Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 1098 (MP)

Gab Singh v. Jorawar Singh

2003-09-17

A.M.SAPRE

body2003
JUDGMENT By filing this writ, the winning candidate has questioned the legality and validity of an order, dated 30.4.2002 passed by competent authority under the Panchayat Act while deciding the election petition No.1/C-144/99-2000 filed by the respondent. By impugned order, the competent authority has directed recounting of votes polled. It is not in dispute that petitioner has won the election of Sarpanch by one vote as against the respondent who was one of the candidate in the fray alongwith others. This led to filing of the election petition by the respondent (as defeated candidate) against the petitioner under section 122 of the Panchayat Raj Adhiniyam before the competent authority. One of the ground and indeed main ground of challenge in the election petition was manipulation/malpractice resorted in casting votes and also in its counting. It is this issue though denied by the petitioner on facts, was gone into on evidence led by the parties. By impugned order, the learned competent authority has come to a conclusion that a case of recount is made out. Accordingly, a direction to recount is issued. It is this direction which is impugned in the writ by the winning candidate. Heard Shri C.L. Yadav, learned counsel for the petitioner and Shri A.K. Sethi, learned counsel for the respondent. Learned counsel for the petitioner in substance contended that in the light of law laid down by the Supreme Court in the case reported in AIR 1993 SC 367 , AIR 1989 SC 648 and AIR 2003 SC 304 , no case of recount on facts is made out. It was his submission that when the finding are recorded in his favour by the competent authority then in such eventuality, there was no occasion for him to direct recount. In effect, therefore, the submission was that no case for recount having been made out, the impugned order be set aside. In reply, learned counsel for the respondent contended that in the first instance no writ lies under Article 227 of the Constitution of India, against an interim order. In effect, therefore, the submission was that no case for recount having been made out, the impugned order be set aside. In reply, learned counsel for the respondent contended that in the first instance no writ lies under Article 227 of the Constitution of India, against an interim order. In the second place, he contended that as on date, only an interim order is passed directing recount and hence, in the event of the eventual decision going against the petitioner finally, he can always question the legality of the impugned order and lastly learned counsel contended that even if this Court were to go into the legality of the impugned order on facts then also no case for interference is made out. According to learned counsel, the very fact that the difference in vote i.e. margin of vote for declaring the petitioner to have won the election was by one (1), and secondly, as many as 66 votes polled by voters were found invalid, clearly makes out a case for recount. Learned counsel further maintained that if the impugned order which is quite a reasoned one is read in its proper perspective, then one can easily draw a conclusion that direction to recount was aptly made out. Having heard learned counsel for the parties and having perused record of the case, I am inclined to accept the first submission of the respondent when he urged that this Court should decline to go into the question at this stage. Indeed, I find force in that submission. The issue whether a case of recount is made out or not and whether if given effect to, the same results eventually against either can always be examined at a later stage. Though, I am inclined to hold that prima facie, the order appears to be justified. However, my this expression would not bar the petitioner to agitate the issue against the final order, if it goes against the petitioner. Indeed, this Court would be able to examine the issue more appropriately after the final order is passed. Accordingly, the petition is dismissed but with aforesaid observations and liberty. As a consequence all interim orders stand vacated. The competent authority is directed to proceed with the trial and pass final orders within a month. C.C. within a week.