachan Niyam, 1995 provides the manner of recording votes, counting of votes and declaration of result. Rule 16 is reproduced below :

16. Manner of recording votes, counting of votes and declaration of result.— (1) The Presiding Officer shall provide ballot box for the election of these seats. Such ballot box shall be of such design that the ballot paper can be inserted there in but cannot be withdrawn therefrom without the box being unlocked and the seal being broken.

(2) The Presiding Officer shall immediately before the voting starts show the empty box to such members as may be present in the meeting so that th