--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 11540 / 2010 BALRAM KUMAWAT Vs. THE RETURNING OFFICER, UJJAIN & SEVEN OTHERS * * * * * O R D E R ( 20/9/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 27/8/2010 passed by the Election Tribunal in Election Petition No. 02/ A-89 (21) / 2009 – 2010. The contention of the petitioner is that he has participated in an election for the post of Sarpanch in respect of Gram Panchayat Sipawra, Tehsil Ghatia, Distt. Ujjain and respondent No.2 – Sanjay was declared as an elected candidate. Petitioner has further stated that an election petition was preferred u/S. 122 of the MP Panchayat Raj Evem Gram Swaraj Adhiniyam, 1993 and issues were framed by the election Tribunal. Petitioner has drawn the --- 2 --- attention of this court towards the issues framed by the Election Tribunal and there is a specific issue ie., Issue No. C for recount of votes in respect of Polling Booth No. 18. The further contention of the petitioner is that applications were preferred after counting was over in respect of Polling Booth No. 18 and 19 on 21/1/10 (Annexure P/10 and P/11) and both the applications were received by the Returning Officer. Her contention is that her applications were not entertained by the Returning officer and a specific issue was framed by the Election Tribunal in the Election Petition preferred by the present petitioner, however, the election tribunal in a most mechanical manner has dismissed the election petition without deciding the issues framed by the Tribunal by holding that the applications of the petitioner for recount were considered by the Returning Officer. Learned counsel for the petitioner has drawn the attention of this court towards last paragraph of the order passed by the election Tribunal dt. 27/8/10 wherein it has been admitted by the Tribunal that objections were preferred in the matter of counting of votes and a request was also made for --- 3 --- recounting of votes. The election Tribunal has observed that the objections were considered by the Returning Officer. The contention of the petitioner is that there is no material on record which establishes that the objections were considered at any point of time and without deciding the issues on merits, the election petition has been dismissed mechanically. Learned counsel appearing for the respondent No.2 has vehemently argued before this court that the election Tribunal has rightly dismissed the election petition and the objections preferred by the petitioner were considered by the Returning Officer. He has also argued before this court that the applications preferred by the petitioner as contained in Annexure P/10 and P/11 dt. 21/1/10 were considered by the Returning Officer and the election Tribunal has rightly passed the impugned order. He has prayed for dismissal of the writ petition. Learned Government Advocate has argued before this court that the election Tribunal has decided the election petition keeping in view the provisions of the Panchayats --- 4 --- (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 and the petitioner has submitted his applications in respect of recount only after the counting was over and the applications were received by the Returning Officer at 8:20 pm and therefore the question of allowing the petition does not arise. Heard learned counsel for the parties at length and perused the record. In the present case, it is not disputed by the respondent State or by the private respondent that two applications were preferred by the present petitioner before the Returning Officer (Annexure P/ 10 and P/11) for recount of votes. Section 80 of the MP Panchayats Nirvachan Niyam, 1995 reads as under : 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 other 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 --- 5 --- 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. (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 envelopes to the Returning Officer for compliation 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 --- 6 --- sheet. There is no document on record to establish that the returning officer has considered the applications preferred by the present petitioner (election petitioner). Not only this, the Election Tribunal except for observing that it is reflected that the applications of the petitioner were considered, has not referred to any evidence. (ifjyf{kr gksrk gS). A specific issue was framed by the Election Tribunal in respect of Booth No.18 and in respect of recount. However, the same has not been dealt with by the Election Tribunal by taking into account the evidence adduced during the trial of the election petition. This Court is of the considered opinion that the matter deserves to be remanded back to the election Tribunal to decide the issues framed by the Election Tribunal by taking into account the evidence recorded during the trial of the election petition. The election Tribunal after appreciating the evidence and after arriving at a categoric finding in respect of the issues shall answer the issues as framed in the Election petition and shall pass a reasoned order in the matter. --- 7 --- Resultantly, the writ petition is allowed. Impugned order dt. 27/8/2010 is accordingly quashed. Petitioner as well as respondents are directed to appear before the Election Tribunal on 28/9/2011. The election Tribunal shall decide the election petition in accordance with law as expeditiously as possible, preferably within a period of 3 months from the date of receipt of certified copy of this order. With the aforesaid, this petition stands disposed of. No order as to costs. (S. C. SHARMA) J U D G E KR