Bombay High Court
Gangadhar S/O Mukunda Jibhakate vs The Collector, Bhandara And Others on 21 November, 2019
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
J-WP-4998-18,3565-19 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4998 OF 2018
Vivekanand s/o Shravan Kurzekar
Aged about 50 yrs, Occ. Agriculturist,
R/o Kondha, Tah. Pavni,
District Bhandara ... Petitioner
-vs-
1. The Collector, Dist. Bhandara
2. Chief Executive Officer
Zilla Parishad and Panchayat Samiti
Tal. Pavni, Dist. Bhandara
3. The Election Officer/Sub-Divisional Officer,
Bhandara, Zilla Parishad and Panchayat Samiti
Tal. Pavani, District Bhandara
4. Gangadhar s/o Mukunda Jibhkate
Aged bout 63 yrs. Occ. Agriculturist
R/o Kondha, Tal, Pavni, District Bhandara ... Respondents.
WITH
WRIT PETITION NO.3565 OF 2019
Gangadhar s/o Mukunda Jibhkate
Aged bout 63 yrs. Occ. Agriculturist
R/o Post Kondakosra, Tq. Paoni, District Bhandara ... Petitioner
-vs-
1. The Collector, Dist. Bhandara
2. Zilla Parishad and Panchayat Samiti
Paoni, Dist. Bhandara, Thr. Its Chief Executive Officer,
District Bhandara
3. Shri Gaoli
The Returning Officer/Election Officer,
Zilla Parishad and Panchayat Samiti
Paoni, District Bhandara Elections 2015,
4. Vivekanand s/o Shravan Kurzekar
Aged about 45 yrs, Occ. Farmer,
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R/o at Post Kondha, Tah. Paoni,
District Bhandara
5. Homraj Uprikar,
aged 32 years, Occ. Farmer,
R/o At Post Shendri,
Tah: Paoni, District Bhandara
6. Vijay s/o Ramdas Katekhaye,
aged 35 years, Occ. Farmer,
R/o At Post Kosra,
Tah: Paoni, District Bhandara
7. Dhanraj Laxman Jibhkate,
aged 49 years, Occ. Farmer,
R/o At Post Kondha,
Tah: Paoni, District Bhandara
8. Ashish Kundalik Mate,
aged 40 years, Occ. Farmer,
R/o At Post Gose (Buj), ,
Tah: Paoni, District Bhandara
9. Dipti w/o Diwakar Dakhre,
aged 45 years, Occ. Farmer,
R/o At Post Kosra,
Tah: Paoni, District Bhandara
10. Kalpana w/o Dhanraj Gabhne
aged 42 years, Occ. Farmer,
R/o At Post Kosra,
Tah: Paoni, District Bhandara
11. Asha w/o Parmanand Kawade,
aged 44 years, Occ. Farmer,
R/o At Post Kondha,
Tah: Paoni, District Bhandara
12. Manisha w/o Moreshwar Lichade
aged 35 years, Occ. Farmer
R/o At Post Kondha, Tah. Paoni,
Dist. Bhandara
13. Tulshiram s/o Motiram Kolhe,
aged 50 years, Occ. Farmer,
R/o At Post Navegaon, Post Sonegaon,
Tah: Paoni, District Bhandara
14. Lahu s/o Nathu Khobragade,
aged 58 years, Occ. Farmer,
R/o At Post Chichal,
Tah: Paoni, District Bhandara
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15. Hemraj s/o Gulab Deshmukh,
aged 40 years, Occ. Farmer,
R/o At Post Akot,
Tah: Paoni, District Bhandara
16. Madhav s/o Motiram Deshmukh,
aged 55 years, Occ. Farmer,
R/o At Post Akot,
Tah: Paoni, District Bhandara
17. Someshwar s/o Godhruji Bhure,
aged 40 years, Occ. Farmer,
R/o At Post Pathri
Tah: Paoni, District Bhandara
18. Vasanta s/o Namdeo Moharkar,
aged 52 years, Occ. Farmer,
R/o At Post Akot,
Tah: Paoni, District Bhandara
19. Parshuram s/o Vithoba Samarit,
aged 30 years, Occ. Farmer,
R/o At Post Pathri,
Tah: Paoni, District Bhandara ... Respondents.
Shri D. V. Chauhan, Advocate with Shri Himanshu A. Khedikar, Advocate for petitioner in
W.P.No.4998/2018 and for respondent No.4 in W.P. No.3565/2019
Shri S. B. Bissa, Assistant Government Pleader for respondent Nos.1 and 3 in both the writ
petitions.
Shri A. Y. Kapgate, Advocate for respondent No.2 in both the writ petitions.
Shri Anish A. Kathane, Advocate for respondent No.4 in W.P.No.4998/2018 and for
petitioner in W.P. No.3565/2019.
CORAM : A. S. CHANDURKAR, J.
DATE : November 21, 2019 Common Judgment :
Since challenge has been raised in both these writ petitions to the judgment in Election Petition No.2/2015 dated 13/07/2018, these writ petitions are heard and decided together by this common judgment.
Rule. Heard finally with consent of counsel for the parties.::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 ::: J-WP-4998-18,3565-19 4/11
2. The facts giving rise to the present proceedings are that on 04/07/2015 elections were held to Zilla Parishad, Bhandara in which the petitioner in Writ Petition No.4998/2018 came to be elected. The constituency from which the said petitioner contested was Kondakosra, Taluka Pavni. The petitioner polled 2657 votes while the respondent No.4 polled 2662 votes. However, when the results were declared, the petitioner was declared elected having polled 2714 votes while the respondent No.4 had polled 2672 votes. The respondent No.4 being aggrieved by the election of the petitioner filed Election Petition No.2/2015 under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 (for short, the Act of 1961). By the judgment dated 13/07/2018 the learned Principal District Judge recorded a finding that there was no irregularity committed when the votes were counted however in accordance with the principles of natural justice a recount ought to have been granted. Accordingly the election petition was partly allowed and the Returning Officer was directed to conduct re-count of the votes with notice to the candidates and thereafter to submit a fresh report in Court. The returned candidate being aggrieved by this direction has preferred Writ Petition No.4998/2018 while the original election petitioner has preferred Writ Petition No.3565/2019.
2. Shri D. V. Chauhan, learned counsel for the returned candidate submitted that the learned Principal District Judge committed an error in partly allowing the election petition and ordering recount of the votes. According to him such recount could not have been ordered merely for the asking and unless there was a clear case made out in that regard no direction to recount the votes could ::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 ::: J-WP-4998-18,3565-19 5/11 have been directed. He referred to the provisions of Rule-64(2) of the Maharashtra Zilla Parishads (Electoral Divisions and Conduct of Election) Rules, 1962 (for short, the Election Rules) and submitted that unless a clear case in that regard was made out by the election petitioner no direction to recount the votes could have been issued. He then submitted that even under provisions of Section 27 of the Act of 1961 such direction could not have been issued. On finding absence of any irregularity in the process of counting of votes which finding was specifically recorded in paragraph 14 of the impugned judgment, the direction of recount was without jurisdiction. Moreover even in the election petition that was filed under Section 27 of the Act of 1961 no relief seeking recount of the votes had been prayed for. In support of his submissions the learned counsel relied upon the decision in Tukaram s/o Asaram Jadhav vs. Laxman s/o Dhanaji Bhojne and ors. (2003) 105 (4) Bom LR 321 as well as judgment of the learned Single Judge in Santosh Laxman Jadhav vs. Sachin Shivram Kolape and ors. 2015 SCC Online Bom 5414 . He therefore submitted that the learned Principal District Judge ought to have dismissed the election petition in its entirety.
3. Shri A. A. Kathane, learned counsel for the defeated candidate supported the direction of recount and submitted that the proceedings in the election petition ought to have been kept pending by awaiting the outcome of recount. There was no necessity to dispose of the election petition as if in the recount it was found that the defeated candidate had infact secured higher votes than the returned candidate there would be no remedy left for the defeated candidate. He referred to the provisions of Section 27 of the said Act as well as the application for ::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 ::: J-WP-4998-18,3565-19 6/11 recount that was moved by the defeated candidate. He then submitted that on 06/05/2015 the defeated candidate had moved an application before the Returning Officer objecting to the votes counted and had prayed for recount along with details of votes polled at each booth. The Returning Officer on 06/07/2015 while rejecting the said application had directed that the defeated candidate be supplied with figures of the votes polled. As these figures were not provided the learned Principal District Judge rightly directed recount of the votes with a view to comply with the principles of natural justice. Thus while the learned Principal District Judge was justified in ordering recount, disposal of the election petition was unwarranted and the impugned judgment to that extent was liable to be modified. For that purpose the learned counsel referred to the decision in Shobha Raosaheb Deshmukh vs. Election Returning Officer, Zilla Parishad and Panchayat Samiti, General Election 2012, Georai, Dist. Beed. and ors. (2016) 2 AIR Bom R 48 . The learned counsel therefore submitted that the impugned judgment was liable to be modified to the above extent.
4. I have heard the learned counsel for the parties at length and I have also gone through the relevant documents referred to by them. The election of the returned candidate has been challenged by filing proceedings under Section 27 of the said Act principally on the ground that despite a request made for recounting of votes that request was not accepted by the Returning Officer and this amounted to "a corrupt practice, irregularity and error in counting of votes". One of the prayers made in the election petition was to direct fresh counting of the votes polled in that election and a declaration was sought that the action of the Returning Officer ::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 ::: J-WP-4998-18,3565-19 7/11 of not permitting recount was illegal and malafide. While deciding the election petition the learned Judge by his judgment dated 13/07/2018 after considering the evidence led by the parties recorded a finding that after viewing the compact disc with regard to the process of counting of votes he could not find any irregularity therein. He then considered the argument made on behalf of the election petitioner that if there was fresh counting of votes, there would be no prejudice to the parties. It was observed that the evidence on record did not indicate any specific illegality or irregularity in counting of votes and that the evidence in that regard led by the election petitioner was insufficient. However with a view to comply with the principles of natural justice the learned Judge proceeded to direct the Returning Officer to recount the votes within a period of one month from the date of the order and submit a report in that regard to the Court. The election petition was disposed of by observing that the other prayers made in the election petition were being disallowed.
5. In so far as observations of the learned Judge made in paragraphs 14 to 16 which record a finding that no irregularity could be found during the process of counting of votes and that no specific illegality/malafide practice was not brought on record due to absence of such evidence are concerned, those findings/observations had not been specifically challenged nor has it been demonstrated that these observations were contrary to the record. The question therefore to be considered is whether the learned Judge of the trial Court was justified in directing a recount of the votes despite recording a finding that there was no illegality/irregularity found with the votes which were counted and the ::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 ::: J-WP-4998-18,3565-19 8/11 results that were declared. Under Rule 64 of the Elections Rules after the votes are counted and the result sheet is filled in a candidate or his election agent can apply in writing to the Returning Officer for a recount of all or any of the ballot papers already counted. The applicant has to indicate the grounds on which he demands such recount. Such application has to be decided by the Returning Officer and the application may be allowed either in its entirety or in part. The application can also be rejected if it appears to be frivolous or unreasonable. The Returning Officer has to give his decision in writing along with reasons for the same.
As stated above the election petitioner made an application on 06/05/2015 addressed to the Returning Officer in which it was stated that he had an objection to the votes as counted and hence there should be a recount of votes. He also requested that the number of votes polled at each booth be also given. The Returning Officer passed an order stating therein that in absence of any substantial material there was no reason to direct a recount. The application was thus rejected. However the Returning Officer directed the figures as demanded by the election petitioner be supplied to him. This direction has been construed by the learned Judge as a direction issued by the Returning Officer in compliance with the principles of natural justice and based on that direction a recount was ordered.
6. The right to get elected is not a right in common law. That right is circumscribed by the provisions of the applicable election law. The parameters for consideration of a prayer for recount are well settled and a recount cannot be ordered/directed merely for the asking. Merely on the basis of a vague request without any supporting material, the Court would not be justified in permitting a ::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 ::: J-WP-4998-18,3565-19 9/11 recount. In Shri Satyanarain Dudhani vs. Uday Kumar Singh and ors. AIR 1993 SC 367 it was observed that in absence of any valid ground and without there being even a single instance indicating any irregularity or illegality in the counting of votes it would not be proper to order a recount on the basis of bare allegations. The secrecy of ballot paper cannot be permitted to be tinkered lightly and an order of recount cannot be granted as a matter of course. In Tukaram s/o Asaram Jadhav (supra) the very same provisions of Rule 64 of the Election Rules were considered and it was observed that recount cannot be lightly ordered in an election petition on the basis of bald and insufficient averments in the election petition. In Tanaji Ramchandra Nimhan vs. Swati Vinayak Nimhan and ors. 2006(2) Mh.L.J. 763 the aforesaid position has been reiterated and it has been observed that in absence of any specific and concrete material being made available the Election Tribunal would not be justified in exercising its jurisdiction to order a recount.
7. As noted a specific finding has been recorded by the learned Judge of the trial Court that there was no evidence or material to indicate any irregularity in the process of recounting of votes. No substantial evidence in that regard was led by the election petitioner. Having recorded that finding the learned Judge ought to have proceeded to dismiss the election petition and there was no justification whatsoever to direct a fresh counting of the votes. That direction is without any jurisdiction and the same cannot be sustained.
8. The learned counsel for the election petitioner has placed much emphasis on the direction given by the Returning Officer to provide the figures of ::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 ::: J-WP-4998-18,3565-19 10/11 the votes polled. Once it was found by the Returning Officer that the prayer for recount was not supported by any substantial material and the application in that regard was rejected there was no reason for the Returning Officer to direct the figures of the votes to be supplied to the election petitioner. Even that direction is contrary to law and therefore the learned Judge of the trial Court was not justified in proceeding to observe that by not supplying those figures the principles of natural justice had been violated. It was also submitted by the learned counsel for the election petitioner by relying upon the provisions of Section 27(2) of the said Act that the election petition was not liable to be dismissed especially when a direction was given for recount of the votes. According to him the election petition ought to have been kept pending and after the results of the recount were received, the election petition could have been further adjudicated. This contention cannot be accepted as it has been found that the direction to order recount is itself not justifiable. Having recorded a specific finding with regard to absence of any illegality/irregularity and thereafter having proceeded to dismiss the election petition the direction to recount the votes was without jurisdiction. Hence instead of issuing that direction the proceedings ought to have been put to an end by dismissing the election petition.
9. In that view of the matter for the aforesaid reasons the following order is passed :
(i) The judgment dated 13/07/2018 in Election Petition No.02/2015 is partly modified. While maintaining dismissal of the election petition the direction issued to recount the votes stands set aside. The election ::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 ::: J-WP-4998-18,3565-19 11/11 petition stands dismissed in its entirety.
(ii) Accordingly Writ Petition No.4998/2018 is allowed and Writ Petition No.3565/2019 is dismissed. Rule is disposed of in aforesaid terms in both the writ petitions. The parties shall bear their own costs.
JUDGE Asmita ::: Uploaded on - 04/12/2019 ::: Downloaded on - 24/04/2020 11:38:44 :::