UNION OF INDIA vs VIJAY KUMAR FRANCIS

The petitioner has filed the present petition challenging the order dated 23.02.2015 passed by respondent No. 2.

The State Government has issued a notification for election on the post of Sarpanch of Gram Panchayat Khamha for the year 2015. The petitioner as well as the respondents have contested the said election. The Gram Panchayat Khamha was divided in 20 wards and the election of 19 wards was uncontested and only ward No. 19 was in contest for which there were 2 candidates for the office of Panch of that ward. The election for the office of Sarpanch was contested election and 17 candidates have submitted their nomination form including the petitioner and respondents No. 6 to 21. The Gram Panchayat Khamha comprised of 3 Villages namely Khamha, Bhatgawan (Dhondhi) and Magarwar. The polling was done on 22.02.2015. At polling station No. 56 (Magarwar) votes were casted for election on the post of Sarpanch. After completion of the voting the ballot boxes were opened and after scrutiny and rejection of ballot papers, the ballot papers which were not rejected were counted and entries in the result sheet for Sarpanch at Polling Station No. 54 (Khamha) and Polling Station No. 55 (Bhatgawan) and for Sarpanch and Panch of Ward No. 19 at Polling Station No. 56 (Magarwar) were made and copies of result sheets of election of Sarpanch were provided to the petitioner. From perusal of the result sheets, it is apparently clear that the petitioner has acquired 112 votes at Polling Station No. 54, 64 votes in Polling Station No. 55, 223 votes in Polling Station No. 56 and acquired 399 votes in total and stood first in position. Whereas, the respondent No. 6 acquired 73 votes at Polling Station No. 54, 78 votes at Polling Station No. 55 and 236 votes at Polling Station No.56 and acquired 387 votes in total and stood second in position.

Finding himself to be defeated in the election, respondent No. 6 with his 15 to 20 followers broke open the door of the room of Polling Station No.56 in which the polling officer and other officers assisting him and other agents of the candidates were present have assaulted them and took some ballot papers and empty ballot boxes and ran away. Under these circumstances, the polling officer respondent No. 5 lodged an first information report in respect of the incident at Police Station Kotar, District Satna. After this incident, respondent No. 4 did not proceed to prepare return of election to the office of Sarpanch and to declare the petitioner elected who received the largest numbers of valid votes and respondent No. 3 did not grant certificate of election to the petitioner as (returned candidate) but on the very next day i.e. on 23.02.2015, the petitioner learnt from the News Paper dated 23.02.2015 published in the Nav Bharat News Paper that respondent No. 3 is proceeding for fresh polling of Polling Station No. 56 and respondent No. 2 vide order dated 23.02.2015 directed the respondent No. 3 for taking a fresh poll at Magarwar polling station and to notify the day and hour mentioned therein. After getting the said knowledge of repolling at Polling Station No. 56, the petitioner has submitted his written objection to respondent No. 3 on 23.02.2015. Thereafter, on 24.02.2015 re-polling was done in Polling Station No. 56 and in the said election, the petitioner has received 230 votes and respondent No. 6 has received 298 votes at Polling Station No. 56 and he was declared as a returned candidate. Being aggrieved by the order of re-polling dated 23.02.2015, the petitioner has filed the present petition.

Learned senior counsel appearing on behalf of the petitioner argues that the order of re-polling is illegal and contrary to law. He submits that none of the ingredient is existed in the present case for declaring the re-polling. He submits that the polling of the polling station was completed, ballot papers were counted and result sheet was prepared by the polling officer and on the basis of result sheet prepared under Rule 77 in Form 17, respondent No. 3 ought to have prepared the return of election to the office of Sarpanch in Form No. 21 and ought to have declared the petitioner as a returned candidate who have received the largest numbers of ballot votes. He submits that the order of re-polling was passed by respondent No. 3 by non application of mind and it was passed on undue pressure of the local member of parliament of District Satna.

On the other hand, respondent No. 2 to 4 had filed their return and stated that the order of re-polling was passed after booth capturing and disruption in the electoral process at ward No. 19. As per the order of re-poll, the fresh poll was conducted on 24.02.2015 between 07:00 am to 03:00 pm. The order of re-poll was passed in accordance with law after receiving detailed report from the District Election Officer, Satna in this regard. The respondents had further submitted that the order of re-poll was passed by respondent No. 2 as a conscious decision after receiving detailed report from the District Election Officer, Satna regarding disruption in electoral process and about the incident of booth capturing. The order passed by respondent No. 2 was strictly in accordance with law as per rules 72 of the M.P. Panchayat Nirvachan Niyam, 1995. It has further been submitted that the present writ petition is not maintainable and instead of filing the present writ petition, the petitioner should have pursued the remedy under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 which provides for filing of election petition in case of election disputes. He further submits that the present controversy falls under he category of election dispute. He further submits that in the present case the re-polling was already done and respondent No. 6 is declared as a returned candidate and, therefore, now the petitioner has a remedy only to file the election petition.

Learned counsel for the respondents relied on the judgement passed by this Court in the case of Sugnabai w/o Hariram Vs. Election Officer, Gram Panchayat Bamni Bujurga, Tah. Kannod, Dewas and others, 1996 MPLJ 134.

I have heard learned counsel for the parties and perused the record as well as the order passed by the respondents. From perusal of the record it reveals that a notification was issued by the State Government for election on the post of Sarpanch, Gram Panchayat Khamha in the year 2015. The petitioner as well as respondent No. 6 has contested the said election. At Polling Station No.54, the petitioner has received 112 votes, 64 votes at Polling Station No.55 and 223 votes at Polling Station No. 56 and thus he received total 399 votes and was placed at Sr. No. 1. Whereas, the respondent No. 6 has received 73 votes at Polling Station No. 54, 78 votes at Polling Station No.55 and 236 votes at Polling Station No.56 and acquired total 387 votes and placed at Sr. No. 2. Thereafter, some disputes has been made and some of the persons at Polling Station No. 56 in which polling officer and other officers were assisting him they were assaulted by these persons and took away some ballot papers and empty ballot box by these persons. The polling officer, therefore, lodged an first information report in respect of the incident at Police Station Kotar of District Satna. Thereafter, the District Election Officer given a detailed report of the said incident to respondent No. 2. After receiving the said report, respondent No. 2 has taken conscious decision for repolling.

Learned senior counsel appearing on behalf of the petitioner argues that respondent No. 4 should have proceed to declare the petitioner as a elected candidate as he has received the largest number of ballot votes. The polling officer has prepared the result sheets, however, the certificate declaring the petitioner as a elected candidate was not issued by the Tehsildar and, therefore, unless and until the certificate is issued by the Tehsildar, the petitioner cannot be declared as a returned candidate. The Rule 72 of the Madhya Pradesh Nirvachan Niyam 1995 provides for fresh polling. The said rules reads as under:- "72. Fresh poll in case of destruction, tempering etc. of ballot boxes or due to procedural irregularity.- (1) If at any election-

(a) any ballot box used at a polling station is unlawfully taken out of the custody of the Presiding Officer or the Returning Officer, or is 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, or

(b) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station. The Returning Officer shall forthwith report the matter to the Commission through the District Election Officer.

(2) The Commission shall on receipt of a report under sub-rule (1) and after taking all material circumstances into account, either-

(a) declare the poll at the polling station to be void, appoint a day and fix the hours, for taking a fresh poll at that polling station and direct the District Election Officer to notify the day so appointed and the hours so fixed in such manner as it may deem fit, or

(b) if satisfied that the result of a fresh poll at that polling station will not, in any way affect the result of the election or that the error or irregularity in procedure is not material, issue such directions to the District Election Officer as it may deem proper for the further conduct and completion of the election.

(3) In every case covered by clause (a) of sub-rule (2), the District Election Officer shall proceed to conduct the fresh poll, in accordance with the directions of the Commission and the provisions of this chapter shall apply to such fresh poll.

As per Rule 72(a) if any ballot box used at a polling station is unlawfully taken out of the custody of the presiding officer or the returning officer or is 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 then the District Election Officer can issue a direction for fresh election.

In the present case the ballot box has been taken out of the custody of the presiding officer, therefore, the presiding officer has made a report to respondent No. 2 and on the basis of the report submitted by the presiding officer, the respondent No. 2 has passed an order of repolling. Thus, respondent No. 2 has not committed any illegality in passing the order of re-polling.

In the present case, after the re-polling, the election has already been held and respondent No. 6 has been declared as a returned candidate, therefore, after declaration of the result, the petitioner has only a remedy of filing an election petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. This Court in the case of Sugnabai w/o Hariram (supra) in para 6, 7 and 9 has held as under:- 6. Section 122 of the M. P. Panchayat Raj Adhiniyam, 1993 provides as under:-

Section 122. Election Petition : (1) An election or co-option under this Act shall be called in question only by a petition presented in the prescribed manner.

(i) in case of Gram Panchayat to the Sub-Divisional Officer (Revenue);

(ii) in case of Janpad Panchayat to the Collector; and

(iii) in case of Zilla Panchayat to the Divisional Commissioner and not otherwise.

(2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election or co-option in question was notified.

Reading of the aforesaid provision makes it clear that the election petition is the remedy contemplated after the result is notified. Rule 91 of the Election Rules 1994 reads as follows :

Manner of notifying election and co-option : (1) Every election and co-option of Panch, Sarpanch and Up-sarpanch of Gram Panchayat, and Up-sarpanch of a Gram Panchayat, as the case may be, shall be notified by the prescribed authority in Form 33 by affixing a notice on the notice board in its office and in the office of the Gram Panchayat and Janpad Panchayat concerned.

(2) Every election and co-option of member, president and Vice President of Janpad Panchayat as the case may be, shall be published by the prescribed authority in Form 34 by affixing a notice on the notice board of his office and in the office of the Janpad Panchayat and Zila Panchayat concerned.

(3) Every Election and co-option of President, Vice President and Member of a Zilla Panchayat as the case may be, shall be published in Form 15 by the prescribed authority by affixing on notice board of his office and the office of Zila Panchayat, a copy of such notice shall be sent for publication in the Madhya Pradesh Gazette for General information.

The petitioner has no where averred that his election was ever notified as contemplated under Rule 91 of the Election Rules but has stated that on 8-5-1984 her election was declared under Rule 77 of the Election Rules. Rule 77 of the rules reads as follows :

Declaration of Results. - (1) The Returning Officer (Panchayat) or the Assistant Returning Officer (Panchayat) shall :

(a) declare to be elected the candidate for the post of panch who have secured the largest number of valid votes and certify the return of election in Form 23.

(b) the result sheet for the office of Sarpanch, member of Janpad Panchayat and Zila Panchayat shall be sent to the Returning Officer (Panchayat) or such authorised officer shall compile all the result sheets regarding Sarpanchas of Gram Panchayat within the block in Form 24 and declare the candidate who secured largest number of valid votes for a particular Gram Panchayat elected and shall certify the return of election in Form 24.

(c) for the election of member of Janpad Panchayat compile all the result sheets of Form 21 and prepare Form 25 and declare the candidate who received the largest number of valid votes elected and shall certify the return of election in Form 26.

(2) The Returning Officer (Panchayat) or the officers authorised by him shall send the signed copy of the returns under this rule to the District Officer (Panchayat) and to the commission.

Reading of Rule 77(1) of the Election Rules makes it explicit that so far as declaration of result of Panch is concerned it has to be done by Returning Officer (Panchayat) or the Assistant Returning Officer (Panchayat) whereas election of Sarpanch under Rule 91 of the Election Rules has to be notified by the Prescribed Authority. The Prescribed Authority according to the petitioner is Tahsildar. Further under Rule 77(l)(b) of the Election Rules, the Returning Officer (Panchayat) or the Assistant Returning Officer (Panchayat) are only authorised to declare the result of panch and not of the Sarpanch and they are required only to send the result sheet to the Returning Officer who after compilation of the result sheet, is required to declare result of the election in Form 24. It is not averred that petitioner was ever declared as such. However, I find on record Form 24 signed by the Returning Officer (Ann. R. 13) which shows that petitioner Sugnabai has got 324 votes whereas respondent No. 4 Smt. Parsadibai has got 399 votes. Moreover, the respondents have placed on record notification, as contemplated under Rule 91 of the Election Rules by which respondent No. 4 was notified as elected ''Sarpanch'' of the Gram Panchayat. Rule 91 of the Election Rules contemplates notification by the prescribed authority and the petitioner has not produced any document nor I find in the records any notification contemplated under the said rules and issued by the prescribed authority in her favour. However, the notification of election of respondent No. 4 as provided under Rule 91 was issued in her favour by the S. D. O. cum prescribed authorities.

Section 122(1) of the Act contemplates challenge of election only by election petition and as such the writ petitioner is not entitled to get any relief in the present petition.

In the present case after declaration of the result, the certificate has not been issued in form No. 24 by the Tehsildar, thus, unless and until a certificate is issued by the Tehsildar it cannot be said that the process of election has been completed. Therefore, in such circumstances, respondent No. 2 has not committed any error in issuing the order of re-polling.

Thus, in light of the aforesaid observations as well as in light of the judgement passed in the case of Sugnabai w/o Hariram (supra), the present writ petition is not maintainable, however, the petitioner is at liberty to file an election petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993.

With the aforesaid observations, the writ petition stands disposed of with no order as to costs.