Gujarat High Court
Javantiben Bhikaji Thaveracha vs Rangaben Manaji Thaveracha on 5 March, 2003
Equivalent citations: 2003 A I H C 3505, (2003) 2 GUJ LH 306
JUDGMENT Kshitij R.Vyas, J.
1. Rule. Mr.C.L.Soni, learned Counsel waives service of Rule on behalf of respondent No.1 and Mr.Premal Joshi, learned AGP waives service of Rule on behalf of respondent No.2.
2. With the consent of learned Counsel appearing for the parties, this petition is heard today finally.
3. The petitioner, in this petition, has challenged the order dated 28th January 2003 passed by the learned Civil Judge (JD), Tharad, below application Exh.10 in Election Petition No. 2 of 2002, whereby the said application was allowed and recounting was ordered during the pendency of the election petition.
4. The general election of Krial Gram Panchayat was held on 23rd December 2001. After the election, the petitioner was declared elected as Sarpanch on a seat exclusively reserved for lady candidate by two votes. It is the case of the petitioner that respondent No.1 was also a candidate for the post of Sarpanch of the Panchayat. The counting was scheduled on 26th December 2001. A total of 690 votes were cast and during the counting, the petitioner got 317 votes and respondent No.1 got 326 votes and 47 votes were kept aside as doubtful votes for acceptance. It is further the case of the petitioner that immediately before declaration of the result by the Returning Officer, he gave an application for recounting of votes. The Returning Officer, in presence of both the candidates and their respective election agents, with the consent of both the candidates, recounted the votes which were kept aside as doubtful valid votes. It is averred in the petition that during the said recounting of the 47 doubtful votes, 15 votes were accepted in presence of both the candidates and their respective election agents and 32 votes were declared as invalid votes. Out of the said 15 votes, the petitioner got 13 votes and respondent No.1 got 2 votes. At the end of the verification of the doubtful votes, the petitioner got 330 votes and respondent No.1 got 328 votes and accordingly the petitioner was declared elected by a margin of two votes. It is further averred in the petition that, after declaration of the result by the Returning Officer, respondent No.1, for the reasons unknown, gave an application to the Returning Officer, for recounting of votes by making false and baseless allegations and prayed for recounting of the votes which was rejected by the Returning Officer, as the result was already declared.
5. Respondent No.1 preferred Election Petition No.2 of 2002 on 3rd January 2002 under Section 31 of the Gujarat Panchayats Act, 1993 before the learned Civil Judge (JD), at Tharad, challenging the result of the election in favour of the petitioner. On 11th January 2002, respondent No.1 preferred an application at Exh.10 praying for the detailed verification and recounting of votes in presence of the Tribunal. After hearing the parties, the Tribunal allowed application Exh.10 by its order dated 28th January 2003 mainly on the ground that, considering the record of the case, respondent No.1 has reasonable ground for doubting the recounting and therefore, it was proper to order recounting.
6. Learned Counsel Mr.Mehul Rathod appearing for the petitioner submits that the Tribunal has erred in not appreciating the settled legal position that the doctrine of implied power of the Tribunal to grant relief which is necessary for the purpose of granting the main relief, cannot be exercised at an interim stage, more particularly when Section 31 of the Gujarat Panchayats Act does not invest such power in the Election Tribunal and when no inquiry of the material facts and the evidence were conducted by the Tribunal and therefore the impugned order is liable to be quashed and set aside. On the other hand, learned Counsel Mr.Soni appearing for respondent No.1 supported the order of the Tribunal in toto by contending that considering the difference of votes is too small, the Tribunal was justified in ordering recount of the votes.
7. Before we proceed to deal with the rival contentions, it will be necessary to refer to and consider the law on the subject.
In the case of N.Narayanan v. Semmalai and ors., reported in AIR 1980 SC 206, the Apex Court has ruled that, "the relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered would not by itself vitiate the counting of votes or justify recounting by the Court."
In paragraph 26 of the said judgment, the Apex Court has further considered that the Court will be justified in ordering recount of the ballot papers only where,
(i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(ii) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and
(iii) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
From the above judgment, it is clear that on the basis of the allegations, recount is not permissible. It is only after when those allegations are proved by cogent evidence, the recount can be ordered. In other words, recount cannot be ordered at the interim stage.
In a recent decision in the case of Vadivelu v. Sundaram and ors., reported in (2000) 8 SCC 355, the Apex Court has specifically observed that, "recounting of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to recount of votes under such circumstances to do justice between the parties."
In this decision, the Apex Court has also emphasised that recounting cannot be ordered on the basis of general and bald allegations. The party seeking recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes.
8. Considering the case on hand, it is clear that by filing application Exh.10, respondent No.1 has made general and bald allegations against the procedure adopted by the Returning Officer. The petitioner as well as the Returning Officer have filed reply against the said application and have denied the allegations. Once the fact becomes a disputed question of fact, the party alleges illegality or irregularity in the matter of the procedure adopted by the Returning Officer in counting the ballots, is required to prove by leading evidence. Till the allegations made in the application are established and proved, the allegations remain as mere allegations and therefore, on the basis of the allegations, the Court cannot order recount at the interim stage.
When the election petition is pending before the Tribunal and the parties are required to establish their case by leading evidence with a view to see to it that no prejudice is caused to either of the parties, we refrain from entering into the merits of the case, by considering the allegations and the counter allegations of the parties. Needless to say that we are deciding the legal contention, namely, whether the Election Tribunal is justified in ordering recount at the interim stage. As per the settled law on the question, in our opinion, the Tribunal was not justified in ordering recount at the interim stage.
9. Learned Counsel Mr.Soni appearing for respondent No.1 invited our attention to the decision of this Court in the case of Manvar Shankerbhai Mansang v. Pandya Shankarlal Amiram and ors., reported in 1997 (3) GLR 2478. In the said decision, the Division Bench of this Court permitted recount at the interim stage on the ground that there was a margin of difference of only one vote. In paragraph 10 of the said decision, it is observed that, "Having regard to narrowest margin of difference of one vote only, and there was change of result and non-consideration of 67 votes of the third candidate and 11 invalid votes at recounting, in our opinion, there was sufficient cause for permitting the recount."
In the case of Mahant Ram Prakash Das v. Ramesh Chandra and ors., reported in (1999) 9 SCC 420, the Apex Court has laid down that though mere fact that the petitioner was defeated by a small margin of votes by itself is not a sufficient ground for recount but that fact assumes significance if prima facie case as to error in counting is made out.
In our opinion, considering the facts and circumstances of the case, we are prima facie of the opinion that no error in counting is made out and therefore, the Election Tribunal could not have ordered recount on the ground that respondent No.1 was defeated by a small margin of two votes.
10. Thus, taking the overall view of the matter, we are clearly of the opinion that the Tribunal has committed an error in passing the order of recount at the interim stage. We accordingly set aside the order dated 28th January 2003 passed by the learned Civil Judge (JD), at Tharad below application at Exh.10 in Election Petition No.2 of 2002 and direct the Tribunal to hear and decide the Election Petition on merits, as expeditiously as possible. This petition is accordingly allowed. Rule is made absolute. There shall be no order as to costs.
Office is directed to send the writ of this order forthwith.