Sanjay Maliwal vs Kavita Thakur
- Court
- Madhya Pradesh High Court
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
Writ Petition No. 39309 of 2025
SANJAY MALIWAL
Vs
KAVITA THAKUR AND OTHERS
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Appearance:
Shri Vishal Baheti - Senior Advocate along with Shri Abhinav
Dhanodkar - Counsel for the petitioner.
Shri Veer Kumar Jain - Senior Advocate along with Shri Gagan
Bajad- Counsel for the respondents.
Ms. Drishti Rawal alongwith Ms.Anushka Bhargava – Government
Advocate for the respondent/State.
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Reserved on : 07/09/2026
Delivered on : 17/09/2026
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ORDER
1/ Present petition has been preferred by the petitioner under
Article 226 of the Constitution of India seeking following reliefs :
That, an appropriate writ may kindly be issued in order to quash
I)
order dated 18.09.2025 in case bearing No. 1/31-89(21)/2023-24
passed by respondent no. 5.
II) That, an appropriate writ may kindly be issued in order to quash
Letter dated 23.09.2025 issued by the respondent no.6 in the light of
order dated 18.09.2025 in case bearing no. 1/31-89(21)/2023-24
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passed by respondent no. 5.
III) That, entire record of case bearing no. 1/31-89(21)/2023-24
pending before respondent no. 5 may kindly be called.
IV) That, the other relief which is just and proper in the facts and
circumstances of the case may also be L granted doing justice
including cost
2/ Fact of the case in brief is that on 06.07.2022, the election
was conducted for the post of Sarpanch of Gram Panchayat Sodpur at
polling booth nos. 151, 152, and 153, Block Development Nalchha,
Tehsil Pithampur, District Dhar (MP) On 14.07.2022, the election
result was announced and the petitioner was elected as Sarpanch. On
28.07.2022, respondent no. 1, another contesting candidate in election,
filed Writ Petition No. 17618/2022 before this Hon'ble Court seeking
recounting of votes. On 16.08.2022 the said Writ Petition was
dismissed while granting liberty to the respondent no. 1 to avail
appropriate remedies On 07.09.2022, respondent no. 1 filed election
petition under section 122 of MP Panchayat Raj Avam Swaraj
Adhiniyam 1993. On 17.04.2023, the said election petition was
allowed by respondent no. 5/SDO by directing recounting of votes.
Against the direction of recount of votes, the petitioner filed Writ
Petition No. 10290/2023 which was allowed vide order dated
21/09/2023 by setting aside the order passed by the S.D.O directing
recounting of votes and remanded matter to Election Tribunal to
decide the election petition after granting opportunity of hearing to
petitioner. Despite affording several opportunities to produce the
witnesses, the petitioner failed to do so, therefore, vide order dated
26/07/2024, the Election Tribunal closed the petitioner's right to lead
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evidence. Thereafter, the petitioner filed W.P. no. 29611/2024
challenging the closure order and vide order dated 11/02/2025, this
Court again remanded the matter with strict, time bound directions to
complete the evidence. Vide impugned order dated 18.09.2025,
respondent no. 5 / S/D/O/ again directed recounting of votes even
though election petition is still pending. On 23.09.2025, respondent
no. 6 issued letter fixing date for recounting of votes to execute the
process pursuant to the order dated 18/09/2025. Hence, present petition
has been preferred before this Court for setting aside the impugned
order.
3/ Learned counsel for the petitioner has submitted that the
impugned order directing recounting of votes amounts to grant of final
relief even when the election petition is pending. Nothing has been
brought on record by the respondents to indicate the necessity to
recount the votes. It is settled law that interim relief in the nature of
final relief cannot be granted during pendency of the petition.
Irreparable loss and grave prejudice shall be caused to the petitioner if
the respondents are allowed to recount the votes, even though the
election petition is pending. He has further submitted that the election
petition filed by the petitioner is without any pleading to the effect that
there is any material discrepancy in counting of ballots which
necessitates a recount. In absence of any clear and precise pleading and
averment that the ballots were not counted in accordance with
procedure, a mere difference in 01 vote is not enough to order recount
of votes. It is settled law that recount cannot be ordered merely to
remove suspicion and recount cannot be ordered to conduct a
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roving/fishing inquiry. Secrecy of ballot is sacrosanct and unless
affected candidate is able to allege and substantiate recounting of
votes, no order of recounting can be passed. In this regard, he has
placed reliance upon the judgment / order passed in the case of Bhabhi
v. Sheo Govind reported in (1976) 1 SCC 687 and Vidhyawati Lilhare
v. SDO reported in 2010 (1) MPLJ 115) . He has further submitted that
before a recount is to be ordered, a recount has to be justified and
material irregularity committed in conduct of election has to be shown
In this regard, he has placed reliance upon teh judgment delivered in
the case of PKK Shamsudeen v. KAM Mappillai Mohindeen reported
in (1989) 1SCC 526. By placing reliance upon the judgment delivered
in the case of Bahoran Lal v. Ganesh Prasad AIR 1999 MP 07), he
has submitted that before recount is ordered, election petitioner must
plead and prima-facie establish errors/irregularity in recounting. By
referring to the judgment delivered in the case of Vadivelu v.
Sundaram (2000) 8 SCC 355 , he has further submitted that recounting
is an exceptional remedy and cannot be ordered in a routine manner, in
absence of material irregularity and effect on election. Lastly, he has
submitted that recounting of votes cannot be ordered merely on basis
of narrow margin on general allegation of irregularity. The affected
candidate must specifically plead all material facts constituting the
alleged irregularity and must prima-facie establish the same through
cogent evidence. In absence of such material pleadings and evidence,
no direction of recounting can be given In this regard, he has placed
reliance upon the judgment delivered in the case of Kattinokkula
Murali Krishna v. Veeramalla Koteswara Rao & Ors. (2010) 1 SCC
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466. He has further submitted that considering the fact that the
respondent no. 1 has failed to plead material irregularity and in absence
of any compelling circumstance that may justify recount, there is no
basis for the respondent authorities to have passed the impugned orders
dated 18.09.2025 and 23.09.2025 directing recounting of votes.
Further, the impugned orders are mechanical orders passed without
giving any adequate reasons and hence, on ground of arbitrariness and
principles of natural justice also, the impugned orders cannot be
sustained in law and requires to be set aside.
4/ Per-contra, learned counsel for respondent no. 1 has
opposed the prayer made by the petitioner by submitting that the
petitioner himself admitted in his cross-examination that he was
stationed outside the polling station throughout the counting and had
no personal knowledge of internal proceedings. Having proved the
material irregularities by cogent evidence against an admitted absence
of defense, Respondent No. 1 has established an absolute,
incontrovertible entitlement to a recount and consequently
substantiates her claim to be declared the duly elected Sarpanch.
Learned counsel has further submitted that present petition is not
maintainable under Article 226/227 of the Constitution of India as the
substantive prayer in the election petition includes the consequential
declaration of respondent No. 1 as the duly elected candidate upon
verification. The impugned order dated 18.09.2025 merely directs the
physical recounting/verification of the ballots as a procedural fact-
finding step. He further submitted that the order under challenge does
not finally dispose of the election petition, nor does it finally declare
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the final result. A writ petition challenging a purely interlocutory, fact-
finding order aimed at facilitating the final consequential relief is
premature and not maintainable. He has further submitted that in
election disputes involving a razor-thin margin of 1 single vote (758 vs.
757) contrasted against 84 rejected ballots (84 times the victory
margin), an inspection and physical recount is the sole reliable and
legally recognized mechanism available to determine whether the
proven allegations of improper rejection/acceptance are
mathematically true. Where a concrete prima facie case and
evidentiary proof are already placed on record, ordering a recount is
not a "fishing or roving inquiry”, but the only indispensable judicial
tool to protect the purity of democratic elections and ascertain the true
will of the electorate. Learned counsel has further submitted that
respondent No. I immediately objected during the physical count on
08.07.2022 and formally tendered her application for a recount on
11.07.2022 strictly in accordance with prescribed statutory procedure
at the earliest available opportunity. The election authorities
erroneously and illegally dismissed the recount application on
11.07.2022 under the false pretext that the results had already been
declared, whereas the official statutory declaration of results (Form 21)
and ballot paper accounts (Form 17) were actually prepared, executed,
and declared only on 14.07.2022. The application could not have been
dismissed on account of a declaration of results prior to 14.07.2022,
thereby vitiating the initial rejection and mandating judicial correction
through the impugned order. Learned counsel has further submitted
that the Petitioner has systematically abused the writ jurisdiction of this
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Hon'ble Court-securing remands on 21.09.2023 (W.P. No. 10290/2023)
and 11.02.2025 (W.P. No. 29611/2024) under the guise of procedural
fairness, only to intentionally default (seeking 11 adjournments) before
the trial court. He further submitted that having compelled a 38-page
exhaustive speaking order under strict High Court timelines, the
petitioner cannot invoke extraordinary equitable writ jurisdiction to
perpetually stay the recount and illegitimately cling to public office.
Under the above circumstances, learned counsel prays that present
petition deserves to be dismissed.
5/ Learned counsel for the State / respondent nos. 5 and 6 has
submitted that the impugned order dated 18.09.2025 is a final order
passed in the election petition instituted under Section 122 of the
Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam,
1993. However, the. petitioner has misconstrued the said order and has
projected the same as an interlocutory order before this Hon'ble Court.
A perusal of the impugned order shows that the election petition filed
by. respondent No.1 / Sint. Kavita Thakur has been allowed and
findings have been recorded on the issues involved in the matter, It is
further submitted that once respondent No.5 arrived:at a finding that
there were irregulatities in the counting process, it became necessary to
direct recounting of votes, so that the actual result of the election
could be determined in accordance with law. The direction for
recounting is only a consequential direction flowing from the findings
recorded in the election petition and forms part of the final adjudication
of the dispute. It is further stated that in an election petition seeking
declaration of result as void and direction for recounting of votes and
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for re-issuance of results, the primary action involves the quashing of
the initially declared result and a direction to physically recount of
votes, so that consequential results could be reissued. Accordingly,
there appears to be no flaw in the impugned order passed by
Respondent No.5 and in consequence to allowing the election petition,
the imperative order of recounting of votes is passed by the respondent
No. 5, however the petitioner has miss-interpreted the order and has
furnished incorrect facts vide the present writ petition before the
Hon'ble Court, which is liable to be set aside. It is further. pertinent to
mention that after passing of the order dated 18.09.2025, the concerned
Authorities proceeded with the consequential action of counting of
votes, however, the petitioner being aggrieved by the order dated
18.09.2025 filed present writ petition, wherein, the Hon'ble Court vide
order dated 27.09.2025 in the present writ petition permitted the
authorities to proceed with the recounting process, however directed
that the final result of recounting shall not be declared and the same
shall be kept in a sealed cover for production before this Hon'ble Court.
It is further submitted that in compliance .of the. aforesaid order,
recounting of votes was carried out and-the result thereof was kept in
a.sealed cover along, with the relevant record and produced before this
Hon'ble Court. The sealed. cover was subsequently opened before this
Hon'ble Count However, the petitioner objected to acceptance of the
recounting result and insisted that the present writ petition be heard on
merits. The relevant record is available with the respondent authorities.
It is prayed that in view of the aforesaid facts and circumstances, the
present writ petition is devoid .of merit and is based on a complete
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misreading of the order dated 18.09.2025 passed by respondent No.5.
The said order has been passed after affording full opportunity to both
parties to lead evidence and address arguments and does not suffer
from any illegality warranting interference under Article 226 of the
Constitution. of. India. It is further submitted that in view of the
aforesaid factual aspects of the case, the petitioner is not entitled for
the relief as claimed in the petition and therefore, the present petition is
sans merit and deserves to be dismissed.
6/ I have considered the submissions made by the parties at
the bar and also considered the judgments cited by both the parties as
also perused the records.
7/ On perusal of the material available on the record and also
considering the submissions made at the bar, it transpires that the
dispute is essentially regarding the election conducted on 08/07/2022
for the post of Sarpanch at three different polling booths ie. 151, 152
and 153 in the Gram Panchayat Sodpur, Block Development Nalchha,
Tehsil Pithampur, District Dhar. It also transpires that the election
result was declared and there is mere difference of one vote and
recounting is sought for by the unsuccessful candidate. It also
transpires that during pendency of the proceeding, the Court has
permitted recounting of the votes and is required to be kept in sealed
cover, which is available with the Court in sealed cover and the Court
has also perused that sealed cover, which clearly indicates the result of
recounting accordingly. In this background, it is relevant to refer to the
various provisions and the judgments cited by the respective counsel in
the present petition.
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8/ Counsel for the petitioner has cited following judgments,
which read as under :
i) Bhabhi v. Sheo Govind reported in (1976) 1 SCC 687 and
Vidhyawati Lilhare v. SDO reported in 2010 (1) MPLJ
115) .
ii) PKK Shamsudeen v. KAM Mappillai Mohindeen
reported in (1989) 1SCC 526.
iii) Bahoran Lal v. Ganesh Prasad AIR 1999 MP 07)
iv) Vadivelu v. Sundaram (2000) 8 SCC 355 ,
v) Kattinokkula Murali Krishna v. Veeramalla Koteswara
Rao & Ors. (2010) 1 SCC 466.
9/ Counsel for the respondents have also cited the judgments,
which reads as under :
i) Sohan Lal Vs. Babu Gandhi [ (2003)1 SCC108] Relevant
Para nos. 1 to 7, 9 and 14
“ 1. Leave granted.
2) T hese Appeals are against the judgment dated 27th March,
2001. Briefly stated the facts are as follows:-
On 20th January, 2000 the election for the post of Sarpanch, Gram
Panchayat, Ringnodiya, Indore was held. After the counting of the
votes, the Appellant was orally informed that he had won the elections.
However when the result was officially declared, Respondent No. 1
was shown to have won. The Returning Officer then issued a
certificate showing that Respondent no. 1 had won.
3) The Appellant, therefore, filed an election petition before the
Sub-Divisional Officer. Respondent no. 1 evaded services. By an ex-
parte Order the Sub-Divisional Officer directed recounting of ballot
papers. On such recounting it was found that in respect of booth no.
151 the votes polled in favour of the Appellant had been erroneously
shown as having been polled in favour of Respondent No. 4. On a
recounting of the votes it was found that the Appellant had won. The
Sub-Divisional Officer, therefore, corrected the mistake by Order dated
3rd February, 2000 and declared the Appellant to have won the
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election.
4) Against the order of the Sub-Divisional Officer, Respondent
No. 1 filed a Writ Petition in the High Court. On 23rd February, 2000
the High Court disposed of the Writ Petition by remanding the matter
back to Sub-Divisional Officer. The Sub-Divisional Officer thereafter
heard all parties and again passed an order to recount. On a second
recount it was again found that the votes polled in favour of the
Appellant had been erroneously shown as having been polled in favour
of Respondent No. 4. Thus the Sub-Divisional Officer again corrected
the results and declared the Appellant as having won the elections.
5) The 1st Respondent again filed a Writ Petition before the High
Court. This Writ Petition has been allowed by the Impugned Judgment.
In the Impugned Judgment, the High Court has followed a decision of
this Court in the case of Smt. Ram Rati Vs. Saroj Devi and Ors.
reported in AIR 1997 Supreme Court 3072. In this decision it has been
held that unless a party first applies to the Returning Officer for
recounting of votes it is not open to the Tribunal or the Court to direct
recounting. It was held that an application for recounting in writing to
the Returning Officer was an essential pre-condition.
6) Based on this authority, the High Court set aside the order of
the Sub-Divisional Officer solely on the ground that the Appellant had
not applied to the Returning Officer for recounting. The High Court
did not decide any other points raised in the Writ Petition.
7) When these Appeals came up before a bench of two Judges of
this Court they had reservation about the principle laid down in Ram
Rati 's case. This matter was, therefore, directed to be placed before a
three Judge Bench. It has accordingly been placed before us.
9) Rule 80 reads as follows:-
"80. Recount of votes.- (1) After an announcement has been made by
the Returning Officer or such other officer authorised by him, of the
total number of votes polled by each candidate under sub-rule (2) of
rule 77, a candidate or, in his absence, his election agent or his
counting agent may apply in writing to the Returning Officer or such
officer authorised by him, for a recount of all or any of the votes
already counted, stating the grounds on which he demands such
recount.
(2) On such an application being made the Returning Officer or such
other officer authorised by him shall decide the matter and may allow
the application in whole or in part or may reject it in toto if it appears
to him to be frivolous or unreasonable.
(3) Every decision of the Returning Officer or such other officer
authorised by him, under sub-rule (2) shall be in writing and contain
the reasons therefor.
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(4) If the Returning Officer or such other officer authorised by him,
decides under sub-rule (2) to allow an application either in whole or in
part, he shall-
(a) count the ballot papers again in accordance with his decision;
(b) amend the result sheet to the extent necessary after such recount;
and
(c) announce the amendment so made by him.
(5) After the total number of votes polled by each candidate has been
announced under sub-rule (2) of rule 77 or sub-rule (4) the Returning
Officer or such other officer authorised by him shall complete and sign
the result sheet and no application for a recount shall be entertained
thereafter;
Provided that no step under this sub-rule shall be taken on the
completion of the counting until the candidates and election agents
present at the completion thereof have been given a reasonable
opportunity to exercise the right conferred by sub-rule (1).
6. The counted ballot papers shall be bundled and kept in the manner
mentioned in sub-rule (3) of rule 77.
7. Result sheets in Form 16, 17, 18 and 19 for Panch, Sarpanch,
Member of Janpad Panchayat and Member of Zila Panchayat
respectively, prepared by such other officers as are authorised by the
Returning Officer, shall be submitted by them, in separate envelops to
the Returning Officer for compilation and tabulation of votes polled by
each candidate.
8. The Returning Officer on receipt of result sheets under sub-rule (7)
shall enter of cause to be entered the total number of votes polled by
each candidate contesting for a seat of Sarpanch, Member of Janpad
Panchayat or Member of Zila Panchayat at each polling station of the
concerned constituency in subsequent part or parts of Form 17, 18 and
19 respectively and complete and sign the result sheet."
14) In view of Section 122 and the rules, we are unable to agree
with the ratio laid down in Ram Rati 's case. It is not correct to hold
that, in an election petition, after the declaration of the result, the Court
or Tribunal cannot direct recounting of votes unless the party has first
applied in writing for recounting of votes. There is no prohibition in
the Act or under the rules prohibiting the Court or Tribunal to direct a
recounting of the votes. Even otherwise a party may not know that the
recounting is necessary till after result is declared. At this stage, it
would not be possible for him to apply for recounting to the Returning
Officer. His only remedy would be to file an Election Petition under
Section 122. In such a case, the Court or the Tribunal is bound to
consider the plea and where case is made out, it may direct recount
depending upon the evidence led by the parties. In the present case,
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there was obvious error in declaring the result. We, therefore, hold that
the ratio laid down in Ram Rati 's case is not correct.
ii) Dharmin Bai Kashyap Vs. Babli Sahu and others
[ (2023) 10 SCC 461] Relevant para nos. 7, 11, 12, 15
7) It is pertinent to mention that the State Government has also
framed the Rules of 1995, under the said Act of 1993. Rule 5 of the
said Rules of 1995 pertains to the “Contents of the petition” and Rule 6
pertains to the “Relief that may be claimed by the petitioner”, which
read as under: -
“5. Contents of the petition. – An election petition shall
(a) contain a concise statement of all material facts on which the
petitioner relies;
(b) set forth with sufficient particulars, the grounds on which the
election is called in question;
(c) be signed by the petitioner and verified in the manner laid down
in the Code of Civil Procedure , 1908 (V of 1908), for the
verifications of pleadings.
“6. Relief that may be claimed by the petitioner. - A petitioner may
claim-
(a) a declaration that the election of all or any of the returned
candidates is void; and
(b) in addition, thereto, a further declaration that he himself or any
other candidate has been duly elected.”
11) At the outset, it may be noted that a three judge bench of this
Court in Sohan Lal vs. Babu Gandhi and others (supra) dealing with
the (2003) 1 SCC 108 provisions contained in M.P. Panchayat Raj
Evam Gram Swaraj Adhiniyam, 1993, similar to the provisions
contained in the Chhattisgarh Act, 1993, did not agree with the earlier
decision in Ram Rati vs. Saroj Devi and Others2 and held, inter alia,
that there was no prohibition in the Act or under the rules prohibiting
the Court or Tribunal to direct re-counting of the votes.
12) There cannot be any disagreement with the ratio laid down in
the afore-stated case of Sohan Lal, which has stated that till the result
is declared, it may not be possible for the party to apply for re-counting
(1997) 6 SCC 66 of votes to the Returning Officer, and his only
remedy would be to file Election Petition, and that in such a case, a
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Court or the Tribunal is bound to consider the plea and where a case is
made out, it may direct re-counting depending upon the evidence laid
down by the parties. However, in the instant case the question involved
is whether the election petition could be filed seeking the prayer only
for re- counting of votes, without seeking any reliefs as contemplated
in Rule 6 of the said Rules of 1995.
15) It is true that as laid down in Sohan Lal’s case, the Court or
Tribunal may direct re- counting of votes in the Election Petition,
depending upon the evidence laid down by the parties in the Election
Petition, nonetheless the Election Petition seeking the relief for re-
counting of votes only, without seeking any other reliefs i.e.,
declarations as contemplated in Rule 6, would not be tenable in the eye
of law. The main reliefs that may be claimed in the Election Petition
have to be the reliefs as envisaged in Rule 6 of the said Rules of 1995.
ii) Raj Kumari Vs. Asha Devi and others [ 2025 SCC
Online SC3271] Relevant para no. 6.
5) Be that as it may, the High Court allowed the writ petition on
the ground that the first order passed by the Prescribed Authority was
for re-counting and was in the nature of a final order and once a final
order has been passed, the Prescribed Authority becomes ‘functus
officio’ and it had no authority to pass any other order and, therefore,
the second order based on which the re-counting was done and the
appellant had been declared elected, has been set aside.
6) We totally disagree with the reasoning given by the learned
Single Judge of the High Court, for the simple reason that the first
order was in the nature of an interim order, which was only for re-
counting and it also fixed a date for re-counting i.e. 09.03.2024 and
ordered that the results should be apprised to the Prescribed Authority,
which we have already indicated above. The final order was passed on
21.03.2024.
iii) Sonu Amit Sharma Vs. Bhagwati Sharma [ 2024 SCC
Online MP 8452] Relevant para nos. 15 to 20.
15) So far as the contention of Counsel for the Petitioner that no
application was given for recounting is concerned, the Supreme Court
in the case of Sohan Lal Vs. Babu Gandhi and others reported in
(2003) 1 SCC 108 has held as under :
14. In view of Section 122 and the Rules, we are unable to agree with
the ratio laid down in Ram Rati case. It is not correct to hold that, in an
election petition, after the declaration of the result, the court or tribunal
cannot direct re-counting of votes unless the party has first applied in
writing for re-counting of votes. There is no prohibition in the Act or
under the Rules prohibiting the court or tribunal to direct a re-counting
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of the votes. Even otherwise, a party may not know that there-
counting is necessary till after the result is declared. At this stage, it
would not be possible for him to apply for re-counting to the Returning
Officer. His only remedy would be to file an election petition under
Section 122. In such a case, the court or the tribunal is bound to
consider the plea and where a case is made out, it may direct re-count
depending upon the evidence led by the parties. In the present case,
there was obvious error in declaring the result. We, therefore, hold that
the ratio laid down in Ram Rati case is not correct.
16. It is next contended by Counsel for appellant, that Supreme Court
in the case of Dharmin Bai Kashyap Vs. Babli Sahu and others
reported in (2023) 10 SCC 461 has held that if an application for
recount is not given, then recounting cannot be directed.
17. Considered the submissions made by Counsel for Appellant.
18. In the case of Dharmin Bai Kashyap (Supra) the Supreme Court
has made it clear that since, the prayer in the election petition was only
for recount and relief(s) as contemplated in Rule 6 of Chhatisgarh
Panchayats (Election Petitions, Corrupt Practices and Disqualification
for Membership) Rules, 1995, were not made, therefore, the election
petition was rightly dismissed by Division Bench of Chhatisgarh High
Court. Furthermore, the law laid down by Three Judges Bench of
Supreme Court in the case of Sohan Lal (Supra) was relied upon in the
case of Dharmin Bai Kashyap (Supra). In para 11 and 12 of Dharmin
Bai Kashyap (Supra), Supreme Court has held as under :
11. At the outset, it may be noted that a three-Judge Bench of this
Court in Sohan Lal v. Babu Gandhi dealing with the provisions
contained in M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam,
1993, similar to the provisions contained in the Chhattisgarh Act,
1993, did not agree with the earlier decision in Ram Rati v. Saroj
Devi and held, inter alia, that there was no prohibition in the Act or
under the rules prohibiting the court or tribunal to direct re-
counting of the votes. The precise observations made in para 14 are
reproduced as under : ( Sohan Lal case, SCC pp. 111-12)
"14. In view of Section 122 and the Rules, we are unable to
agree with the ratio laid down in Ram Rati case. It is not correct
to hold that, in an election petition, after the declaration of the
result, the court or tribunal cannot direct re-counting of votes
unless the party has first applied in writing for re-counting of
votes. There is no prohibition in the Act or under the Rules
prohibiting the court or tribunal to direct a re-counting of the
votes. Even otherwise, a party may not know that the re-
counting is necessary till after the result is declared. At this
stage, it would not be possible for him to apply for re-counting
to the Returning Officer. His only remedy would be to file an
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election petition under Section 122. In such a case, the court or
the tribunal is bound to consider the plea and where a case is
made out, it may direct re-count depending upon the evidence
led by the parties. In the present case, there was obvious error
in declaring the result. We, therefore, hold that the ratio laid
down in Ram Rati case is not correct."
12. There cannot be any disagreement with the ratio laid down in
the aforestated case of Sohan Lal, which has stated that till the
result is declared, it may not be possible for the party to apply for
re-counting of votes to the Returning Officer, and his only remedy
would be to file election petition, and that in such a case, a court or
the tribunal is bound to consider the plea and where a case is made
out, it may direct re-counting depending upon the evidence laid
down by the parties. However, in the instant case the question
involved is whether the election petition could be filed seeking the
prayer only for re-counting of votes, without seeking any reliefs as
contemplated in Rule 6 of the said 1995 Rules.
19. Considering the totality of facts and circumstances of the case, this
Court is of considered opinion, that the Learned Single Judge did not
commit any mistake by upholding the order of recount passed by the
Specified Officer.
20. Accordingly, the appeal fails and is hereby dismissed.
10/ Now, for the sake of reference, Section 122 of the
Adhniyam, 1993 is reproduced as under :
“ 122. Election petition.
(1) An election [x x x] [Omitted by M.P. Act No. 26 of 1994
(w.e.f. 30-5-1994).] under this Act shall be called in question only by a
petition presented in the prescribed manner :-
(i) in case of [Panchayat or Gram Sabha] [Substituted by M.P.
Act No. 3 of 2001 (w.e.f. 26-1-2001).] to the Sub-Divisional
Officer (Revenue); (ii) in case of Janpad Panchayat to the
Collector; and
(iii) in case of Zila 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 [x x x] [Omitted
by M.P. Act No. 26 of 1994 (w.e.f. 30-5-1994).] in question was
notified.
(3) Such petition shall be enquired into or disposed of according
to such procedures as may be prescribed.”
11/ Considering the section 122 of the Adhiniyam 1993 and
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also considering the fact that the impugned order dated 18/09/2025,
which is passed in election petition instituted under section 122 of the
Adhiniyam, 1993 and such order is challenged by the petitioner by
considering that it is an interlocutory order. Perusal of the impugned
order clearly indicates that the election petition filed by respondent no.
1 / Kavita Thakur has been allowed and the findings have been
recorded on the issues involved in the matter and also reveals that once
respondent No.5 clearly arrived at conclusion that there were
irregularities in the counting process, it become necessary to direct
recounting of votes, so that the actual result of the election could be
determined in accordance with law, therefore, such direction cannot be
considered as not in accordance with, but should be considered in
accordance with law and consequential to the finding given in the
election petiton. Moreover, considering the fact that the petitioner
himself admitted in his cross-examination that he was stationed outside
the polling station throughout the counting and had no personal
knowledge of internal proceedings and having proved the material
irregularities by cogent evidence against an admitted absence of
defense and on the material available on record, it transpires that
respondent No. 1 has established an absolute, incontrovertible
entitlement to recount and consequently substantiates her claim to be
declared the duly elected Sarpanch. It is also relevant to note that the
order under challenge in the present petition does not finally dispose of
the election petition, nor does it finally declare the final result and
therefore, the present petition is prima-facie not maintainable under
Article 226 of the Constitution of India. It is also relevant to note that
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when the election dispute is involving a razor-thin margin of one single
vote coupled with the fact that 84 ballots rejected, in that
circumstances, an inspection and physical recount is the only reliable
and legally recognized mechanism available to determine, whether the
proven allegations of improper rejection/acceptance are
mathematically true. From the earlier proceedings also, it transpires
that the petitioner has approached this Hon'ble Court by filing various
Writ Petitions under the guise of procedural fairness and since the
impugned order is passed pursuant to the direction of this Court under
the timelines, therefore, the petitioner cannot invoke extraordinary
equitable writ jurisdiction to perpetually stay in public office. It is also
required to be noted that the petitioner has already completed the
tenure of more than four years pursuant to such election and
considering the pendency of the proceedings and now the recounting is
already completed and on perusal of the result, I am of the opinion that
present petition is required to be dismissed on that count also.
12/ There is no quarrel about ratio of the judgments cited by
both the parties. Considering the factual scenario, whereby deference
of voting of the two candidates, a razor-thin margin of one single vote
and 84 votes are declared invalid, I found that the respondent /
Authority has not committed any error in granting recounting of the
votes to verify the correctness of the counting of votes, that can be
considered in accordance with law and also in the larger interest of
justice, therefore, on any count, action of the respondent / Authority
cannot be considered arbitrary, perverse, improper or illegal, which
warrants any interference under Article 226 of the Constitution of India
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and considering the fact that the judgments, which are cited by the
respondents are helpful to the factual scenario of the present case, I
found that present petition, devoid of merit, deserves to be dismissed.
13. Accordingly, present petition is dismissed.
CC as per rules.
(SANDEEP N. BHATT)
JUDGE
amol
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