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2015 DIGILAW 460 (MP)

Girija Bai v. State of M. P.

2015-04-22

SUJOY PAUL

body2015
ORDER 1. Parties were heard on the question of maintainability/availability of alternative remedy. 2. Shri Sanjay Sharma, learned counsel for the petitioner, submits that the petitioner has challenged the election of respondent No.10, Sarpanch of Gram Panchayat, Tilakala. It is contended that the stand of respondent is that she has been declared as Sarpanch by Annexure R-1 on 17.1.2015. The Returning Officer is not competent to declare her as elected. Hence, in the eyes of law there is no legal election/notification in favour of respondent No.10. Thus, election petition under section 121 of Panchayat Raj Evam Gram Swaraj Adhiniyam is not maintainable. In support of his contention, he relied on rule 90 of M.P. Panchayat Nirvachan Niyam, 1995 (Niyam). By taking assistance from Form 26A, it is contended that the Returning Officer was not competent to issue the said notification, nor he was authorized by the Election Commission. 3. Per contra, Shri R.D.Jain, learned senior counsel relied on rule 81 of the said Niyam and supported the order. 4. I have heard the learned counsel for the parties and perused the record. 5. Rule 90 makes it clear that the Commission shall notify or cause to be notified every election of a Panch and Sarpanch of a Gram Panchayat. Rule 81(1)(b) of said Niyam provides that Returning Officer shall prepare return of election in prescribed manner. In the present case, argument of learned counsel for the petitioner is that notification in Annexure R-1 could have been issued only by the election commission. 6. In view of words employed in rule 90, in my view, the Commission can got it notified through its officers. There is no pleading in the petition that Returning Officer was not authorized by the Commission to undertake the aforesaid exercise. Petitioner has not chosen to file any rejoinder to the return filed by the respondent No.8. 7. This Court in 1996 MPLJ 134 (Sugnabai v. Election Officer, Gram Panchayat and others), opined that rule 81(1)(b) is clear on the point that so far declaration of result of a Sarpanch is concerned, it is to be made by Returning officer. At the cost of repetition, petitioner has not pleaded that Returning Officer was not authorized to issue Annexure R-1. 8. The contention of Commission is that Annexure R-1 is issued by the competent authority. At the cost of repetition, petitioner has not pleaded that Returning Officer was not authorized to issue Annexure R-1. 8. The contention of Commission is that Annexure R-1 is issued by the competent authority. The petitioner has not pleaded that the Returning Officer was not competent or was not authorized to issue Annexure R-1. The wording of rule 90 shows that the Commission itself can issue such notification or may get it issued through their officers. Thus, I find no illegality in the order Annexure R-1. Accordingly, I am unable to hold that election of respondent No.10 has not been notified till date. This is settled in law that if officer who has issued the order is competent but the order is not in prescribed form, no interference can be made on such hyper technical ground. 9. In this view of the matter, I find no reason to interfere in the matter. The petitioner has an efficacious, alternative remedy under section 122 of the Adhiniyam. She may avail the same. Petition is disposed of by reserving liberty aforesaid. ...................