Hari Singh vs District Election Officer And Others

Rohit Arya, J

The appellant/petitioner, a candidate for the post of Sarpanch, Gram Panchayat Khadwai, Janpad Panchayat Dabra, District Gwalior has felt aggrieved with the counting of votes. He has approached the Writ Court for a direction of recounting at Polling Station No.207.

The Writ Court by a detailed order has rejected the Writ Petition. In the said order, learned Writ Court has concluded that the ground with regard to discrepancy in results was raised by the petitioner for the first time before the Writ Court, in view whereof, learned Single Judge while holding that the petitioner had an efficacious remedy of filing election petition, has dismissed the Writ Petition.

Shri Sourav Singh Tomar, learned counsel appearing for the appellant/petitioner while taking exception to the impugned order contends that since counting has not been done as per the provisions contained in Rule 18 of the Rules of 1999, the representation filed for the alleged irregularity in that behalf in all fairness ought to have been addressed by the Returning Officer. Failure thereof has given rise to invocation of writ jurisdiction under Article 226 of the Constitution of India.

Upon hearing learned counsel for the appellant/petitioner and Shri Upendra Yadav, learned counsel appearing for the respondents No.1 and 2, this Court is of the considered view that besides, constitutional amendment brought in the Constitution incorporating Section 243-O of the Constitution of India, relevent provisions whereof reads as under :-

“243-O. Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution -

(a) xxx xxx xxx

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” in the light of the substantive provisions for filing of election petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter shall be referred to as the Adhiniyam), the Writ Court under Article 226 of the Constitution of India can not countenance the contentions related to election after initiation of election process and completion thereof. All questions related to conduct of elections including acceptance/rejection of nomination papers, manner of holding of elections and counting of votes of elections, in fact and in effect, are questions in the realm of factual disputes, which can only be addressed by way of adjudication through a duly constituted election petition. Complaints of non-adherence to the provisions of the Rules framed for holding of elections in fact are intertwined with the factual disputes and no exception to the elections can be taken by the Court under Article 226 of the Constitution of India on such complaints.

Consequently, the complaint related to improper counting under Rule 18 of the Rules of 1999 in our considered opinion can not be subject matter of writ jurisdiction under Article 226 of the Constitution of India. Of course, the appellant/petitioner shall be at liberty to raise all issues available to him on facts or in law by way of election petition under Section 122 of the Adhiniyam.

As a result, Writ Appeal sans merit hereby dismissed.