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IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR

ON THE 14th OF NOVEMBER, 2022

WRIT PETITION No. 17206 of 2022

BETWEEN:-
SMT. SONUKUNWAR W/O GUMAN SINGH, AGED
ABOUT 37 YEARS, OCCUPATION: HOUSE WIFE VIL-
LAGE BAPACHYA TEHSIL SHAMGARH DISTRICT
MANDSAUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.S. CHHABRA, SENIOR COUNSEL WITH SHRI MUDIT
MAHESHWARI, ADVOCATE)
AND
PANCHAYAT AND RURAL DEVELOPMENT DEPART-
1. MENT THROUGH PRINCIPAL SECRETARY VALLBH
BHAWAN DISTRICT BHOPAL (MADHYA PRADESH)
STATE ELECTION COMMISSION THROUGH CHIEF
2. ELECTION COMMISSIONER NIRMAN BHAWAN 58
ARERA HILS BHOPAL (MADHYA PRADESH)
RETURING OFFICER (PANCHAYAT ELECTION) TEH-
3.
SILDAR OFFICE GAROTH, (MADHYA PRADESH)
SUB DIVISIONAL OFFICER (PANCHAYAT ELECTION)
4.
SDO OFFICE GAROTH (MADHYA PRADESH)
DISTRICT ELECTION OFFICER CUM COLLECTOR
5.
COLLECTOR OFFICE (MADHYA PRADESH)
.....RESPONDENTS
(MS. VARSHA THAKUR, DY. G.A. FOR THE STATE, SHRI KAMAL
AIREN, ADVOCATE FOR RESPONDENTS NO.2 TO 5 AND SHRI
ROHIT MANGAL, ADVOCATE FOR INTERVENER)
This petition coming on for admission/orders this day, the

court passed the following:

Signature Not Verified

Signed by: KHEMRAJ JOSHI
Signing time: 24-11-2022
13:03:56
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ORDER
1] This writ petition has been filed by the petitioner Smt.
Sonukunwar W/o Guman Singh under Article 226 of the
Constitution of India seeking the following reliefs:-

“(i) That, the Respondents be directed to quash the notice dt.

19.07.2022 to the Petitioner (Annexure P/3)
(ii) That, any action taken by the Respondents in cancelling the
Certificate of Election dt. 14.07.2022 (Annexure P/1) given to
the Petitioner be quashed
(iii) Any other order/orders that this Hon’ble Court deems fit and
proper in the facts and circumstances of the case may also
kindly be passed.”

2] The grievance of the petitioner is that in the election of

Member, Janpad Panchayat, Garoth, District Mandsaur, the
petitioner received highest votes from constituency No.24 and
certificate of election was also given to her on 14/07/2022, by the
Returning Officer, however, on 19/07/2022, the petitioner was
served with a notice by the Returning Officer, Garoth informing
that one candidate Durga W/o Ramprasad Rathore has submitted an
application on 16/07/2022, alleging that as per the data of Returning
Officer dated 08/07/2022, she (Durga W/o Ramprasad) won the
election by 28 votes, however, in the list dated 14/07/2022, the
candidate who was earlier at Sr.No.3 Smt. Sonukunwar W/o Guman
Singh has been declared as elected by 213 votes. Hence, the
petitioner was directed to submit her reply.

3] Learned counsel for the petitioner has submitted that the

Signature Not Verified

Signed by: KHEMRAJ JOSHI
Signing time: 24-11-2022
13:03:56
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aforesaid impugned notice dated 19.07.2022 has been issued to the

petitioner with malafide intentions for declaring the other candidate
Durga W/o Ramprasad as winning candidate despite the fact that in
the list issued by the Returning Officer dated 21/07/2022, the said
Durga had obtained only 1506 votes whereas the petitioner had
obtained 1717 votes. Counsel has further submitted that the
discrepancy in the present case arose when the Returning Officer
has wrongly mentioned the name of the petitioner Smt. Sonukunwar
at Sr.No.4 instead of Sr.No.5 which was the correct sequence.
However, the votes cast in favour of the petitioner Smt.
Sonukunwar and Shyamubai have not been altered as the name of
Smt. Sonukunwar was to appear at Sr.No.5 and against Sr.No.5, the
votes cast were 352 votes and Shyamubai whose name is mentioned
at Sr.No.2 ought to have been mentioned at Sr.No.4 and against
Sr.No.4, the votes cast were 36 only. Thus, it is submitted that this
wrong mentioning of the name of the petitioner had led to all the
controversy. Counsel for the petitioner has drawn the attention of
this Court to the sequence of the names of candidates in the other
polling booths in which name of the petitioner has been mentioned
at Sr.No.5 only.

4] A reply has also been filed by the respondents No.2 to 5/the

Election Commission and it is submitted that the petition is liable to
be dismissed as it is filed only against a show cause notice and thus,
is not maintainable. It is further submitted that after the other

Signature Not Verified

Signed by: KHEMRAJ JOSHI
Signing time: 24-11-2022
13:03:56
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candidate Smt. Durga W/o Guman Singh lodged her complaint on

16/07/2022, notice was issued to the petitioner on 16/07/2022 only
in accordance with Rule 84 of the M.P. Panchayat Nirvachan
Niyam, 1995 (hereinafter referred to as ‘the Niyam of 1995’) which
provides for Powers of District Election Officer to correct clerical
or arithmetical mistakes or errors. However, the notice sent to the
petitioner came back unserved and thereafter on 19/07/2022 also,
another notice was affixed on the house of the petitioner and the
Returning Officer forwarded the matter to SDM, Garoth who
directed that under the Niyam of 1995, the DEO has the power to
correct the mistakes or errors, hence, the matter went before the
DEO, where the Returning Officer also sent its report dated
21/07/2022, and the DEO has again issued notice to all the
candidates on 21/07/2022 and the matter was fixed on 25/07/2022.
On 22.07.2022,, after hearing the parties, while exercising its
powers under Rule 84 of the Niyam of 1995, the certificate issued
to the petitioner on 14/07/2022 has been cancelled and recalled and
the Returning Officer was directed to issue new certificate to Smt.
Durga W/o Ramprasad which was issued to her on 25/07/2022.
Copy of the order dated 25/07/2022 and certificate of election of
Durga dated 25/07/2022 have been placed on record as Annx. R/4.

5] Shri Kamal Airen, learned counsel appearing for respondents

No.2 to 5 has also submitted that the aforesaid order dated
25/07/2022 has not been challenged by the petitioner and she also

Signature Not Verified

Signed by: KHEMRAJ JOSHI
Signing time: 24-11-2022
13:03:56
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did not participate in the aforesaid proceeding despite service of

notice, hence, the petition is liable to be dismissed on this ground
only. Additionally Shri Airen has also submitted that otherwise also,
the petition is liable to be dismissed as the petitioner has an
efficacious alternative remedy under Section 122 of the M.P.
Panchayat Raj Avam Gram Swaraj Adhiniyam of 1993 by way of
election petition and thus, on this ground also, the petition is liable
to be dismissed. In support of his submissions, Shri Airen has also
relied upon the decision rendered by this Court in the case of
Bhanwarbai and others Vs. M.P. State Election Commission and
others in WP No.17927/2022 passed on 02/11/2022, wherein, this
Court has also considered the other decisions on this point and has
held that the writ petition is not maintainable.

6] Shri Rohit Mangal, learned counsel appearing for the

intervener Smt. Durgabai has submitted that the petitioner has not
made Smt. Durgabai a party/respondent who is the elected
candidate and on this ground only, the petition is liable to be
dismissed for non-joinder of necessary parties and this is despite the
fact that the respondents Election Commission has already placed
on record the document regarding election of intervening Durga Bai
W/o. Shree Ram who obtained 1504 votes, whereas the petitioner
obtained 1401 votes. It is further submitted that the order of
declaring the intervener Durga Bai as elected has been passed while
exercising the powers under Rule 84 of the Niyam of 1995 which

Signature Not Verified

Signed by: KHEMRAJ JOSHI
Signing time: 24-11-2022
13:03:56
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cannot be challenged in a writ petition. Thus, it is submitted that no

case for interference is made out.

7] Heard learned counsel for the parties and perused the record.

8] From the record, it is apparent that the petition has been filed
only against issuance of show cause notice, which, in the
considered opinion of this Court does not give any right to the
petitioner to challenge the same at the initially stage itself. It is also
found that the District Election Officer has passed the order on
25/07/2022 while exercising its power under Rule 84 of the Niyam
of 1995, and it is nobodies case that the DEO had exceeded his
jurisdiction in passing the aforesaid order and in such
circumstances, the validity of the order cannot be gone into by this
Court while exercising its powers under Article 226 of the
Constitution of India. On the other hand, since the intervener Smt.
Durga Bai W/o Shree Ram has already been declared as elected, but
she has not been made a party/respondent in this petition, in such
circumstances, the petition is also liable to be dismissed for non-
joinder of necessary party. On the other hand, the election of Smt.
Durga Bai can only be challenged by way of an election petition
under Section 122 of the Adhiniyam of 1993.

9] In view of the same, the petition being devoid of merits is

liable to be and is hereby dismissed. However, with liberty to the
petitioner to avail appropriate remedy available to him under the
law

Signature Not Verified

Signed by: KHEMRAJ JOSHI
Signing time: 24-11-2022
13:03:56
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10] Needless to say that the time spent by the petitioner in

prosecuting this petition and taking note of the fact that the interim
relief was also in operation, the same shall be excluded in counting
the period of limitation to file the election petition.

(SUBODH ABHYANKAR)
JUDGE
krjoshi

Signature Not Verified

Signed by: KHEMRAJ JOSHI
Signing time: 24-11-2022
13:03:56