Not A Fair Election, 13 Out Of 25 Members Didn't Vote: Madhya Pradesh HC Cancels Election Of Ujjain Panchayat President, Directs Fresh Poll

The Indore Bench of Madhya Pradesh High Court has declared the election to the post of President Janpad Panchayat, Ujjain as illegal and void and ordered for fresh elections, after noting that out of the 25 elected members, 13 were not permitted to cast a vote.A division bench of Justice Vivek Rusia and Justice Gajendra Singh observed, “Respondent No.5(Vindhya Kunwar), who was declared elected in an undemocratic manner is continuing on the post and has no authority to continue on the said post. Respondent No.5 cannot be declared elected when the opposite candidate is not permitted to cast the vote. The presiding officer ought to have adjourned the date of election for which he has the authority to do so under the rules. If the petitioners are relegated to pursue the election petition, then by the time the election petition is decided, he will complete his tenure of 5 years. Hence, the election of respondent No.5 to the post of President Janpad Panchayat Ujjain is liable to be declared illegal and void.”Thus, the court declared the election of Respondent No. 5 Vindhya Kunwar to the post of President Janpad Panchayat Ujjain as illegal and void. It said, “…out of 25 elected members 13 were not permitted to cast a vote or did not cast a vote and all these 13 filed the Writ Petition and now writ appeal against the election of respondent No.5 hence, they were not going to cast the vote in her favour, thus, respondent No.5 cannot be treated elected in free and fair election". In the present matter, Appellants No.1 to 10 are the elected members of Janpad Panchayat Ujjain and appellants No.11 to 13 are the representatives of the three other members of the said Panchayat as at that time they were suffering from Covid-19 and were under quarantine. After the election of Janpad Panchayat, the Presiding Officer issued an election program for conducting an election to the post of President and Vice President under the provisions of the M.P. Up-Sarpanch (President and Vice President) Nirvachan Niyam, 1995. According to appellants/writ petitioners, 3 elected members were suffering from Covid-19 disease and were unable to cast their votes, therefore, they authorized appellants No.11 to 13 to cast their votes. The applications to that effect were submitted before the Presiding Officer along with the Covid certificate. Similarly, 4 other elected members i.e. appellants No.1 to 4 requested for the casting of votes through a companion being an illiterate. The Presiding Officer rejected all the applications that conducted the election and declared respondent No.5 Vindhya Kunwar as the elected candidate by securing 12 votes. Therefore, the petitioner filed a writ petition which was dismissed on the ground that the petitioners have remedy to take recourse of election petition if they are so advised. Thus, the present writ appeal was filed.The counsel for the appellants/petitioner contended that petitioner filed the writ petition on August 2, 2022 and on that day the election was not notified, therefore, the writ petition was very much maintainable because the election petition could not have been filed without notifying the election.On the contrary, the counsel for the respondents submitted that the election of the President of Janpad Panchayat had already been notified on July 27, 2022, therefore, at the time of filing of the writ petition, the writ petitioners had a remedy to file an election petition.After hearing the parties, the court referred to M.P. Panchayat Raj Adhiniyam, 1993 and noted that 25 members were elected in the general election who entitled to cast the vote for election of President and Vice President. Three elected members had applied for authorizing their respective representatives to cast a vote since they were suffering from Covid-19 and three other members being illiterate had requested to cast the vote through a companion. All the applications were rejected in a common order which is not on record. The court also noted that Bhanwar Bai secured zero votes and respondent No.5 Vindhya Kunwar secured 12 votes which means that all 12 votes were cast, in favour of the respondent No.5. Therefore, the court observed that when out of the total elected members 13 were not permitted to enter the premises to cast the vote "which forms a majority" thus Vindhya Kunwar who "secured 12 votes one-sided cannot said to be elected by a fair election". On the question of maintainability of the writ petition, the court said, “…the writ petition is always not barred when in a given facts and circumstances, if the High Court believes that there was no free and fair election and the statutory rights available to the candidates were denied, then the writ petition is liable to be entertained.”The writ appeal was hence, allowed and order of the writ court was set aside. The court also directed for a fresh election to be held for the post of President, Janpad Panchayat Ujjain.Case Title: Bhanwarbai And Others Versus Madhya Pradesh...

Not A Fair Election, 13 Out Of 25 Members Didn't Vote: Madhya Pradesh HC Cancels Election Of Ujjain Panchayat President, Directs Fresh Poll

Anukriti Mishra

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