Savitribai Lodhi vs State Election Commissioner And Others

Rohit Arya, J

The appellant/petitioner, a candidate for the post of Sarpanch, Gram Panchayat Kutwara, District Shivpuri has felt aggrieved with the counting of votes. He has approached the Writ Court for a direction of recounting at Polling Station No.123 and 124 of Village Panchayat Kutwara, Badarwas, District Shivpuri Madhya Pradesh in presence of the petitioner and also that the certificate be issued only after recounting of both polling stations, i.e. 123 and 124 of village Panchayat Kutwara, Badarwas, District Shivpuri, Madhya Pradesh, to the candidate who win the election.

The Writ Court by a detailed order has rejected the Writ Petition. In the said order, relying upon the decisions of the Hon'ble Supreme Court in the case of R.Narayanan Vs. S.Semmalai and others reported in (1980) 2 SCC 537, Vadivelu Vs. Sundaram and others reported in (2000) 8 SCC 355 and Bhabhi Vs. Sheo Govind and Others reported in (1976) 1 SCC 687 with relevant paragraphs quoted thereunder, learned Writ Court has concluded that recounting of votes essentially involves question of facts, which obviously are in the realm of adjudication by trial. Such recourse can not be taken in exercise of writ jurisdiction under Article 226 of the Constitution of India. The direction for recounting under Rule 18 of the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 (hereinafter shall be referred to as 'Rules of 1999') can not be given in such circumstances. Consequently, Writ Petition has been dismissed.

Shri Nitin Goyal, 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.