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Madhya Pradesh High Court · body

2006 DIGILAW 658 (MP)

Andarsingh v. Harisingh

2006-05-05

N.K.MODY

body2006
ORDER 1. Being aggrieved by the order dated 5.12.2005 passed by SDO, Garoth, District Mandsaur in Case No. 10/C-144/2004-2005, whereby the election petition filed by respondent No.1 under section 122 of M.P Panchayat Raj Evam Gram Swaraj Adhiniyam 1993 (which shall be referred hereinafter as "Act") was allowed and the election of the petitioner on the post of Sarpanch of Gram Panchayat Barodiya, Tahsil Bhanpura, District Mandsaur, was set aside, the present petition has been filed. 2. Short facts of the case are that petitioner and respondent No. 1 to 3 were contesting candidates for the post of Sarpanch, Gram Panchayat Barodiya. Elections were held or 16.1.2005 and the result was declared or 27.1.2005, whereby petitioner was declared as elected sarpanch. 3. Aggrieved by the election of the petitioner, election petition was filed by the respondent No.1 under section 122 of the Act, wherein the election of the petitioner was challenged. The said election petition was contested by the petitioner. After filing of the reply and after hearing the evidence of both the parties, vide order dated 5.12.2005, SDO, Garoth, District Mandsaur, passed an order holding that looking to the margin of votes, it appears that there can be a mistake in counting, hence, directed for recounting. In compliance of the order dated 5.12.2005, recounting took place on 30.12.2005, wherein it was found that respondent No.1 secured one vote more than petitioner, and was declared as Sarpanch. Being aggrieved by the order dated 30.12.2005, the present petition was filed by the petitioner on 5.1.2006 and vide interim order dated 9.1.2006, passed by this Court the operation of the order dated 30.12.2005 was stayed. 4. Learned for the petitioner submits that without recording any evidence and also without framing any issues, the learned Court below directed for recounting of votes. Learned counsel submits that no election petition can be decided without framing of the issues. Reliance was placed on a decision of the apex Court in the matter of Makhan Lal Bangal v. Manas Bhunia and others, reported in (2001) 2 SCC 652 , wherein the apex Court has observed as under: "An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14, CPC dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend." 5. Learned counsel submits that following the law laid down by the Hon'ble apex Court, this Court also in the matter of Kalka Prasad v. Ramjilal and others, reported in 2002 (2) Vidhi Bhasvar 322 = 2002 (3) MPLJ 121 , has held that framing of issues and recording of evidence are necessary for proper adjudication in election petition. 6. Shri R.R. Bhatnagar, learned counsel for respondent No.1, submits that the order of recounting was passed by the learned Court below on 5.12.2005 and recounting took place on 30.12.2005. It is submitted that no efforts were made by the petitioner for challenging the order dated 5.12.2005, while petitioner was having enough time to challenge the same. It is submitted that since the order dated 5.12.2005 was not challenged by the petitioner at the proper time and recounting took place in 30.12.2005, in which petitioner lost election by one vote, therefore, this Court cannot close/shut its eyes. It is submitted that since the order dated 5.12.2005 was not challenged by the petitioner at the proper time and recounting took place in 30.12.2005, in which petitioner lost election by one vote, therefore, this Court cannot close/shut its eyes. For this contention reliance was placed on a decision of apex Court in the case of T.A. Ahammed Kabeer v. A.A. Azeez, reported in AIR 2003 SC 2271 , wherein the Hon 'ble apex Court has observed that "Once a recount has been allowed, the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to." 7. From perusal of the facts of the case, it is evident that in the case of T.A. Ahammed Kabeer (supra) the Hon'ble apex Court has observed that "A recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots, the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court". In this case also the order of recount took place after recording of the evidence. 8. In case of WP No. 616/2005 [Shankar Singh v. lshwarlal and others] vide order dated 9.5.2005, this Court, after placing reliance on various decisions of the apex Court, has held that "Secrecy of ballots is important. Recounting has not to be ordered until and unless case for recount is established satisfactorily by adducing evidence." 9. Even if the order dated 5.12.2005 was not challenged by the petitioner before 30.12.2005 before the recounting actually took place, it cannot be said that petitioner has lost his right to challenge the said order. In view of the aforesaid, the orders dated 5.12.2005 and 30.12.2005 cannot be allowed to sustain and are hereby quashed. 10. Even if the order dated 5.12.2005 was not challenged by the petitioner before 30.12.2005 before the recounting actually took place, it cannot be said that petitioner has lost his right to challenge the said order. In view of the aforesaid, the orders dated 5.12.2005 and 30.12.2005 cannot be allowed to sustain and are hereby quashed. 10. At this stage, learned counsel for the respondent No. 1 submits that after the recounting which took place on 30.12.2005, the charge of Sarpanch was given to respondent No.1 and this fact was not brought by the petitioner to the notice of this Court while granting of ex-parte stay on 9.1.2006. 11. Learned counsel for the petitioner disputes the aforesaid status and submits that the petitioner is in charge of the office of Sarpanch. Apart from this, it is submitted that since the case has been remitted for fresh hearing, therefore the petitioner is entitled to 'assume the charge of the post of Sarpanch. For this contention, reliance has been placed by the petitioner on a decision reported in the matter Rekha Bai v. State ofM.P. and others [2005 (II) MPJR SN 13], wherein this Court while remanding the case has directed that "petitioner shall reap all the benefits and shall assume charge". 12. In this facts and circumstances of the case it is further directed that the learned Court below shall dispose of the petition within a period of six months, till then the petitioner shall hold the post. 13. With the aforesaid observations, the petition stands disposed of. No order as to costs.