1 - Vijay Singh Porte S/o Sundar Singh Porte Aged About 26 Years R/o v. 1 - State Of Chhattisgarh Through The Secretary, Department Of Panchayat And Rural Development
Case Details
1 RAVI SHANKAR MANDAVI Digitally signed by RAVI SHANKAR MANDAVI Date: 2025.04.11 20:36:04 +0530 2025:CGHC:13303 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 1406 of 2025 1 - Vijay Singh Porte S/o Sundar Singh Porte Aged About 26 Years R/o Village- Dhummatola, Tehsil- Marwahi, District- Gaurela-Pendra- Marwahi (C.G.) ... Petitioner versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Panchayat And Rural Development, Kutchery Chowk, Near Garden, Nawa Raipur, District- Raipur (C.G.) 2 - The Director Directorate Of Panchayat, Sector 19 North Block, Vikash Bhawan, Ground Floor, Nawa Raipur, Atal Nagar, District Raipur (C.G.) 3 - The Collector Gaurela, District- Gaurela-Pendra-Marwahi (C.G.) 4 - The Sub-Divisional Officer (Revenue) Marwahi, District- Gaurela- Pendra-Marwahi (C.G.) 5 - The Tehsildar/returning Officer Tehsil- Marwahi, District- Gaurela- Pendra-Marwahi (C.G.) 6 - The Cheif Executive Officer Janpad Panchayat, Marwahi, District- Gaurela-Pendra-Marwahi (C.G.) 7 - The Commissioner State Election Commission, Nirvachan Bhawan, Sector-19 North Block, Nawa Raipur, Atal Nagar District- Raipur (C.G.) 8 - Mela Singh Meshram S/o Rewa Singh Meshram Aged About 35 Years R/o House No.- 08, Village- Bahrijhorki, Tehsil- Marwahi, District- Gaurela-Pendra-Marwahi (C.G.) ... Respondent(s) (Cause-title taken from Case Information System) 2
Legal Reasoning
13. It is well settled principle of law that where a right or a liability is created by a statue, which gives a special remedy for enforcing it, the remedy provided by the statue must be availed of. It is also well settled salutary principle that if a Statue provides for doing a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. In Cherukuri Mani w/o Narendra Chowdari vs. Chief 10 Secretary, Government of Andhra Pradesh and Others, it is observed that “where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. 17. There is hardly any need to reiterate the trite position of law that when it comes to the interpretation of statutory provisions relating to election law, jurisprudence on the subject mandates strict construction of the provisions. Election contest is not an action at law or a suit in equity but purely a statutory proceeding, provision for which has to be strictly construed.” 8. Relying on the above judgments passed by the Hon'ble Supreme Court and time and again also, Hon’ble the Supreme Court as well as this Court has passed orders stating that in election matters, once the result has been declared, the application of recounting of votes cannot be entertained, the remedy lies under Section 122 of the Panchayat Raj Adhiniyam, 1993. 9. Considering the fact that alternative remedy is available to the petitioner to file an Election Petition under Section 122 of the Panchayat Raj Adhiniyam, 1993, the instant petition filed by the petitioner is found to be not maintainable and it deserves to be dismissed and is hereby dismissed as not maintainable. Sd/- (Amitendra Kishore Prasad) Judge Ravi Mandavi
Arguments
: Mr. Dhirendra Prasad Mishra, Advocate For Petitioner For State/Respondent(s) : Mr. Parveen Das, Dy. Advocate General For Respondent No.7 ; Mr. Venkatesh Pandey, Advocate Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board 20/03/2025 1. Heard Mr. Dhirendra Prasad Mishra, learned counsel petitioner. Also heard Ms. Upasana Mehta, Dy. Govt. Advocate for the State/respondent/s as well as Mr. Venkatesh Pandey, Advocate appears on behalf of Mr. R.S. Marhas, learned counsel for the respondent No.7 appears on advance copy. 2. By way of this writ petition, the petitioner has prayed for following reliefs: “10.1.That, the Hon'ble Court may kindly be pleased to call fo the entire records pertaining to this case from possession of the Court below. 10.2. That, the Hon'ble Court may kindly be pleased to direct the respondent authorities to decide the application dated 25.02.2025 for recounting of votes filed by the petitioner before the Respondent No.04 i.e., Sub-Divisional Officer (Revenue), Marwahi, District – Gaurela-Pendra-Marwahi (C.G.) which is pending till date. 10.3. That, the Hon’ble Court may kindly be pleased to direct the respondent authorities to recount the votes of the Gram Panchayat – Dhummatola, Tehsil – Marwahi, District – Gaurela-Pendra-Marwahi (C.G.) for the post of Sarpanch held on 23.02.2025. 10.4. Any other relief which this Hon'ble Court may deems fit and proper, may also be passed in favour of the petitioner.” 3. Learned counsel for the petitioner submits that the petitioner is an 3 election candidate for the post of Sarpanch and is contesting election from the Gram Panchayat Dhummatola, Tehsil Marwahi, District Gaurela-Pendra-Marwahi (C.G.) for the post of Sarpanch where his election symbol was "Sabji Ki Tokri" and on dated 23.02.2025, election of the aforesaid panchayat has been conducted and concluded. On the day of election in the counting of all the booths, the presiding officer counted the votes incorrectly and gave wrong counting papers in which illegally votes have been given to only Respondent No. 8 and in somewhere the agents have not been given counting papers. Two Persons namely Indrapal Porte S/o Kuman Singh Porte of Ward No. 5, Block No. 398 and Kripal Pal Porte S/o Kuman Singh Porte of Ward No. 5, Block No. 416 has given two times voting before the two different panchayats i.e., in Gram Dhummatola and in Gram Manaura by way of giving their different name mentioned as Indrapal Gond S/o Khuman Singh Gond of Ward No. 07, Block No. 558 and Krishna Pal Porte S/o Kuman Porte of Ward No. 08, Block No. 664. The aforesaid action done by the aforesaid persons are considered to be an electoral offense under Section 172 of Bhartiya Nyay Sahinta, 2023 which defines the personation at elections and section 125 and 136 of Representation ation of the People Act, 1951 which addresses the offense of double voting and also it is contrary to the framework for conducting elections and addressing malpractices as mentioned in the 4 Chhattisgarh Panchayat Nirvachan Niyam, 1995. On the day of election in aforesaid Gram Panchayat, the petitioner has received more votes from the Respondent No. 8, but on the time of the counting, the presiding officer has committed the grievous error at the time of the counting the ballet papers due to the reason of providing undue advantages to the Respondent No. 8. Thereafter, the petitioner has filed the application dated 25.02.2025 before the Respondent No. 04 i.e., Sub-Divisional Officer (Revenue), Marwahi, District Gaurela-Pendra-Marwahi (C.G.) for illegal action of the presiding officers and also for the recounting of the votes of all the booths in Gram Dhummatola. The petitioner has also moved an application for recounting due to the reason of wrong information and wrong counting of the ballet papers but after the respondent authorities did not take any action regarding the application/complaint/representation petitioner. The petitioner has received more votes as compared to the Respondent No. 8, therefore, the petitioner has having doubt in the counting of the ballet papers, therefore the petitioner wants to recount the ballet papers but respondent authorities ignored this fact that it is the mandatory provision, if any candidate wants to recount the ballet papers, then he can move an application before the competent authorities and competent authorities can recount the ballet papers as per law but due to the influence of Respondent No. 8, respondent authorities did not take any action regarding the application dated 25.02.2025 moved by the petitioner. The elected 5 candidate for the post of Sarpanch in Gram Panchayat Dhummatola is the Respondent No. 8 i.e., Mela Singh Meshram who is the brother-in-law (Jeeja) of the persons namely Indrapal Porte S/o Kuman Singh and Kripal Pal Porte S/o Kuman Singh who has voted two times in Gram Dhummatola and in Gram Manaura. The petitioner got 179 votes in the aforesaid Gram Panchayat where as Respondent No. 8 got 181 votes. Thereafter, on dated 24.02.2025, Respondent No. 8 won the election. for the post of Sarpanch by the way of illegally practice of double voting. It is clear from looking at the voter list that the photo of the both aforesaid persons on it is the same and they have changed their surname and have registered for two different booth numbers. This practice of double voting is illegal, contrary and bad in law. After counting of votes, the petitioner has received a total of 179 votes and the Respondent No. 8 has been declared victorious by getting 181 votes and the two votes is of the person namely Indrapal Porte and Kripal Porte has change their surname in another Gram and has voted two times just to favor their brother- in-law (Jeeja) who is the Respondent No. 8 namely Mela Singh Meshram. The several applications have been given to the respondent authorities for the recounting of votes in Gram Panchayat Dhummatola for the reasons herein above mentioned but no action and response has been given by the respondent authorities in any manner. (ANNEXURE – P/2.). In the voter list of the Gram Dhummatola and Gram Manaura clearly shows that the 6 aforesaid person namely Indrapal Porte and Kripal Porte has voted two times by mentioning their surnames different. The petitioner has also moved an application for getting certified copy of Form 17A (Register of Voter List) for the post of Sarpanch in the Gram Panchayat Dhummatola, Tehsil -Marwahi, District Gaurela- Pendra-Marwahi (C.G.) before the Respondent No. 05 i.e., Tehsildar/Returning Officer, Marwahi, District -Gaurela-Pendra- Marwahi (C.G.). Hence, the petitioner filed this petition. 4. Learned counsel for the respondents/State has opposed the argument advanced by the learned counsel for petitioner and stated that in the present scenario the results have already been declared and the private respondent has been declared as elected. The only remedy available to the petitioner is to file an Election Petition under Section 122 of the Panchayatraj Adhiniyam, therefore, the instant petition filed by the petitioner is not maintainable and deserves to be dismissed on the basis of the following reasons : - “1. The article 243 ‘O’ is expressly clear that there can be no interference in electoral matters and the only remedy available to the petitioner is to file an Election Petition. 2. In a recent Judgement of the Hon'ble Apex Court "Dharnin Bai Vs. Bobli Sahu & Ors." the Hon'ble Supreme Court has held that the Election Contest is not an action at law or a suit in Equity but purely a statutory proceeding, provision for it has to be strictly construed. 3. The Hon'ble Supreme Court has also stressed that where a statutory remedy has been created by the statute which gives special remedy for enforcing, the said remedy must be availed. It is most respectfully submitted that the Hon'ble Supreme court has also applied the aforesaid principle in the matter of Panchayat Elections. 7 4. It is respectfully submitted that the order of Annexure P/1 has been duly passed in accordance with law and in terms of the direction issued by the Hon'ble Court vide order dated 05/03/2025 in WPC No. 1218/2025. It is reiterated that the instant writ petition, where the principal grievance is the defeat of the petitioner in the Panchayat Elections, is not maintainable in its present form and the only remedy available is to file an Election Petition in accordance with the Section 122 of the Panchayat Adhiniyam. 5. I have heard the learned counsel for the parties and also perused the material available on records. Since the results have already been declared and the Sarpanch of the Gram Panchayat – Dhummatola, Tehsil Marwahi, District - Gaurela-Pendra-Marwahi and other members have already been elected, as such, the only remedy lies before the petitioner is to file an Election Petition under Section 122 of C.G Panchayat Rajya Adhiniyam, the relief as sought by the petitioner for recounting of the vote cannot be passed in such a situation. 6. Hon'ble Supreme Court in the matter of Sohan Lal vs. Babu Gandhi and others reported in (2003) 1 SCC 108, held in para 12 as under : “12. Thus after declaration of results, the Returning Officer has no power either to direct recount or to change the results of the election. Once the result is declared, the only remedy of an aggrieved party is an Election Petition under Section 122.” 7. Further, Hon'ble Supreme Court in the matter of Dharmin Bai Kashyap vs Babli Sahu and Others reported in (2023) 10 SCC 8 461 decided on 16 August, 2023 held in paras 4, 5, 6, 7, 13 & 17 as under : "4. Before adverting to the submissions made by the learned counsel for the parties on the issue involved it would be apt to mention that as per Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the said Act) an election under the said Act could be called in question only by a petition presented in the prescribed manner, and in case of Panchayat to the Sub Divisional Officer (R), within 30 days from the date on which the election in question was notified. The State Government in exercise of the powers conferred by sub-section (1) of Section 95 read with Section 43 of the said Act of the 1993 has framed the Rules called the Chhattisgarh Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as the Nirvachan Niyam 1995). 5. Chapter IX of the said Nirvachan Niyam 1995 deals with “Poll and voting for election”. Sub rule (1) and sub rule (2) of Rule 77 thereof being relevant are reproduced here under: - 77. Counting of votes. – (1) Every ballot paper which is not rejected under rule 76 shall be counted: Provided that no cover containing tender ballot papers shall be opened and no such ballot paper shall be counted. (2) After the counting of votes in respect of a polling station has been completed, the Returning Officer or such other officer authorised by him, shall make the entries in result sheet in Form 16 for Panchas and in Part one of the result sheet in Form 17, 18 and 19 for sarpanch, members of and Zila Panchayat Janpad Panchayat respectively and announce the total number of votes polled by each candidate. 6. Rule 80 pertains to the recount of votes. The relevant sub-rule (1) and (2) thereof are reproduced hereunder: - 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 9 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 to if it appears to him to be frivolous or unreasonable. 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.