Gujarat High Court
Rameshbhai Sumatbhai Humbal vs Laxmanbhai Tejabhai Khatariya on 24 April, 2018
Equivalent citations: AIR 2018 GUJARAT 97
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/919/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 919 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAMESHBHAI SUMATBHAI HUMBAL
Versus
LAXMANBHAI TEJABHAI KHATARIYA
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Appearance:
MR BM MANGUKIYA(437) for the PETITIONER(s) No. 1
MS BELA A PRAJAPATI(1946) for the PETITIONER(s) No. 1
MR DIPEN K DAVE(3296) for the RESPONDENT(s) No. 3
MR.D K.PUJ(3836) for the RESPONDENT(s) No. 1
SHREY H DAVE(8444) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 24/04/2018
Page 1 of 13
C/SCA/919/2018 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Rule. M/s. D.K. Puj, Shrey H. Dave & Dipen K. Dave, learned advocates waives service of notice of Rule on behalf of respondent nos. 1, 2 and 3 respectively. By consent of the parties, Rule is fixed forthwith.
2. The petitioner, who happened to the petitioner in Election Petition No. 1 of 2017 in the Court of Principal Civil Judge, Bhachau, has approached this Court by way of this petition under Article 226 of the Constitution of India, inter-alia seeking following reliefs :
"(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to quash and set aside the impugned judgment rendered by the learned Election Tribunal below Exh. 34 dated November 29, 2017;
(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to direct that Election Tribunal shall taken up the hearing of the Election Petition forthwith in view of the provisions contained in clause (b) of sub-section (7) of Section 31 of the Gujarat Panchayats Act, 1993;
(C) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned judgment rendered by the learned Election Tribunal below Exh.34 dated November 29, 2017, and direct the learned Election Tribunal to take up Page 2 of 13 C/SCA/919/2018 JUDGMENT hearing of the Election Petition No. 1 of 2017, forthwith;
(D) Be pleased to pass such other and further orders as may be deemed fit and proper."
3. Facts in brief, as could be gathered from the memo of petition deserve to be set out as under :
3.1 The State Election Commission appointed Sub-
Divisional Officer i.e. Prant Officer, Bhachau as the Election Officer in relation to elections of gram panchayat under his jurisdiction. The State Election authority vide its notification dated 5.12.2016 declared the election programme of 50 gram panchayats of Bhachau taluka. The election programme of the panchayat was declared at Sr. No. 7 in the said notification. As per said notification, the last date of notification of nominations was fixed on 10.12.2016; the date of scrutiny was 12.12.2016; the date of withdrawal was 14.12.2016, date of voting was 27.12.2017 and the date of counting was 29.12.2016. The petitioner as well as respondent nos. 1 and 2 submitted their nominations as per the schedule programme. The Returning Officer of Panchayat and Circle Inspector, Bhachau declared the list of contesting candidates vide his order dated 14.12.2016. As per the list of voters finally published by the competent authority, the total voters in the list of the said Panchayat is 4141, out of which 3193 voters cast their votes and counting was fixed on 29.12.2016. After telling of the votes or ballots, it was Page 3 of 13 C/SCA/919/2018 JUDGMENT declared that they were separating the votes in favour of the candidates as well as the ballots of the voters who have exercised not to cast vote in favour of any of the candidates and exercised right of not to vote, popularly known as NOTA. It was also declared that the invalid ballots would also be separated and, therefore, there shall be a bunch of five categories. The votes cast in favour of each of three candidates would be consisted of three lots and one lot of NOTA and one lot of invalid ballots. It is stated that 326 ballots were declared as invalid votes and no such procedure was followed.
3.2 It is stated that Rule 60 of the Gujarat Election Rules, 1994 provides that Returning Officer shall reject the ballot papers on the circumstances mentioned in said Rule. It is case of petitioner that the Returning Officer has rejected more than 100 ballots illegally, which were valid ballots of the votes who cast their vote in favour of the petitioner.
3.3 It is case of petitioner that he lost the election by 8 (eight) votes when the counting was over at about 11.00 pm. and accordingly the petitioner demanded for recounting and after great persuasion, the Returning Officer agreed to recount those rejected ballots and after verification of 100 votes, it was found that five ballots which cast vote in favour of the petitioner have been wrongly rejected. Thereafter the Returning Officer has all of sudden stopped counting of those rejected ballots and declared the Page 4 of 13 C/SCA/919/2018 JUDGMENT result unilaterally without obtaining signature of the petitioner.
3.4 In view of that, the petitioner preferred an Election Petition No. 1 of 2017 before the learned Principal Civil Judge, Bhachau. In said Election Petition, vide order dated 30.6.2017, the Returning Officer is joined as respondent no.3. The petitioner submitted an application Exh. 34 for expeditious disposal of the Election Petition and in said application Exh.34, the respondent has filed his reply on 20.9.2017. Thereafter vide order dated 29.9.2017, the Tribunal dismissed said application Exh. 34.
3.5 It is the case of petitioner that one Smt. Shantaben Velabhai Dhila preferred Election petition praying that in view of provisions of Section 31(7)(b) of the Act, the only course open to the Tribunal is to recount the votes as said election petitioner has not pointed any allegation regarding corrupt practice and therefore, as per the legislative command, the Tribunal was required to call for records and recount the votes. However, said plea was not accepted and accordingly, said Election petitioner has preferred Special Civil Application No. 7224 of 2017 before this Court and the Division Bench of this Court vide judgment and order dated 3.5.2017 held that in absence of any allegation of corrupt practice, the only course open to the Election Tribunal is to recount the votes and in view of said judgment and order, the Election Petition No. 2 of 2017 below Exh. 39 read Page 5 of 13 C/SCA/919/2018 JUDGMENT with Exh. 49 recorded the order of recounting of votes and after recounting the votes, allowed the petition by order dated 11.7.2017.
3.6 It is the case of petitioner that the Tribunal has tried the Election Petition No. 1 and 2 and has rendered two inconsistent judgments and in case of petitioner, it is recorded that in case of petitioner, full trial is required. The petitioner having been aggrieved and dissatisfied with aforesaid order of Tribunal, preferred present petition on the grounds mentioned in the memo of petition.
4. Learned counsel for the petitioner submitted that impugned order is contrary to law laid down by this Court in case of Shantiben Velabhai Dhila Vs Election Officer in Special Civil Application No. 7224 of 2017 decided on 3.5.2017, whereby this Court held that if there is no allegation made in relation to corrupt practice, only option left to the Election Tribunal is to call for the ballots and recount the same and relying upon said decision, the very Presiding Officer has allowed Election Petition No. 2 of 2017 and in case of petitioner has passed different order.
5. Learned counsel for the petitioner has submitted that the language of Section 31(7)(b) of the Act is imperative and same view has been taken by this Court in case of Shantiben Velabhai Dhila (supra) and therefore, learned Judge could not have taken any different view and would not have held that full fledged inquiry is necessary and Page 6 of 13 C/SCA/919/2018 JUDGMENT submitted that petition be allowed in terms of prayers prayed in the memo of petition.
6. Learned counsel for the respondent submitted that by filing an application before the Tribunal, the petitioner has made general and bald allegations against the procedure adopted by the Returning Officer. The respondent as well as the Returning Officer has filed reply against the said application and have denied the allegations. It is submitted that 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. It is required to prove by leading evidence and till the allegations made in the 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. In support of this submission, learned advocate for respondent no. 1 has relied upon decision in case of Jayantiben Bhikaji Thaveracha Vs. Rangaben Manaji Thaveracha, reported in 2003 (2) GLH 306 and submitted that the petition be dismissed.
7. Mr. Puj, learned advocate appearing for respondent no.1 contended that the order impugned needs no interference as the plain and simple reading of Section 31(7)(b) in juxtaposition of Rule 60 of the Gujarat Panchayats Election Rules, 1994, would clearly indicate that the recounting or counting envisaged by the Judge under Election Petition is in respect of the votes Page 7 of 13 C/SCA/919/2018 JUDGMENT considered to be valid votes only and hence, the dispute which is sought to be raised on specious plea of Returning Officer examining or discarding valid votes as 'invalid' would not broaden the scope of examination at the end of Judge under the Election Petition.
8. Shri Puj, learned advocate for the respondent no.1 emphatically submitted that Section 31(7)(b) even if assumes to be applicable, would be only permitting the recounting of the valid votes. The votes which have already been discarded on account of invalid vote is subject matter of scrutiny by the Judge.
9. Mr. Dave learned advocate appearing for respondent no. 3 submits that he supports the submission of Mr. Puj, learned advocate appearing for respondent No.1 and submit that Court may pass appropriate Court.
10. We have heard learned counsels for the parties and perused the documents on record.
11. In order to appreciate the controversy on hand, it would be most expedient to set out herebelow the Sub- section 7 of Section 31of the Act, which reads as under:
"Section 31: Determination of validity of election, inquiry by Judge and procedure :-
(7) (a) If on the holding of such inquiry the Judge finds that a candidate has for the purpose of the election Page 8 of 13 C/SCA/919/2018 JUDGMENT committed a corrupt practice within the meaning of sub-section (8) he shall declare the candidate disqualified for the purpose of that election and of such fresh election as may be held under section 33 and shall set aside the election of such candidate if he has been elected.
(b) If, in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected:
Provided that for the purpose of such computation, no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it:
Provided further that after such
computation if any equality of votes
is found to exist between any
candidates and the addition of one
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C/SCA/919/2018 JUDGMENT
vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in favour of such candidate or candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine."
12. Section 31 of the Act provides for determination of validity of election, inquiry by Judge and procedure. Clause (b) of Sub-section (7) thereof provides that If, in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected: The first proviso thereof provides that for the purpose of such computation, no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it. The second proviso provides that after such computation if any equality of votes is found to exist between any candidates and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in favour of such candidate or candidates, as the case may be, selected by lot drawn in the presence Page 10 of 13 C/SCA/919/2018 JUDGMENT of the Judge in such manner as he may determine. Thus, in the event a case falls under clause (b) of sub-section (7) of section 31 of the Act, all that the Judge is required to do is to scrutinize and compute the votes recorded in favour of each candidate and declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. The scope of the inquiry in a case falling within the ambit of section 31(7)
(b) of the Act is, therefore, very limited and all that the learned Judge while making the inquiry pursuant to the election petition presented before him is required to do is to scrutinize and compute the votes recorded in favour of each candidate and declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. Needless to state that before entertaining an election petition, the learned Judge is required to consider as to whether or not the petition has been presented within the prescribed period of limitation as contemplated under sub-section (1) of section 31 of the Act.
13. The Court is unable to accept the submissions canvassed on behalf of learned advocate for respondent no.1 in respect of narrowing the scope of examination only qua scrutiny of valid votes. In fact, had there been such an intention on the part of legislature than, nothing prevented the legislature for clearly mentioning the same, instead thereof, the close scrutiny of Section 31(7)
(b) clearly provides for scrutiny as well as computation. The word 'scrutiny' is employed by the legislature in Section 31(7)(b) would employed in its swipe. The votes cast by the voters in the election and this would also be Page 11 of 13 C/SCA/919/2018 JUDGMENT appropriate, as the learned Judge has given further power of even discarding the vote, which is said to have been obtained by employing corrupt practice as mentioned in Section 31(7)(a) of the Act. The Court therefore is of the view that the Rule 58, 60 and 61 of the Rules clearly indicate that discarding votes are also required to be accounted for and that in itself would indicate that the scope of scrutiny and examination at the ends of Judge under Election Petition cannot be said to be ousting scrutiny of the votes casted. The submission of counsel for respondent no. 1 if accepted and taken to its logical conclusion, then, it would amount to saying that once the Returning Officer discards the vote on account of his understanding, then, the said decision attained finality and is not amenable to judicial scrutiny and review, which cannot be attributed to the legislative wisdom and hence, we are unable to accept the submissions of Shri Puj, learned advocate appearing for respondent no.1.
14. In the above view of the matter, the petition is partly allowed. The matter is remanded to the learned Principal Civil Judge, Bhachau with a direction to forthwith proceed with the Election Petition No.1 of 2017 in accordance with provisions of clause (b) of sub- section (7) of section 31 of the Act and to pass an order under section 31(3) of the Act, as expeditiously as possible in accordance with law. The impugned order dated 29.11.2017 passed below Exh.34 in Election Petition No. 1 of 2017 by learned Election Tribunal Judge & Additional Civil Judge, Bhachau-Kutch is hereby Page 12 of 13 C/SCA/919/2018 JUDGMENT quashed and set aside. Rule is made absolute to aforesaid extent. There shall be no order as to costs.
(S.R.BRAHMBHATT, J) (A.G.URAIZEE, J) P.S. JOSHI Page 13 of 13