The court emphasized that a writ petition can be entertained to protect the right to a fair election, even in cases where an election petition may exist as an alternate remedy.

ORDER :

Vivek Rusia, J.

Appellants have filed this writ appeal being aggrieved by the order dated 02.11.2022, whereby the Writ Court has dismissed the Writ Petition No.17927 of 2022 with a liberty to them to take recourse of appropriate remedy of election petition, if they are so advised, to ventilate their grievance.

02. The present appeal is filed solely on the ground that when the writ petition was filed, no alternate remedy was available to the writ petitioners as the election of President of Janpad Panchayat Ujjain was not notified. The election petition is liable to be filed only after notification of the election, therefore, the Writ Court ought to have decided the writ petition on the facts and circumstances prevailing at the time of filing of the writ petition. However, as a precautionary measure, the appellants have filed an election petition as the limitation to filing the election petition was going to expire. In support of his contention, learned counsel for the appellant has placed reliance on judgments passed by the Division Bench of this Court in the case of Chandra Bhan Singh V/s State of M.P. and others , 2001 (2) M.P.L.J. 419, Ghanshyam Tiwari and another V/s State of M.P. and others , ILR (2010) M.P. 1517 and Pradhuman Verma V/s State of M.P. and others , 2017 SCC OnLine MP 2305 The facts of the case in short are as follows:

03. Appellants No.1 to 10 are the elected members of Janpad Panchayat Ujjain and appellants No.11 to 13 are the representatives of the three other members of the said Panchayat as at that time they were suffering from Covid-19 and were under quarantine. The election of Janpad Panchayat was held on 25.06.2022 and certificates to that effect were issued on 14.07.2022. After the aforesaid election of Janpad Panchayat, the Presiding Officer issued an election program for conducting an election to the post of President and Vice President on 27.07.2022 under the provisions of the M.P. Up-Sarpanch (President and Vice President) Nirvachan Niyam, 1995 (hereinafter referred as “Rules, 1995”). According to appellants/writ petitioners, 3 elected members were suffering from Covid-19 disease and were unable to cast their votes, therefore, they authorized appellants No.11 to 13 to cast theirvotes. The applications to that effect were submitted before the Presiding Officer along with the Covid certificate. Similarly, 4 elected members i.e. appellants No.1 to 4 requested for the casting of votes through a companion being an illiterate. The Presiding Officer rejected all the applications that conducted the election and declared respondent No.5 as the elected candidate by securing 12 votes.

04. Immediately, the petitioner rushed to this Court by way of Writ Petition No.17927 of 2022 that the election had been illegally held. According to the appellants out of 25 members, 13 members were not permitted to cast the votes and all the 12 members casted their votes in favour of respondent No.5 and he was illegally declared as elected President of Janpad Panchayat. Even appellant No.10 who was contesting the election of President was deprived of voting, therefore, the entire election is liable to be conducted afresh.

05. Vide order dated 04.08.2022, by way of Writ Court, it was made clear that if notification under Rule 22 has not been issued till now, it should not be issued till the next date of hearing. The respondents were served and they filed the reply and interim relief was directed to continue from time to time.

06. The respondents No.1 to 3 filed the reply by submitting that the writ petition is not m