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2003 DIGILAW 940 (MP)

Mubarak Master v. Hansraj

2003-08-04

S.K.PANDE

body2003
Judgment ( 1. ) THIS is a revision under Section 26 of the M. P. Municipalities Act, 1961 (hereinafter referred to as "the Act" for convenience) against the order dated 10-5-2001, passed by Second ADJ, Shahdol in Election Case No. 3/2000. ( 2. ) APPLICANT Mubarak Master, non-applicant Hansraj and others were contestants in the election for President of Nagar Palika Parishad, Dhanpuri. Applicant Mubarak Master has been declared successful by a margin of 58 votes against the non-applicant Hansraj. Non-applicant Hansraj filed petition under Section 20 of the Act before the Additional District Judge, Shahdol seeking relief of recounting of votes and to quash the election of the returned candidate applicant Mubarak Master with further prayer to declare himself as elected for the post of President. The petition was presented on 27-1-2000 and after the evidence of non-applicant was closed, the application under Section 151, CPC was filed for recounting of votes. Vide impugned order dated 10-5-2001, the application was allowed with a direction to the Returning Officer, Collector, Shahdol to conduct recounting of votes and submit result in scaled cover. ( 3. ) WITH reference to judgments Ramrali v. Saroj Devi and Ors. , reported in (1997) 6 SCC 66 , Shri Satya Narayan Dudhani v. Uday Kumar Singh and Ors. , AIR 1963 SC 367, it has been contended that tinkering of secrecy of ballot papers must have not been permitted lightly. Recounting should be ordered in rare cases and that too on giving satisfactory ground. Per contra, the contention is that there was a manipulation of 160 votes in the counting, therefore, with reference to decision Baladevi Dixit v. Saroj Devi, 1997 (2) MPLJ-Note 12, recounting has rightly been ordered by the Tribunal. ( 4. ) BESIDES the rival contention of the parties aforesaid, it has been contended that against the impugned order dated 10-5-2001 directing recounting of votes revision does not lie. Learned Counsel for the applicant has referred to the reliefs claimed by non-applicant in petition (Annexure A-7) and stated that relief of recounting has been prayed in the petition (Annexure A-7), therefore, the order impugned directing recounting of votes must be treated as final order. Recounting of votes can not be a final relief under Section 24 of the Act. Learned Counsel for the applicant has referred to the reliefs claimed by non-applicant in petition (Annexure A-7) and stated that relief of recounting has been prayed in the petition (Annexure A-7), therefore, the order impugned directing recounting of votes must be treated as final order. Recounting of votes can not be a final relief under Section 24 of the Act. In petition (Annexure A-7) seeking relief of recounting of votes, it has been prayed that election of the returned candidates/applicant be quashed and the non-applicant/hansraj be declared as an elected. Therefore, the main relief of declaration flows from the request of recounting. Final order means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the right of the parties with regard to or any other matter in controversy in the suit. Therefore, the order impugned directing recounting of votes, can not be termed as a final order. It is an interlocutory order allowing application under Section 151, CPC for recounting in furtherance of seeking declaration as prayed in petition (Annexure A-7 ). ( 5. ) SECTION 23 of the Act provides procedure to be followed in disposal of election petition. An election petition shall be enquired into and disposed of according to such summary procedure as may be prescribed by rules made under the Act. Section 26 of the Act is to the effect that no appeal shall lie against the decision of the Judge on the petition. However, any person aggrieved by the decision of the Judge on the petition, with thirty days from the date of such decision, apply to the High Court for revision on any of the ground enumerated. Thus, as against the decision on the petition alone, the revision would lie under Section 26. M. P. Municipalities (Election Petition) Rules, 1962 were framed to regulate the proceedings of election petition. Rule 19 is as under :- "19. Revision.-- (1) No petition by way of revision shall lie against any interlocutory order passed by the Judge. " ( 6. ) NO petition by way of revision shall lie against any interlocutory order passed by Judge. The impugned order dated 10-5-2001 being an interlocutory order in the main petition under Section 20 of the Act, revision would not lie. ( 7. ) CONSEQUENTLY, revision fails and is dismissed. No order as to cost.