Andar Singh vs Hari Singh and Others

N.K. Mody, J.

Aggrieved by the election of the Petitioner, Election Petition was filed by the Respondent No. 1 u/s 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, Garodh, 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 secure 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.

Learned Counsel 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 Vs. Manas Bhunia and Others, .

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 Ors., reported in 2002 (3) MPLJ 121, has held that framing of issues and recording of evidence are necessary for proper adjudication in election petition.

From perusal of the facts of the case, it is evident that in the case of TA 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.

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 Order dated 5.12.2005 and 30.12.2005 cannot be allowed to sustain and is hereby quashed.

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 of Rekha Bai v. State of M.P. and Ors., 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".